1975 P Cr (PLP)

Date of hearing : 26th March 1974. This is a petition under section 561‑A of the Criminal Procedure Code seeking the expungement of some unhappy remarks in the judgment dated 18th November 1971, of Ch. Ghulam Rasul Azhar, Special Judge II, Lahore, in case State v. Faiz Ahmad Faiz under section 468/471/218, P. P. C. read with section 5(2) of the Prevention of Corruption Act 1947, on the ground that be had been condemned unheard as he was neither a party nor a witness in these proceedings.

2. A notice was, therefore, issued to the State and on being taken through the record I find no justification for these remarks.

3. It so happened that a suit entitled as "Raja Muhammad Afzal Khan v. The Province of West Pakistan" was instituted in the Court of the Administrative Civil Judge, Sahiwal, on 30thMarch 1970, who entrusted it disposal to Civil Judge, Okara, in Camp at Sahiwal and was received by the latter's Ahlmad on the same date but this being his last working day the Civil Judge posted it to 22nd April 1970, for scrutiny without dealing with the application for interim injunction attached thereto which was a matter of great concern for the plaintiff:

4. It was alleged that the plaintiff party conspired with said Faiz Ahmad Fain, who was then attached to his Court as Ahmad and obtaining the file from him and erasing the endorsement of entrustment from the plaint (Exh. P. A.) got it re‑instituted in the Court of the Administrative Civil Judge, Sahiwal, on the next day, who retained it on his file. Conse quently the file could not be put upon 22nd April 1970, in the Peshi of the Civil Judge Okara in Camp at Sahiwal and his Reader brought it to the notice of the learned Judge, vide his report (Exh. P. F.), who asked for the explanation of the Ahlmad, which was submitted in writing (Exh. P.F./2) by him on 23rd April 1970, stating therein that he suspected Ch. Muhammad Ashraf, Advocate (the petitioner) to have taken away the file from his table as he kept sitting in his room for quite a long time on 30th March 1970. He re‑affirmed this suspicion in the cross‑examination of Bashir Ahmad (P. W. 9) as also in his statement under section 342, Cr. P. C., but the learned Judge did not bother to send for Ch. Muhammad Ashraf, Advocate petitioner, for examining him about it so that he could explain his position in the matter nor had he summoned him as an accused to face his trial alongwith said Ahlmad, so that he could edduce evidence to rebut this allegation against him and without complying with these legal requirement he had dubbed him in his judgment in the following terms:‑ "Finally, the conduct of Ch. Muhammad Ashraf, Advocate, as gathered from evidence on record is obviously not above board in this case and it appears strange that despite serious allegations of theft, forgery and fraudulent representation and re‑institution of the plaint levelled against him as an accomplice right from the start, no action appears to have been taken against him during the course of investigation of this case by the local investigating/prosecution Agency, for his being obviously a party in such a hoax, forgery and fraud, thereby giving him a free and unfettered hand for any such mis‑demeaneur and professional misconduct as an Advocate in future. A copy of order shall, therefore, go to the Superintendent of Police, Sahiwal, for taking necessary action against the defaulting police officials and similarly another copy of this order shall go to the Registrar, High Court, Lahore, for placing the matter regarding Ch. Muhammad Ashraf, Advocate, before their Lordships of the High Court for any action which their Lordships may deem fit in the matter." He had thereby condemned him at his back in a very damaging language attributing to him most ignominious and unprofessional conduct which on the part of the learned Judge was highly improper and uncalled for as there was no material on record to support these remarks.

5. It has been consistently emphasised by the Superior Courts that n Judge should fall in the temptation of making any disparaging remark against a stranger to the proceedings before him and the law reports are full of precedents wherein such offending remarks have been invariably expunged and Malik Feroze Khan Noon's case (P L D 1958 S C (Pak.) 333) is the most illuminating " instance of such authorities. These offending remarks having been incor porated in a separate paragraph with no direct bearing on the conviction or the sentence of the accused concerned can be safely excluded from the judgment without affecting the merits of the case.

6. The cause of delay in moving this petition has been explained in its opening paragraph which is quite satisfactory so the petitioner cannot be hold guilty of any laches.

7. I have, therefore, no option, but to accept this petition and direct the expungement of the above quoted paragraph from the impugned judgment. Order accordingly.