1993 P Cr (PLP)

This application for expungement of remarks is moved on behalf of applicant Ahmed Abbasi son of Muhammad Sadiqullah, who is aggrieved by the adverse remarks made in the judgment, dated 3-8-1992 passed by the learned Special Judge (Central-I), Anti-Corruption, Karachi in Crimes No.26 of 1987 in the case of State v. Noorullah. The learned trial Judge convicted the accused Noorullah but in the judgment he passed certain remarks against the applicant for which the present revision application has been filed seeking expungment of those remarks. The said remarks, as contained in the last para. of the judgment are reproduced as under:-- "I am of the conclusion that P.W. Ahmed Abbasi who was posted as Divisional Manager P.S.O. at the time of the offence had showed his negligence in his duties and has not properly inspected the pumping station regularly to know that the accused is depositing the Government amount in the bank or not. This shows that Divisional Manager was sitting on the chair with closed eyes and he has no interest in his duties and he is coming under misconduct of service rules and he has facilitated to commit the crime by not putting any check over the accounts of the petrol pump of the accused and as such he is liable to punishment under the service rules for his negligence in the commission of the embezzlement of such a huge amount committed by the accused. It may be intimated to the Department and Ministry to take the action against Ahmed Abbasi." I have heard Mr. Khalid M. Ishaque, learned counsel for the applicant and Mr. S.Z.A. Qureshi, Advocate for A.-G. for State. It has been contended by the learned counsel that the applicant had appeared as a witness in the abovementioned case in which accused Noorullah was convicted but the learned trial Judge has passed adverse remarks against the applicant without hearing the applicant and without putting any question to the applicant on the point to prove that he was negligent in the performance of his duties. I le has further submitted that the deposition of the applicant was recorded by the trial Court, he was nether cross-examined nor any question was put by the Court and there was nothing on the record from which inference could be dram in the manner as has been done by the learned trial Judge. The learned counsel further submits that the said remarks are in violation of the Principle of Natural Justice as no opportunity was given to the applicant to defend his position. On the other hand the learned counsel for the State has opposed this application on the ground that the remarks have been passed by the trial Court which are inference from the evidence on record. I have carefully considered the points raised by the parties and I have also gone through the impugned judgment with the assistance of the learned counsel. It may be noted that the, applicant had himself lodged the report against the accused being F.I.R. No.7 of 1987. This was based on a news item which appeared in Daily Mashriq regarding malpractices committed by accused K.S. Noorullah who was posted as Manager of the Defence Service Station (Petrol Pump). He had directed scrutiny of account through the Account Officer of the Company and it came to light that from 8th May, 1989 the said accused had not been depositing the full amount/daily proceeds in the bank account of the Company. This amount came to Rs.21,93,153.40. On the basis of this report investigation was conducted, the accused was arrested and challaned before the Special Judge, Anti-Corruption (Central-I), Karachi. In the said proceedings the applicant was examined and his deposition was Exh.3. Apart from the applicant the prosecution examined 8 other witnesses. When the applicant was examined in the Court the accused had put only one question in cross-examination and the entire evidence of this witness went un-rebutted. The evidence of the other witnesses has been reproduced in the judgment and the perusal of the same shows that no material substance had come on the record, from which it could be inferred that the applicant was negligent in his duties or that he had no interest or that he had facilitated in the commission of this offence. It seems the learned trial Judge has formulated the duties of the applicant as Divisional Manager, P.S.O. either on some extraneous material or on surmises. For instance the learned trial Judge states that the applicant had shown his negligence in his duties as he has not properly inspected the pumping station regularly to know that the accused is depositing the Government amount in the bank or not. It may be noted that the learned trial Judge never called for any evidence to know what were the exact duties of the applicant, instead the learned trial Judge has passed the above remarks simply on the assumption that the applicant was a Divisional Manager and, therefore, it was his duty to inspect the pumping station. Similarly the learned trial Judge ' has formed a view that the applicant had no interest in his duty and he has facilitated to commit the crime by not putting any check over the account of the petrol pump. If this reason of the learned Judge was correct one fails to understand why the learned Judge did not make the applicant as co-accused in this case for having facilitated the offence. In other words it appears that the learned trial Judge has not only levelled accusations against the applicant but in fact he has judged them to be correct on the basis of conjectures and surmises, virtually finding the applicant to be guilty of negligence liable to be punished under the Service Rules, not realising that in doing so he has virtually condemned the applicant unheard. It may be noted that if the learned trial Judge was of the view that the applicant was guilty of negligence etc. then what prevented the trial Court from putting Court questions to the applicant when he was examined in the Court. These remarks not only affect the career of the applicant but the same are nothing short of character assassination. Moreover, these remarks do not form an integral part of the judgment. They are extraneous to the evidence on record, imaginary in nature, having been formulated on bare hypothesis, unwarranted in the circumstances of the case, and, contrary to the principle of natural justice, therefore, the same are liable to be expunged. From the above discussion it is crystal clear that the disparaging remarks have been made against the applicant in a separate paragraph and those remarks have no bearing on the witnesses or guilt of the accused. Though the applicant was a witness in this case but there was no other material on the record from which such remarks could be inferred. As already discussed hereinabove the said remarks are based on surmises and conjectures and do not form integral part of the judgment. Therefore, the same can be conveniently excluded from the said judgment without affecting the merits of the case. In the above circumstances I convert this revision application to one I under section 561-A, Cr.P.C. While exercising the inherent powers I order that the aforesaid remarks be expunged from the judgment dated 3-8-1992. This I application is accordingly allowed, disparaging remarks stand expunged and it I shrill be deemed as if the same were never passed. N.N.Q./A-1377/K Application accepted.