P (PLP)

MUHAMMAD MUNIR, C. J.-This is a rule, issued suo Motat on the information supplied by Mr. M. A. Rahman, Additional District and Sessions Judge, Layallpur, by his letter dated the 19th August 1919 addressed to the Registrar of this Court, requiring Mr. Hamid-ud-Din, Additional District Magistrate, Jhang (now posted at Dera Ghazi Khan) to show cause why certain remarks which he made about Mr. Rahman in his judgment dated the 8th July 1949 in Fazal Shah v. Mohammad Asghar and 6hulam Jilani be not expunged, Khan Bahadur Mushtaq Ahmad has appeared in support of the rule while Mr. Hamid-ud-Din has opposed the rule on the grounds stated in his letter to the Regis trar dated the 9th November 1949. There is some unpleasant history behind this rule, Fazal Shah. Reader to Mr. Rahman, is a refugee from Hoshiarpur, Khadim Hussain and Muhammad Nazir also belong to Fazal Shah's native village in the Hoshiarpur district and are his Murids. It appears that they were allotted house No. 590 in Jhang in Mohalla Budhe wala for residence and as Fazal Shah could not get a house for himself, he was putting up with them in the same house. Subse quently the Rehabilitation authorities of the District allotted this house to Wali Dad, Telephone Operator, and on the evening of 23rd February Muhammad Asghar, Head Constable, under the orders of his Station House Officer, went to the house in question to eject Khadim Hussain and Muhammad Nazir and to put the new allottee in possession. Khadim Hussain and Mohammad Nazir went to Fazal Shah, who was attending to some work in the office of the Sessions Court, and informed him of their ejectment. Fazal Shah himself came to the house and sent Khadim Hussain and Muhammad Nazir to the District Rehabilitation Officer to obtain a stay order. Muhammad Asghar, however, had in the meanwhile ejected the occupants and entrusted the household effects removed from the house to Muhammad Nazir's mother. It is alleged by Fazal Shah that the requisite stay order was brought and that while under the authority of that stay order he, Khadim Hussain and Muhammad Nazir were engaged in putting back their things in the house, Muhammad Asghar, Head Constable and Ghulam Jilani, A. S. I., accompanied by some other constables arrived at the scene and asked Fazal Shah how, when Khadim Hussain and Muhammad Nazir had been ejected from the house, they had again obtained possession of it. On this there was an altercation between the police officers on the one side and Fazal Shah, Khadim Hussain and Muhammad Nazir on the other. Fazal Shah alleges that he was abused and assaulted while the police officials deny the allegations and say that what was done was completely in order and that Fazal Shah was in wrong. On the following day Fazal Shah reported the facts by means of a written petition to Mr. Rahman who sent the original report to the District Magistrate with a semi-official letter and a copy of that report with a similar D. O. to Mr. masud Aziz, superintendent of Police. The D.O. to Mr. Masood Aziz reads as follows:- "Dear Masood Sahib:

I am sending herewith a copy of the complaint of Sayed Fazal Muhammad Shah Reader of my court. The original com plaint has been sent to the District Magistrate. It is mentioned by him in his complaint that he was assaulted and beaten by Asghar Khan Head Constable and Ghulam Jilani A. S. I., Police. The matter, if true, is a very serious one. I would request you to please make personal enquiries into the matter and award exemplary punishment to the official at fault. If the police treats responsible Government ser vants in such a high-handed way, I wonder what shall become of the ordinary public. I expect that you would let me know about the action taken by you in the matter." No action having been taken by the District Magistrate or the Superintendent of Police, Fazal Shah on 2nd March 1949 put in a formal complaint against Asghar Khan and Ghulam Jilani in the Court of .the District Magistrate under sections 323, 500 and 504 of the Indian Penal Code. It was alleged in this complaint that the complainant's things were thrown out of house No. 590 by the police on 22nd February 1949, that on the intercession of the neigh bours these had again been put into the house until reconsideration of the matter by the authorities on the following day, that on the evening of 23rd February 1949 the complainant learnt while in Court that his things had again been thrown out by the police, that on this he sent Muhammad Nazir to obtain an allotment order from the District Rehabilitation Officer and himself repaired to the house where he found Asghar Khan and Ghulam Jilani present that he asked Asghar Khan and Ghulam Jilani to wait until he brought an order from the District Rehabilitation Officer, that later Muhammad Nazir brought an allotment order in the name of Umar Bakhsh and Abdul Aziz and a stay order for the police, that on the authority of