1994 PLP 795 (CLC)

(1) Ahsan Saleem v. Inspector‑General of Police, etc (1988 PLC (C.S) 193). (2) Muhammad Shamim v. M/s. Pakistan Tobacco Co. Ltd. (1975 SCMR 46). (3) Nazir Ahmad v. The Govt. of West Pakistan (1992 SCMR,1191). (4) Shafqat Mehmood Lodhi v. The Accountant‑General, West Pakistan (PLD 1968 Lahore 786). (5) Muhammad Sharif v. Addl. Superintendent of Police, Sargodha (1991 PLC (C.S) 584). (6) Abdul Razzaq v. The Secretary, Ministry of Communication, Govt. of Pakistan. (1990 PLC (C.S) 20).

4. Mr. Fazal Elahi Siddiqui, Advocate learned counsel for the respondents has vehemently argued that this writ petition is not competent inasmuch as the impugned portion of the order is to be read in continuation of the previous part of the order of acquittal and it does not necessarily mean that the impugned portion of the order relates to the service status of the respondents on 20‑10‑1992 and according to his interpretation does not stand in the way of petitioner to hold inquiry proceedings. Exact argument of the learned counsel is that the impugned portion of the order being not sverable from the main order no interference is possible in. exercise of Constitutional jurisdiction of this Court particularly when the remedy of appeal is also available to the petitioner which he has not availed of. In support of his contention learned counsel has placed reliance on the case of Shuja‑ud‑Din v. The State (1968 SCMR 1359).

5. I have considered the arguments addressed by the learned counsel for the parties and have gone through the record, and the case‑law cited at the Bar. Admittedly the learned Judge Special Court was seized of the lis regarding determination of criminal liability of the respondents Nos.1 to 60 on the basis of allegations contained in F.I.R. No.124 dated 21‑10‑1992. He has acquitted the said respondents from the charge levelled against them. The order of acquittal is complete even without the last sentence of the order which has been challenged before this Court. Reading of the impugned portion of the order shows that it in fact has no nexus with the previous part of the order passed by the learned Special Court and it can definitely affect and pre‑empt the jurisdiction of the petitioner to proceed against the respondents and, therefore, this portion being not necessary part of the original order, hence, is neither lawful nor with jurisdiction. Learned Judge, Special Court admittedly had no jurisdiction to decide except criminal liability of the respondents. If the disputed portion remains as a part of the order it will definitely effect the service relationship of the parties as it existed on 20‑10‑1992, and will also pre empt the future course of action which the petitioners may like to take against the respondents. Conversely if the impugned portion of the order is not there the real intention thereof is not at all changed and it remains to be an order of acquittal. Consequently the impugned portion of the order besides being without jurisdiction is entirely uncalled for and can easily be severed from the judgment without in any manner impairing its import and integrity, hence, I hold that the impugned portion of the order is illegal and is without a lawful authority and being uncalled for is liable to be deleted/expunged. Above view is supported by the law declared in case of Shuja‑ud‑Din (1968 SCMR 1359) referred to above by the learned counsel .for the respondents at pages 1360 and 1361 of which report it has been held as under:‑‑ "It may be stated that in another part of the judgment, the learned Magistrate has stated that he was constrained to hold that Ishaq Elahi and Shuja‑ud‑Din were directly responsible for issuing these loose cheques and both these officials were responsible for making payment on these cheques and they have committed gross negligence and misconduct in the whole affair. These ramarks have not been included for expunction in the application moved by the appellant under section 561‑A of the Cr.P.C. Mr. M.Zaman the learned counsel for the appellant has stated at the Bar that in a departmental inquiry against the appellant that has already taken place, the appellant has been exonerated and that the Bank is otherwise satisfied with his conduct in the Bank during his long period of service of well over 15 years. After hearing the learned counsel for the appellant and Mr. Bajwa for the State, we are of the opinion that the observation in the impugned remarks that the appellant should not be retained in the Bank staff any more, is irrelevant which should not have been made. _This remark, apart from being gatuitous loses all significance if, as stated by the learned counsel for the appellant the departmental inquiry has cleared him of his misconduct and the Bank i otherwise satisfied with his performance As the remark is entirely uncalled for and can be separated from the judgment without in any manner, impairing its integrity we would order it expunction This remark will therefore not form part of the judgment. As for the other portion of the impugned remarks, wherein the learned Magistrate has expressed his opinion about the gross misconduct of the appellant, we cannot justifiably order their expunction; firstly because they reflect the learned trial Magistrate's personal appreciation of the facts and circumstances of the case in relation to the appellant's conduct therein and secondly, because these remarks cannot be deleted from the judgment without mutilating the judgment as a whole and breaking its integrity." (Underlining is by me). Argument of the learned counsel for the respondents regarding availability of remedy of appeal and effect of non‑filing thereof, suffice it to any that the impugned petition of the order being patently without jurisdiction, argument las no force. Hence is repelled. Resultantly, I accept this writ petition and declare that the following portion 'of the order dated 27‑7‑1993:‑‑ "Position before 20‑10‑1992 is restored." as illegal and without a lawful authority and delete/expunge the same, hence iti ,hall not forms part thereof. Parties are left to bear their own costs. A.A./P‑81 /L Order accordingly.