2000 PLP (C (PLC(CS))

'He (i.e. the Appellant) should be careful in passing his orders as in one bail matter he over stepped;' (iii) relying upon the above, the counsel for the respondent has submitted that the claim of the, appellant in relation to unblemished record is totally incorrect. (vi) with regard to non‑supply of entire ACR and the delay in communication of remarks contained therein reliance has been placed on WAPDA v. S.M. Rizwan Abidi, 1994 SCMR .238 wherein it has been held that the complete copies of the ACR need not be supplied to civil servant. No delay in communicating such report by itself can justify the civil servant in getting the adverse remarks expunged; (v) with regard to the instructions about ACRs it is submitted that the same are not applicable to the High Court, its employees. and Judges of the subordinate Courts since the same only applies to the civil servants who are in the executive branch of the Government; (vi) in relation to the averment that Mamoon Kazi, C.J., (as he then was), could not competently write the ACRs of the appellant with regard to the appellant's work in 1994 and 1995 since the Hon'ble Chief Justice at that time was performing functions in the Supreme Court, it was submitted that the complete record was before the Hon'ble Chief Justice and he could on, the basis of such record give the adverse remarks.

6. In further reply to the written statement filed by the Registrar, the appellant through written arguments filed on 14‑12‑1998 stated as follows:‑

(a) the Registrar i.e. Mr. Wahid Bux Brohi (now a Judge of this Court) has wrongly informed the Court that the appellant enjoys a blemished record due to the mala fides of the Registrar; (b) Year-wise summary has been offered by the appellant to show how that he has enjoyed an unblemished record; (c) with regard to the two instances, the appellant has stated that firstly the complaint by Mr. Fazal Akhtar Qureshi, Advocate was directed against his Peshkar and not the appellant himself, secondly, with regard to the stricture and disciplinary proceedings arising out of his bail order he has stated that the same do not question his integrity and in any event against the same he has himself filed another appeal. Accordingly, the facts relatable to the event may not be mixed up with the present case; (d) with regard to the decision of the Hon'ble Supreme Court in WAPDA v. S.M. Rizwan Abidi (cited supra) it has been contended that ‑the same is per incuriam and should be ignored as the same has been decided extraneous to law. In this regard he has placed reliance upon Maulana Qari Zahir Qasmi v. Abdul Wahid Khan PLD 1975 Kar. 66 wherein it has been observed that per incuriam decisions are those where the Court has acted in ignorance of a previous decision of its own or of a Court of coordinate' jurisdiction; (e) it is further contended that with regard to the Government of Sindh Instructions about ACRs, the same are very much applicable.

7. We have exhaustively heard the arguments of the learned counsel for parties, perused the proceedings and the law on the point.

8. The contention of the appellant that his record is totally unblemished does not appear to be correct. It has been correctly pointed out by the Respondent that earlier there had been a complaint with regard to the matters dealt by the Appellant in the two rent cases referred above. The complaint in that case had come from Fazal Akhtar Qureshi, Advocate and on that score the then Hon'ble Chief Justice had already directed the Appellant to be careful. Whether or not a prior counseling is a mandatory requirement of law before adverse remarks could be tendered would not become an issue since the remarks of the then Hon'ble Chief Justice through his minutes, ated 5‑9‑1989 admonishing the Appellant to be careful constitute the requisite counseling. Though we have noted that in the written statement the Registrar has conceded with regard to lack of consoling that the record is silent, however, we feel that the minutes, dated 5‑9‑1989 have provided ample counseling. Apart from this in another case concerning bail as pointed out by the Registrar the Hon'ble Chief Justice has once again advised the Appellant to be careful as he was found to have over stepped his power end authority under law in granting the bail. The Appellant has tried to justify these two events by stating that the complaint in the rent cases were directed against his Peshkar and that the matter regarding the bail is distinct from the present proceedings. The explanation offered by the appellant is not satisfactory since the minutes of the Chief Justice, dated 5‑9‑1989 advising him to be careful were not directed against his Peshkar but against him. As such the appellant cannot turn around and shift his own blame to his Peshkar. With regard to the bail matter, it is correct that the same is a subject matter of independent proceedings. However, when the appellant himself says that his record is throughout unblemished, the authorities and the Courts are fully competent to scrutinize his entire record, whether past, present or future (current). The allegations made by the appellant against the Registrar touching upon mala fides are also meritless since no aspects of mala fides have been specified, detailed or particularized. In the absence of any such particularization the averment of mala fides go unsubstantiated (see Federation of Pakistan v. Saeed Ahmed Khan, (PLD 1974 SC 151).