this order be had started putting back his thinks in the house when Asghar Khan and Ghulam Jilani again came to the house and enquired from him why he had again entered into posses sion and; that on his representing that the Louse had been allotted to him Asghar Khan and Ghulam Jilani began to abuse him and beat him. It seems that this complaint was presented to Mr. Hamid-ud-Din himself as Additional District Magistrate and he held a preliminary enquiry into the matter. On 6th April 1949 he seemed to be of the view that a prima facia case under sections 323 and 504 existed and issued process to both the accused persons. Thereafter the case took its usual course. The complainant produced all his evidence and the accused persons theirs. Mr. Hamid-ud-Din delivered a lengthy judgment on 8th July 1949 acquitting both the accused persons and passing some strictures against Mr. Rahman Mr. Hamid-ud-Din first discussed the legal aspect and held that even if force was proved to have been used by the accused police officers, they had a right to do so while enforcing the ejectment order. He then discussed the factual aspect of the case and came to- the conclusion that Fazal Shah had grossly exaggerated the matter by alleging that he was beaten and threatened to be handcuffed. Replying to the argument of the prosecution that Fazal Shah would not have made a complaint unless the facts alleged by him were true and he had in fact been insulted, abused and roughly handled, the learned Magistrate observed:- "This brings us to a point which must in fairness to the prosecution be discussed at 'some length. The learned counsel for the complainant have laid great emphasis on the argument that the complainant had no motive to bring a false complaint. He is a respectable and educated person. Why should he had undergone the humiliation and trouble involved in coming to court, if he had not in fact been beaten and abused? The statement of accused, the evidence given; by them in defence, the circumstances of the case and the letter (Exh. D. A.) written by the learned Additional District and Sessions judge, give a complete reply to this argument. Fazal Muhammad Shah has a very high notion of his position as Reader to the Sessions judge and he felt it as a personal insult when the house was vacated. Ordinarily he should not have felt it, for he had nothing to do with the matter. He was neither the allottee nor the main occupant of that house, he was at best a sort of guest. If any one was insulted, it was Khadim or Nazir out he poked his nose in the matter because he thought he had a privileged position being Reader to the Sessions Judge. And so he interfered and threatened the accused that the Sessions judge was in his hands. But the accused did not yield to his threats and he had then no alternative but to make false allegations of maltreatment and bring a false complaint to get the accused punished and have his honour or position vindicated. "The accused wanted to lead evidence to prove this point to the hilt by showing that the complainant's threats were not mere empty words and that the Sessions judge really did support him and everything done by him was done at the instance of the Sessions Judge. They put in a long list of official and non-official witnesses in whose presence the Sessions judge had been openly talking about the case in the club. They even wanted to summon the Sessions Judge under section 257, Cr. P. C. to cross-examine him on all the relevant points vide his talk in the club, his talk with the S. P. for severe punishment to the accused and their transfer and his sending the complainant to the D I. G. With the exception of the S. P. I. refused to summon these witnesses. The S. P. appeared in defence (D. W. 11) and stated that the Sessions judge wrote letter Exh. D. A. to him and. also verbally asked him to award severe punish ment to the accused. He further said that on one occasion the Sessions judge made interested remarks about this case in the Club. I do not want to comment on the oval evidence, but the letter Exh. D. A. which the complainant has himself admitted (as court witness), was written by Ch. Abdur Rahman, Additional District and Sessions judge speaks for itself. There is no doubt that in writing this letter the learned Sessions Judge allowed his zeal for his Reader's cause entirely to outrun his discretion. It was not very proper on the part of a high judicial officer of the rank of a Sessions judge to write such a letter which clearly betrays his extraordinary personal interest in the matter. To this extent at least the allegation of the accused with regard to the interest of the Sessions Judge on behalf of his Reader is justified." Mr. Rahman feels aggrieved by the whole tenor of the order and particularly the underlined portion in the passage quoted above. After hearing learned counsel for Mr. Rahman and perusing the explanation of Mr. Hamid-ud-Din, I