2000 PLP 652 (SCMR)

CH. MUHAMMAD ARIF, J.

Through this petition under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973 leave to appeal is sought against judgment/order, dated 16-12-1998 passed in Criminal Miscellaneous No.8 of 1998 in Cr. BCA No.293 of 1997 declining to expunge adverse remarks made by a learned Division Bench of the Peshawar High Court, D.I. Khan Bench in para. 8 of judgment, dated 18-6-1998, in Cr. BCA No. 293 of 1997.

2. It would be advantageous to reproduce para.8 of the impugned judgment, which reads thus:-- "

8. Before parting with the case, we may observe that when the aforesaid material facts were available on record which duly prove the petitioners to be the legal heirs of the deceased, the Judge below was not legally required to have made basis an incomplete and defective compromise for grant of bail in a murder case charging the accused/respondent by the deceased in his dying statement. By doing so some smell of illegal consideration comes out from his impugned order which is needed to be dig out. We, therefore, suggest a stern action against Mr. Abdul Sattar Khan Khattak who was the then Special Judge, Bannu by making an adverse entry in his ACR. A thorough judicial probe about his integrity should be conducted and he is required to be dealt with iron hands. Record of the case be sent back to the Court concerned forthwith. "

3. Criminal Miscellaneous No.8 of 1998 was dismissed by the High Court in the following terms:-- "This petition filed under section 561-A, Cr.P.C. is meant to review the order, dated 18-6-1998 passed by this Court in Criminal Miscellaneous No.293 of 1997 vide which bail granted to the accused/respondent therein in case F.I.R. No.328, dated 17-3-1992 of Police. Station City Bannu under section 302, P.P.C. was recalled and certain observations in para.8 of the judgement were made. The petitioner is aggrieved from the said observations and seeks its expunction through the application in hand.

2. We have considered the arguments advanced at the bar and perused the impugned observations. Under section 369, Cr.P.C., this Court cannot alter its findings already recorded in a criminal case and the instant petition, being without any meritable, consideration, is hereby dismissed in limine." It appears that the observations made in para.8 of the judgment in Criminal Miscellaneous No.293 of 1997 were not considered to be a fit subject for expunction of the remarks therein for the reason that under section 369, Cr.P.C. findings already recorded in a criminal case, cannot be altered.

4. The case of the petitioner is that while acting as Sessions Judge/Special Judge, Bannu he acted within jurisdiction while rendering order, dated 27-10-1997 whereby pre-arrest bail was granted to accused Inam Khan in s case under section 302, P.P.C. registered at Police Station Bannu City vide F.I.R. No.328, dated 17-3-1992 not on merits but on the basis of compromise. Further, the learned members of the Division Bench of the High Court could ill-afford to make the adverse remarks which they did, without calling upon/hearing the petitioner.

5. While providing details of the bail grant order, dated 27-10-1997, copy available at PP 36 to 40 of the Paper Book, Mr. S. Zafar Abbas Zaidi referred to paras.6 to 9 of the same which read thus:-- "

6. So far as the merits of the case are concerned, the petitioner is directly charged in the dying statement of the deceased. "CONTD: FROM OS: 2 DATED 27-10-1997 "The petitioner also remained absconder for about 5 years and an absconder loses some of his normal rights granted to him by the procedural as well as substantive law, therefore, on merits the petitioner is adjudged not entitled to the concession of bail. "

7. So far as the case of petitioner on the basis of compromise is concerned, all the legal heirs of deceased except his two sisters recorded their joint statement today in the Court and confirmed the factum of compromise with the petitioner. They also undertook that the two sisters of the deceased have also consented to the compromise. "

8. So far as the claim of Mst. Robina is concerned, a suit for restitution of conjugal rights between her and the petitioner Inam Khan is pending adjudication in the Family Court, Bannu and it shall be seen later on as to whether she is the widow of the deceased or not. Therefore, in the circumstances the accused-petitioner is allowed conditional bail in the sum of rupees one lac, with two sureties in the like amount each to the satisfaction of Illaqa Judicial Magistrate/Duty Magistrate. "

9. However, Mgt. Robina would be at liberty to move for cancellation of bail of the petitioner if she is proved to be widow of deceased Iqtidar Khan and similarly the two sisters of the deceased can also move for the cancellation of the bail of the peti;ioner if they have not consented to the compromise." The argument was that in addition to the disputed remarks having been made by the High Court without hearing the petitioner, his client had left the door wide open for not only Mst. Rubina (and minor-Zarkash) but also for two sisters of deceased-Iqtidar Khan to move for cancellation of bail of Inam Khan if (i) the former is proved to be widow of the, deceased and (ii) the, latter plead that they are not party to the compromise, According to the learned counsel for the petitioner, the learned members of the Division Bench of the High Court were in error in making the disputed remarks against his client.

6. The learned Advocate-General took the rostrum and made reference to the cases reported as Muhammad Riaz, Director-General, Pakistan Public Works Department, Government of Pakistan, Islamabad v. Murid Ahmed Baluch. Executive Engineer, Project Civil Division, Pak. PWD, Sahiwal (1998 SCMR 303). Muhammad Mukhtar Sheikh v. Aziz Ahmed.Hashmi (1998 SCMR 485), Raj Muhammad Khan v. Muhammad Farooq Khan (1998 SCMR 699) and Muhammad Ashraf Yusufi v. Muhammad Akbar Jahangir (1998 SCMR 2618) to contend that he feels duty bound to invite the attention of the Court to the law declared in the above-precedents to the effect that without providing an opportunity of hearing to a person similarly placed on the petitioner no adverse remarks could be made against him.

7. The ratio of the above-precedents is fully applicable to the case of the petitioner. We find that after obtaining information about the disputed remarks having been made against him by the learned Judge of the High Court in judgment, dated 18-6-1998, the petitioner did make an application under section 561-A, Cr.P.C. seeking expunction thereof, but to no avail. The reason advanced by the learned Judges of the High Court that under section 369, Cr.P.C. they are precluded from altering their "...findings already recorded in a criminal case..." does not cover the case in relation to the making of adverse remarks against a Judicial Officer while disposing of 'a criminal case' arising out of his judgment/order before the High Court. The judgment/order rendered of the High Court, dated 18-6-1998 in Criminal Miscellaneous No.293 of 1997 was not sought to be altered in petitioner's application under section 561-A, Cr.P.C. i.e., Criminal Miscellaneous No. 8 of 1998. In this view of the matter we are not inclined to uphold the impugned judgment/order, dated 16-12-1998 to the extent of the remarks in para. 8 thereof. So be it.

8. The above are the reasons for our short order of even date which reads thus:-- "For the reasons to be recorded later on, the petition is converted into appeal and allowed to the extent of expunging the remarks[ recorded against the learned Special Judge, Bannu, in para.8 of the l judgment of the High Court." M.B.A./A-209/S Order accordingly.