9. On the point regarding lack of specific allegations touching upon controversial integrity we feel that in matter of corruption no direct evidence would normally be available in Muhammad Suleman Junejo v. Chief Secretary, Sindh, 1980 PLC (CS) 694 it was held that in cases of corruption and malpractice by a civil servant, it is the reputation that travels far and wide; direct evidence is hardly possible as the litigant who pays illegal gratification and gets his work done is not expected to come forward and give evidence and in this regard; the adverse general reputation is enough to take action. This was also a case concerning a Civil Judge who had been dismissed on grounds of misconduct as he was found to be of bad repute. We have been able to lay our hands on other judgments concerning the subordinate judiciary where the accused Judge was found to be of persistent bad reputation. One case is Mulazim Hussain v. Government of Sindh, 1985 PLC (CS) 62, wherein the Accused Officer, who was an Additional District Judge was found to have a persistent reputation of being corrupt on the basis of complaints of office bearers of the bar association. The preliminary enquiry was conducted by a Judge of the High Court and a charge‑sheet was served as a result of the enquiry. During the enquiry Senior advocates appeared as witnesses before the Enquiry Officer stating that they had heard that the Appellant had received bribes in a number of cases. Even the bar association had passed a resolution against the appellant. The appellant was dismissed from service and his consequent appeal against the dismissal before the Service Tribunal was rejected. In another case i.e. Muhammad Yousuf v. Government of Sindh 1988 PLC (C.S.) 745 the appellant, who was also an Additional District Judge enjoyed persistent reputation of being corrupt. Departmental enquiry was conducted and the Chief Justice upon such complaint of corruption issued the Appellant warning to be careful in future end guard his reputation. The enquiry report contained testimonies of as many as 20 Advocates who deposed against the Appellant as being a corrupt Judicial Officer. An argument was raised that these witnesses were unable to give any concrete evidence against the Appellant accepting bribes. The argument was repelled and the appeal directed against dismissal was rejected.

10. We are passing through hard times where the society and value have fundamentally deteriorated and there are rampant allegations of corruption against the members of the subordinate judiciary. It is an unfortunate situation where the protectors of the rights of the citizens of this country are found unscrupulously involved in acts of corruption and malpractices. In the light of the prevalent circumstances it is more desirable for the Chief Justice of the Province, who is the highest judicial functionary of the Province, to enjoy more liberal powers to check the subordinate members of the judiciary, most stringently and effectively. It would not be out of place to mention here that under Article 203 of the 1973 Constitution the High Court enjoys the power of supervisions, superintendence and control overall its subordinate Courts. Commenting upon such comparable powers found in section 223 of the Government of India Act, 1935, a Full Bench of the erstwhile Sindh Chief Court in Emperor v. P.C. Tarapore, AIR 1940 Sindh 239, found such power to include the power to guide, advice and encourage Magistrates in the faithful discharge of the judicial duties. In re Allamali Mubaliar AIR 1953 Madras 362 the powers of superintendence were found to include the power to take disciplinary action for flagrant mal‑administration of justice. Similarly, in relation to Article 102 of the 1962. Constitution which is comparable to the present Article 203 of the 1973 Constitution it has been held in Karim Bakhsh v. Mubarik Jan, PLD 1970 Pesh. 169 that the High Court has the authority to check and prevent dereliction of duty. Once again in Iftikhar Ahmed v. MCB, PLD 1984 Lah. 69, the Lahore High Court has recognized the power of the High Court under Article 203 to include the power to take disciplinary action against subordinate Courts, which is necessary to inspire confidence.

11. The judgment cited by the appellant on the score that there must be distinct, different, concrete and cogent evidence with specific illustrations regarding taking of bribes would be impossible to comply with. In M. Saleem Junejo (cited supra) it has been correctly observed that direct evidence of accepting illegal gratification is nearly impossible to be obtained. This of course does not mean that the members of the subordinate judiciary would be left completely at the whims of the reporting or authorized officers, since it is collaterally expected from the later to exercise their discretion strictly in accordance with law. In taking actions against the members of the subordinate judiciary on account of corruption and misconduct the foremost factors are the general reputation, being reputed to be corrupt, complaints or specific allegations by the Advocates and the litigants (for further details see para. 13 below). However, here we dwell down upon dangerous territories since the allegations of corruption against the Judges and the winning Advocates by the losing litigants and their Advocates have also become the order of the day and accordingly these reverse mala fides cannot be ruled out. It is indeed a very unfortunate predicament that while an honest and painstaking efforts is made by a Judge in writing a judgment coupled with equal efforts by some counsel on account of their sheer diligence, brilliance, interest and merited work, the other counsel take to professional jealously and propagate meritless, vexatious and frivolous concoctions.