am satisfied that the underlined passage should not have appeared in the judgment. It is quite clear to me that Mr. Hamid-ud-Din has made a strain ed effort to cause to appear to be relevant what in fact was wholly irrelevant. Mr. Rahman had not appeared as a witness in the case and the propriety or otherwise of his writing a semi-official letter to the. Superintendent of Police was not in issue in the proceedings. There is no suggestion in the judgment anywhere that Mr. Rahman himself influenced any of the witnesses or procured any evidence in the case or that, for any other improper motive, he espoused the cause of his Reader knowing it to be unfounded. It seems to me that Mr. Rahman believed to be true what had been reported to him by Fazal Shah and in that convic tion drew the attention of the Superintendent of Police to what he considered to be high handedness on the part of his subordinate police officials, and as the person complaining was his own Reader, there was nothing improper in Mr. Rahman's asking for a departmental redress for him by requesting the Superintendent of Police to make a personal enquiry into the matter and to award departmental punishment to the officials concerned if he found them to have acted in a wrongful manner. This view of Mr. Rahman's letter was not a charitable view but the only reasonable view that could be taken. There was no warrant for Mr. Hamid-ud-Din to say that Mr. Rahman's zeal for his Reader had entirely outrun his discretion or that such conduct on the part of a high judicial officer betrayed an extraordinary personal interest in the matter. There would have been an occasion for these remarks if Mr. Hamid-ud-Din had found that for some improper motive Mr. Rahman was interested in his Reador's cause whether it was right or wrong or that he had any personal animosity against the two police officials who had been accused by his Reader. That these remarks were not actuated by an honest desire to further the ends of justice appears to me to be further clear from the relations of Mr. Rahman and Mr. Hamid-ud-Din which had existed before this judgment was delivered. Mr. Rahman has alleged, giving particulars of certain cases, that in those cases he had himself made adverse remarks against Mr. Hamid-ud-Din's con duct as a Magistrate. Thus the relations between the two officers were far from being happy or cordial and the cliques among the officers of the district before this judgment was delivered bad acquir ed such wide publicity and notoriety that they had almost become a scandal in the Province, it is, therefore, reasonable to conclude that Mr. Hamid-ud-Din made this alleged objectionable conduct on the part of Mr. Rahman an occasion for lowering him in the eyes of the officers and the public. He does not seem to have realised the basic position that he was criticizing the conduct of an officer who was not a witness before him, the propriety of whose conduct was not relevant to the inquiry and who was Mr. Hamid-ud-Din's own appellate authority. It may be, though the joint is not be fore me, that Mr. Rahman himself was not justified in passing strictures in his judgment against Mr. Hamid-ud-Din. From some orders which have been referred to by Mr. Rahman himself in his letter to the Registrar it appears to me that he is quite lavish in passing strictures on subordinate judicial officers and police officers. I do nut know whether these strictures were or were not justified in the cases they were passed, but if another case heard by a Division Bench of which I was a Member (Murder Reference No. 126 of 1949-Crown v. Dalmir) and which has been relied on by Mr. Rahman in his letter to the Registrar be representative of the circumstances in which Mr. Rahman feels free to record adverse remarks, then it appears to me that he is not aware of the limits within which it is permissible for a judge to do so. In that case a murder. was alleged to have been committed by two persons at the instance of a third person. One of the murderers was arrested by Ch. Muhammad Aleem, Sub-Inspector, two days after the murder on the evidence discovered by him. At that stage the Sub-Inspector was transferred by the Super intendent of Police and the investigation put in the hands of a D. S. P. The investigation continued for more than a year though an incomplete report was put in against the arrested man on 23rd November, 1948. The other two men not having been apprehend ed, the arrested man was tried by Mr. Rahman and convicted. Commenting on the transfer of Ch. Muhammad Aleem and the subsequent investigation, Mr. Rahman in the course of his judgment made the following observations:- "I must point out that the case was investigated by Ch. Muhammad Aleem, Sub-Inspector very efficiently, honestly and intelligently. He reached the spot soon after the occurrence and did not delay the investigations of this case. He succeeded in tracing out one of