P L D 1959 Supreme Court (Pak (PLP)

MUHAMMAD MUNIR, C. J.‑--These two Criminal Appeals, Nos. 10 and 11 of 1959, are directed against a judgment of Lari J. of the Karachi Bench of the High Court of West Pakistan, delivered on appeal from an order of Mr. Ghaznavi, Special Judge, Karachi. One Mujahiduddin Faridi, who was Accountant and Cashier in the Co‑operative and Marketing department, Ministry of Food and Agriculture, Government of Pakistan at Karachi, was accused before the Special Judge of having, between 23rd April 1952 and 22nd July 1952, committed criminal breach of trust in respect of an aggregate sum of Rs. 11,071‑8‑3 and of having forged certain signatures and entries in relevant official records in order to suppress the various defalcations. He was found guilty and was sentenced under Ss. 409 and 467 of the Pakistan Penal Code to 3 years' concurrent imprisonment and a fine of Rs. 20,

000. On appeal to the High Court, Lari J. ordered a retrial on the grounds that the two offences could not have been tried together and that the Special Judge had a bias against the refugees which disabled him from performing judicial functions where refugees were con cerned. The finding as to bias was based on the following observations of the Special Judge in the last paragraph of his judgment:‑ "The accused was an Accountant in this office from March, 49 and it was his duty to maintain the accounts. From the year 1949 up to the period, when he handed over the charge, he had not kept the accounts properly, and had been system atically misappropriating sums of money thinking, that in Pakistan, nobody would take notice of his misdeeds, because he is a refugee. In my opinion, this was a fully planned scheme of the accused to rob the Government and I do not find any extenuating circumstances in his favour". Appeal No. 10 of 1959 is by the State against Mujahiduddin Faridi in which the question raised is that the order of retrial was bad because both the grounds on which it was based were unten able, while in Criminal Appeal No. 11 Mr. Ghaznavi prays for expunction of those portions of the judgment in which the learned Judge has held him to be biased against the refugees and to be unfit for the performance of judicial functions. Appeal No. 10 has become infructuous because Mujahiduddin Faridi respondent has been retried in compliance with the order of the High Court and convicted. The State obtained no order for stay of the retrial and cannot now ask this Court to set aside the High Court order which led to the retrial. We, therefore, dismiss Appeal No. 10 of 1959. As regards Criminal Appeal No. 11 of 1959 we consider that that appeal should succeed and the passages in the judgment of the High Court attributing bias and incapacity to the appellant expunged. The remarks to which objection has been taken by the appellant are contained in the following paragraph of the judgment:‑ "The next contention of the learned counsel for the appellant is that the learned Judge had a bias against the refugees as a class and this bias has vitiated the judgment. My attention has been drawn to the following which appears in the judgment:‑ "From the year 1949 up to the period, when he handed over the charge, he had not kept the accounts properly, and had been systematically misappropriating sums of money thinking, that in Pakistan nobody would take notice of his misdeeds because he is a refugee. This sentence definitely insinuates two things, firstly, that refugees as a class indulge in. misappropriations and secondly the Government as a matter of policy overlooks these misdeeds of refugees. I asked the learned counsel for the State to point out any material on which this observation was based. He candidly conceded that ‑there is nothing on the record to lend support to this assertion. The A. A. G. appeared at my in stance and stated that there is nothing on the record even to show that the appellant is a refugee. I have very anxiously considered as to what could be the reason for this defamatory observation by a judicial officer occupying the high position of a Special Judge charged with the duty of trying public servants any of whom must belong to the refugee class. I have failed to find any reason and this observation can only be ascribed, as contended, to a bias ingrained in the learned Judge regarding refugees. The existence of such a bias disables a Judge not only from trying cases in which the accused are refugees but from performing any judicial function whatsoever. I find that prima facie there is' a good deal of evidence against the appellant but justice should not only be done but should appear to be done. If a judicial officer indicates that he has bias and prejudice against a class no person belonging to that class can be persuaded to feel that he got justice. In this view of the matter also the case has to be retried". It is alleged by the appellant who is present, and this allega tion also finds place in the grounds for special leave to appeal, that learned counsel for the accused had argued before the appellant that a lenient view of the offences should be taken because the accused was a refugee, and that the sentence in the appellant's judgment on which the remarks of the High Court are founded had reference to this contention. As Mujahiduddin Faridi has not appeared, 'the appellant's contention that counsel for the accused had asked for a lenient sentence on the ground of the accused being a refugee has to be accepted. Moreover, the words in the sentence in question "thinking that in Pakistan nobody would take notice of his misdeeds because he is a refugee" fall far short of bearing the insinuation that refugees as a class indulged in misappropriation or that the Government as a matter of policy overlooked their misdeeds. The reference in the sentence is to what the accused thought and not to what the refugees or the Government did. To base on this observation the finding that the appellant was biased against the refugees and that for that reason he was disqualified from performing judicial functions and then to direct this finding to be brought to the notice of the Judges of the Karachi Bench and of the Ministry of Interior was something altogether unjustified. It will be noticed that the learned Judge in the High Court did not hold that the findings as to facts recorded by the appellant were wrong or perverse On the contrary, he held that prima facie there was good deal of evidence against the accused. We think that the remarks in question, if allowed to stand, would do a good deal of harm to the appellant who is a member of the Sind P. C. S. and is now acting as a District and Sessions Judge, and that being unjustified, they should be expunged. We therefore order that the following portion from the judgment of the High Court be expunged from the record:‑ "I have very anxiously considered as to what could be the reason for this defamatory observation by a judicial officer occupying the high position of a Special Judge charged with the duty of trying public servants many of whom must belong to the refugee class. I have failed to find any reason that this observation can only be ascribed, as contended, to a bias ingrained in the learned Judge regarding refugees. The existence of such a bias disables a Judge not only from trying case in which the accused are refugees but from performing any judicial function whatsoever". We make no order as to costs, leaving it to the Law Ministry to consider whether, under the rules, the appellant is entitled to be reimbursed by Government for the costs incurred in the prosecu tion of this appeal. A. H. Order accordingly.