12. Corruption is a pervading menace. According to S.S. Gill in "The Pathology of Corruption", 1998, first edition, published by Harper Colins in New Delhi, at p.269:‑‑ "Corruption is not a static phenomenon. It feeds on itself and, like cancer, it keeps spreading and eating into the vitals of the system, When somebody wanted Edward Gibbon to tell in one word the cause of the fall of Roman Empire, he said, 'Corruption', and added, 'Yes, corruption amorality and lust for power destroyed the Roman Empire which ruled almost the entire known world for more than 300 years. In India we never had the present level of corruption before. It has become the single greatest threat to the stability of the State. Befods and Hawala Scandals have nearly destroyed the mighty Congress. Criminals are threatening to take over the polity. In their Golden Jubilee speeches both the President and Prime Minister described corruption as the greatest challenge facing the country. Soon thereafter the P.M. set up a special cell to deal directly. with corruption cases brought to his notice." The author, S.S. Gill, in his above referred book has observed that the ancient Egyptian, Babylonian, Hebrew, Chinese, Greek and Roman civilizations were infested with varying degrees of the "malady" of corruption, and some were even destroyed by it. Talking of corruption, S.S. Gill has further observed that:‑‑ "Corruption fueled the French and Russain Revolution, and the Kuomingatang regime of China collapsed under its weight." (See the Preface). S.S. Gill in his book has further relied upon the Rig Veda for references to bribery, while the Old Testament (Book of Exodus) has been quoted for the following warning:‑‑ "Beware of accepting bribes; they blind even the prudent, and disturb the judgment of even the just." Mehmad Pasha (1717) has been quoted in S.S. Gill's book in relation to the seditious and pervasive effect of corruption in the following words:‑‑ "Bribery is the beginning and root of all illegality and tyranny, the sources and foundation of every sort of disturbance and redition, the most pervasive of evils and greatest of calamities. Than this there is no more powerful engine of injustice and cruelty, for bribery destroys both faith the State." Gill's book, a through provoking and well‑researched analysis of corruption has also quoted Quaid‑e‑Azam Muhammad Ali Jinnah on the rampant corruption even at the time of independence, who while addressing the Constituent Assembly of Pakistan on 11‑8‑1947, stated that:‑‑ "One of the biggest curses from which India is suffering‑‑I do not say that other countries are free from it, but I think our condition is much worse‑‑is bribery and we must put that down with an iron hand and I hope that you will take adequate measures as soon as it is possible for this Assembly to do so. (p.46 of Gill's book) The Holy Qur'an has condemned corruption. Bribery is referred to as a payment made with the intent to take an undue advantage at the cost of another. The Holy Qur'an speaks:‑ "And do not eat up your property among yourselves for vanities. Nor use it as a bribe for the Judges with the intent that you knowingly and wrongfully take an advantage at the cost of someone elase." (II. 188, Al‑Quran quoted from "The Digest of Holy Quran" by Prof. Masudul Hassan). Islam lays great emphasis to the concept of fair justice. The Judges are expected to impart justice without fear and favour, though tempered with mercy. The great Caliph Hazrat Umer is quoted to have said that a single act of injustice is sufficient to drive a Muslim out of the fold of Islam (see "Law and Justice, Havoc or Harmony" by M Inamur Rehman Alvi, 1985). According to Schawartz, in "A commentary on the Constitution of the United States Powers of Government", the quality of justice depends upon the quality of men who administer the law rather than the contents of law itself. We have to be careful in' view of the rampant deterioration in the society. Though while sitting in this Court or Tribunal we do not think that we could bring about a revolution through social reforms but some needful can be done since law, both codified and judge made, is now reckoned to be an instrument of social change globally.