the culprits, namely, Dalmir, accused. When the investigations of the case were at their full height and swing, unfortunately, this Sub-Inspector was transferred on 20th June, 1948. His transfer at this critical stage was most inopportune. The Sub-Inspector was successful in finding out the clue of this murder, the motive behind it and the persons who perpetrated it. The investigations of the case later on fell into incompetent hands. The result was that nothing material was done in this case from 20th June, 1948 to 19th May, 1949 when the trial of this case was taken up by this Court. In other words, nothing particular was done for a period of about one year. "So, this transfer of Ch. Muhammad Aleem, Sub Inspector and at such a stage proved as an indirect help to the absconders as well as to the actual perpetrators. This gave a chance to the relatives of Dur Muhammad, deceased, to lose their confidence in the Administration of justice and to complain against the investigation of this case. The other offenders were naturally not brought to book and escaped," Neither the authority responsible for the transfer of Ch. Muhammad Aleem nor the D. S. P. nor any other officer succeeding Ch. Muhammad Aleem in the investigation of the case had appeared as a witness in the case nor was their any evidence on the judicial record of the subsequent steps taken by the police in the investigation of the case. The abettor of the murder appears to have been an influential party in the district and Mr. Rahman seems to have formed the opinion that with the exception of Ch. Muhammad Aleem the police officers who investigated the case, including the Superintendent of Police who was responsible for the transfer of Ch. Muhammad Aleem, had been bought by the abettor, with the result that a grave injustice had been done to the family of the murdered man who lost all confidence in the administration of justice. If all this had been said by Mr. Rahman after lie had held full inquiry into these suspicious circumstances and the officers concerned had been afforded an opportunity to explain the circumstances but failed to satisfy him, the remarks would have been justified and it would have been the duty of Mr. Rahman fearlessly to expose this alleged injustice. But none of the officers concerned having been examined and there being no indication on the judicial record of the reasons for the transfer o.' Ch. Muhammad Aleem and of the steps taken in the investi gation of the offence subsequently to his transfer, Mr. Rahman's remarks virtually amounted to a wholesale condemnation of the Superintendent of Police and the investigating officers with the exception of Ch. Muhammad Aleem without their having been heard in defence and constituted a contravention of the rule restraining a judicial officer from condemning a man unheard The power of propriety of making adverse remarks against Subordinate Courts in appellate judgments is governed by different consideration, the rule-against the making of such remarks without hearing the person affected being from the very nature of the case 'inapplicable to such cases. As full particulars of the cases in which Mr. Rahman made adverse remarks against Mr. Hamid ud-Din are not before me, and Mr. Hamid-ud-Din made no grievance of it, I am not in a position to pronounce on their propriety or otherwise. The fact, however, that such remarks were made repeatedly is admitted by Mr. Rahman himself, and I should be greatly surprised if Mr. Hamid-ud-Din deserved all these compliments because he is an officer of considerable judicial experience and the very judgment of which Mr. Rahman complains is sufficient to show that whatever other qualifications or defects Mr. Hamid-ud-Din may have, he could not be so incompetent or ignorant of law as to deserve occasional depreciatory remarks from his appellate authorities. It appears to me to be very highly probable, and this is Mr. Rahman's own reference to Mr. Hamid ud-Din did not like the frequent observations that were being made by Mr. Rahman on his work and in sheer retaliation decided to pay Mr. Rahman in his own coin. He seems to have been provoked by Mr. Rahman's own references to him in his orders into making the remarks to which Mr. Rahman objects, and that precisely is my reason for deciding to expunge them from the judgment. Lately several cases have come- to my notice where remarks in judgments have been keenly resented by persons about whom they were made and I must utilize this opportunity to explain the limits within which they may rightly be made. Disparaging remarks in a judgment, whether they amount to a verdict or not, imputing crime, moral delinquency or improper conduct to a person are a constant source of uneasiness and irritation to him. They lower him in the public estimation and haunt him like a spectre for life, invariably visiting him when ever he enters the precincts of a Court of Justice as a witness or a party. Being fraught with such serious consequences they should only be made where any hesitation or reluctance in making them would impede the ends of justice. Persons making or publishing such remarks whether true or not, are not liable for libel or for defamation because in the former case they are protect ed by common law and in the latter by statute, the reason being that unless judges had the power to make bold and fearless comments on the evidence given before them they would not be able effectively to discharge their functions. These two conflicting considerations must al-ways be present to the mind of a judge whenever he is caved upon to criticize the character and conduct of a person. On the one hand he-should weigh the gravity of the damage that his remarks would cause to the person concerned and on the other he must realise that he owes a duty to the parties, the public and the appellate Court of stating in full his reasons for the view he takes of the evidence. It is again a rule, as ancient as the law itself and based on common sense and fair play, that when a judge decides to condemn a man whether a party or witness the facts on which condemnation is intended to be based must be put to him so as to give him an opportunity to explain the condemnatory facts and thus to remove the judge's suspicion about his conduct. A judge who condemns a man unheard acts as unfairly as if he were to convict a man without hearing, him in his defence. Persons who are attributed ignominious or improper; conduct in judicial determinations, though they were neither parties nor witnesses in the cause, have. therefore, a just cause for complaint against this unfair treatment and the law reports are full of precedents where in the circumstances mentioned High Courts expunged the offending remarks. The need for caution in making such remarks is much greater where the person disparaged is a public servant acting in his own independent sphere. In such cases it is absolutely necessary that the judge's suspicion about his conduct be communicated to him and an opportunity given to him to show cause against. the view that the Judge is inclined to take of his conduct. If the' officer concerned has not at all appeared before the judge and has had no opportunity to vindicate himself, the judge acts most unfairly, not actually without jurisdiction, in commenting adversely on his conduct. And a Judge who makes his position in Court a mere pretext to condemn another person for personal reasons does not act as a Judge at all he is a mere party who has arrogated to himself the position of a judge. Remarks about the lower Courts in appellate judgments are governed, as I have already stated, by different principles, Strong and unpleasant criticism of subordinate judicial officers is not always necessary where the appellate Court takes a different view of facts or law from the one taken by the lower Court. To disagree from the conclusions of the lower Courts and to reveres or mollify their decisions is an ordinary incident of appellate jurisdiction. But a strong rebuke in every case is not a necessary result of such difference. And as a rule strong remarks abort a lower Court must he avoided unless tile judgment under appeal clearly discloses intellectual dishonesty or gross in competency on the part of the lower Court. In the preset case I am satisfied that Mr. Hamid-ud-Din was led to make the remarks to which Mr. Rahman objects because the latter indulged in unrestrained criticism of the former in his appellate orders. The result has been rather unfortunate and its effect on administration deplorable. When judicial officers in a district start going for each other in their judgments, they make the Courts a laughing stock of the public, bring the administration of justice into disrepute and undermine the confidence of the public in themselves. And the position becomes almost ludicrous when Magistrate who are subject to the appellate jurisdiction of the Sessions judge do not hesitate, and do not see the impropriety of, making uncalled for and disrespectful references to him. I am convinced that the remarks objected to were the result of personal feeling that existed between Mr. Hamid-ud-Din and Mr. Rahman and that Mr. Rahman having neither appeared as a witness in the case nor there being any suggestion that for personal reasons he influenced the evidence against the accused police officers, the remarks which are not an integral part of a relevant argument must be expunged. I, therefore, order that the underlined portion in the passage of Mr. Humid-ud-Din's judgment reproduced above be expunged. Since I have not been able to examine the justification of the remarks made by Mr. Rahman against Mr. Humid-ud-Din which led to the objectionable remarks in question, I do not wish that anything I have said here should affect the career of either of these officers. Reference accepted.