13. As already explained in para. 11 above, when taking action against a member of the subordinate judiciary, regards must be had to his overall general reputation, reputation of being corrupt, merit of the judgments and orders passed by him, and complaints generated against him by lawyers and litigants. Regard must also be had to the periodic reports of all the Sessions Judges under whom the particular Judge may have worked. In this respect, weight must also be given to the comments given by the Judges of the Superior Courts (when hearing appeals/revisions) upon the judgments/orders of the Judges of the subordinate Courts under appeals/revision. It is clarified that these comments are given on prescribed sheets in which the Judges of the Superior Courts are required to comment upon the quality of the judgments/orders under appeals/revision by ticking whether the judgments/orders are "Good", "Above average", "Average", "Below Average", "Poor" and also by giving additional remarks. Normally all this should be subject to statement of allegations, charge‑sheets, enquiries (save exceptional circumstances or cases envisaged by law) and a chance of fair proceedings. Though this would be the general standard required for imposition of major/minor penalties prescribed by law, however, the standards for adverse remarks would necessarily fall short. The requirements for the latter would be less stringent though not completely arbitrary. It would not here be out of place to highlight the standards and norms suggested by the United Nations in 1992 in relation to the discipline, suspension and removal of Judges. In this respect the following suggestions are quoted with approval:‑‑ (17) A Charge or complaint made against a Judge in his/her judicial and professional capacity shall be processed expeditiously and fairly under an appropriate procedure. The Judge shall have the right to a fair hearing. The examination of the matter at its initial stage shall be kept confidential, unless otherwise requested by the Judge. (18) Judges shall be subject to suspension or removal only for reasons of incapacity or behaviour that renders them unfit to discharge their duties. (19) all disciplinary, suspension or removal proceedings shall be determined in accordance with established standard of judicial conduct. (20) Decisions in disciplinary, suspension or removal proceedings should be subject to an independent review. The principle may not apply to the decisions of the highest Court and those of the legislature in impeachment or similar proceedings." (See "Compendium of United Nations Standards and Norms in Crime Prevention and Criminal Justice", United Nation Office at Vienna Centre for Social Development and Humanitarian Affairs, United Nations, New York, 1992). Very recently our own Supreme Court in Al‑Jehad Trust v. Federation of Pakistan 1999 SCMR 1379 has approved reference to the articles of Universal Declaration of Human Rights, in case there is no inconsistency between such declaration and the fundamental rights enshrined in the Constitution; the idea being to place a liberal construction' so as to extend the maximum benefit to the people and to have uniformity with the comity of nations. Using Al‑Jehad Trust perhaps the Courts can also refer to other international treaties and standards, such as standards and norms of the United Nations referred above, where there is no conflict between the municipal law viz‑a‑viz the international standards and also where such standards forward the remedy and suppress the mischief. The above standards so cited may, thus, be adhered to in matters of discipline, suspension and removal of Judges.

14. In the present case the record of the appellant is not completely I unblemished. 'In the past there have been other allegations. There has been ample counseling and warning issued on earlier and on different occasions. We would feel that in these circumstances the adverse remarks would not be wholly unjustified. However, this is not the end of the matter. The question that requires determination is whether the delay in communication of the adverse remarks and non‑supply of the full ACRs could vitiate the said adverse remarks warranting them to be expunged. In WAPDA v. S.M., Rizwan Abidi (cited supra) the Hon'ble Supreme Court has observed that non‑supply of the complete ACR and delay in its communication are not fatal. In Syed Mir Muhammad v. N.‑W.F.P. Government PLD 1981 SC 76 the Hon'ble Supreme Court has categorically emphasized upon the principle of natural justice while observing that the enquiry report alongwith the complete material has to be supplied and confronted to the accused officer. It appears that WAPDA v. S.M. Rizwan Abidi appears to have created an exception in the case of ACRs holding that non‑supply of ACRs is not fatal. However, in regards to the delay in the communication thereof the Appellant appears to be correct in citing Ch. Saeed Ahmed v. Federation of Pakistan (cited supra) wherein Saleem Akhtar, J, (as he then was), while heading a Full Bench of the Hon'ble Supreme Court has reviewed extensively the case law on the point and has extracted the following to be the operative principle in this regard:‑‑ "The principle, therefore, which can safely by enunciated, is that adverse remarks could be communicated within the prescribed period and if there is any unreasonable delay the authority should explain it with sufficient reason so that such remarks may be accepted as unbased and effective. In the present case there is hardly any reasonable explanation for such delay." (See page 260 B).

15. In the present case the adverse remarks regarding the work of the appellant for the years 1994 and 1995 have been communicated in October, 1996. There has been delay in such communication and no reasonable explanation has been given by the respondent for such delay. Following the case of Ch. Saeed Ahmed (cited supra) and in invoking the principle of law expounded therein we feel that the delay in communication of the adverse remarks without any reasonable explanation accounting for the delay is fatal. In the circumstances the appeal is allowed and the adverse remarks are expunged.

16. There shall be no orders as to costs H.B.T./M‑4/K Appeal allowed.