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Criminal Appeal No. 38 of 1958, decided at Murree on 5th July 1958.

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 17th May 1958, in Criminal Original No. 58 of 1957).

(a) Defamation‑

Remarks in judgment‑Whether protected.

(b) Expungement of remarks from judgment

‑Petition for, by affected third person‑Complainant in case in which judgment was delivered need not be made respondent to petition.

(c) Constitution of Pakistan, Arts. 160, 163

‑Supreme Court's jurisdiction to set judicial error right in interest of public justice Unquestionable‑Special leave to appeal from "any" judgment Not necessarily a "final" judgment‑Interference with interlocutory orders‑‑Person' neither a party nor a witness in case‑Whether may petition for special leave‑"Judgment"‑Signification‑Jurisdiction to expunge remarks from judgment.

Per Muhammad Munir, C. J.‑Provided a case for interference has been made out our (the Supreme Court's) jurisdiction to set a judicial error right in the interests of public justice is unquestion able.

The word final' before the Word order' that occurs in Articles 157, 158 and 159 is omitted in Article 160 in order to enable the Court to interfere even with interlocutory orders. The Article is an overriding provision because it commences with the obstante clause Notwithstanding anything in this Part, and it leaves entirely to the discretion of the Supreme Court to grant special leave to appeal provided the appeal is from a judgment, decree, order or sentence of any Court or tribunal in Pakistan. The question in what cases this Court will grant special leave is essentially a different question from the one whether it has the jurisdiction to grant special leave if it be of the opinion that such leave should be given. The Article imposes no restrictions whatso ever in regard to the persons who may apply for leave to appeal or as to the grounds on which leave to appeal may be prayed for. When leave to appeal has been granted and the matter is property before the Court, the Court, under clause (3) of Article 163, has the power to issue such directions, orders, decrees or writs as may be necessary for doing complete justice in any case or matter pend ing before it. The plain meanings of this constitutional provision appear to be that if the Court is of the view that there exist special grounds for giving leave to appeal from any judgment, decree, order or sentence, it has full jurisdiction to do so. The Article does not say that only a party to the proceedings may ask for special leave to appeal though where the application for leave is by a person who is not a party, the Court, while considering the question of granting special leave, will have to examine the nature of his interest in the proceedings and whether he is adversely affected by the judgment, decree, order or sentence. In the same manner, once a case for interference of the Court has been estab lished, it will have to consider what relief is to be given to the appellant in order to meet the ends of justice. Before granting special leave it is not at all necessary to require the applicant to ask for the reversal of the whole judgment, decree, order or sentence.

The word judgment' is not defined by the Constitution or by the Code of Criminal Procedure and . . . . . as used in Article 160 it is to be understood in its ordinary signification, namely, where a written judgment is required by law, the document which for the reasons stated therein concludes the trial and disposes of the proceedings.

If, therefore, a Judge in making in his judgment the obser vations to which objection was taken by the appellant transgressed the limits within which he was to function while deciding the case which was before him, or departed from the legal principle by which ‑his power to make comments on the conduct of a person, who was not before him and to whom no opportunity was given to explain the circumstances appearing in the evidence against him, was barred there can be no doubt that a case for interference will have been made out. For otherwise the injury will remain un-repaired and the appellant who was never given an opportunity to be heard will have no means of having the stigma on his cha racter and reputation removed.

The Supreme Court, entertaining an appeal under Article 160, ordered deletion of certain remarks, in a High Court judgment, in relation to the appellant who was neither a party nor a witness in the case before the High Court.

Muhammad Ashiq v. Allah Bakhsh P L D 1957 S C (Pak.) 293 and Bertrand L R (1887) 1 P C 520 ref.

Per Shahabuddin, J.‑The language of Article 160 makes it clear that this Court has been given powers of the widest amplitude in the matter of granting special leave to appeal. There are no restrictions as regards the persons to whom gave can be granted.

The words "appeal from the judgment" include appeal from any portion of the judgment and there is no reason to limit the plain meaning of the Article. The order of expunction can be passed under Article 163 (3) of the Constitution.

Per Rahman; J.‑Article 160 of the Constitution in terms confers powers of the widest amplitude on this Court. The generality of the words used therein appears to be inconsistent with any limitations as to the person who may ask for special leave under that Article, the stage of the proceedings giving rise to grievance or the scope of the relief sought. The person seeking redress need not be a party to the proceedings that culminated in the impugned "judgment, decree, order or sentence" provided, of course, he satisfies this Court either that he has a genuine cause to feel aggrieved by what has been said or done by the relevant Court or Tribunal or that he has an interest in moving the Court and the case falls within the principle enunciated by this Court in Muhammad Ashiq v. Allah Bakhsh P L D 1957 S C (Pak.) 293.

The omission of the word "final" from before the word "order" in Article 160, as contrasted with its presence in Articles 157, 158 and 159 of the Constitution, suggests further that the remedy provided by Article 160 may be available even where the order in question is not invested with finality. Again, the question to what part of the judgment or order the relief sought is confined, is essentially not one of jurisdiction.

(d) Criminal Procedure Code (V of 1898)

, Ss. 411‑A & 439 Single Judge holding trial under extraordinary original criminal jurisdiction of High Court‑Not an inferior Court to the Division Court empowered to hear appeal under S. 411‑A‑Restricted scope of appeal‑Division Court not a Court of revision over Single Judge‑Division Court not empowered to "remit" case for re‑trial by Single Judge‑Division Court not competent to grant relief re-expunction of passages from Single Judge's judgment‑Jurisdiction of Supreme Court to grant such relief High Court's jurisdiction to order expunction from judgments of Subordinate Courts under S. 561‑A, Criminal Procedure Code ‑(V of 1898)‑Divergence of opinion‑No inherent jurisdiction in High Court to amend its own judgment by deleting passages‑Criminal Procedure Code (V of 1898), S. 369‑Supreme Court and High Court's concurrent juris diction‑Supreme Court may entertain appeal.

Held per Muhammad Muritr, C. J‑The insertion of sec tion 411‑A in the Criminal Procedure Code has merely enlarged the appellate powers of the High Court and has not created a new Court to which the Judge exercising original criminal jurisdiction is inferior or subordinate. Before the enactment of section 411‑A there was no appellate jurisdiction in the High Court over any Judge or Judges of the High Court exercising original criminal jurisdiction and it is difficult to see how a mere provision empower ing a bench of the High Court in a restricted class of cases to rectify errors of members of the same Court can have the effect of making the latter inferior to the former, particularly when the two positions are not constant and can be interchanged from time. to time by an order of the Chief Justice.

The mere conferment of restricted additional appellate jurisdiction on a bench of the High Court does not have the effect of converting another bench which exercises the original powers, of the Court, a subordinate or inferior Court. Section 411‑A confers limited appellate powers on the High Court and does not give to that Court full powers of appeal from the judgment of a Judge exercising original criminal jurisdiction. Though an appeal under that section lies as of right on a question of law, no appeal on a question of fact lies unless the case is certified by the original Judge to be a fit one for appeal, or unless the leave of the appellate bench is obtained, Further, ail appeal under that section can be brought only by a person who has been convicted or by the Public Prosecutor under the instructions of the Provincial Government. The additional jurisdiction of the High Court having been defined with such precision it is impossible to argue that any more rowers were impliedly intended to be conferred so as to make that Court a Court of general revisional jurisdiction qua other members of the same Court. The Court that functions in exercise of the original criminal jurisdiction or in exercise of the appellate jurisdiction under section 411‑A is the same Court viz., the High Court, and not two different Courts, the respective powers possessed by the Judges while functioning in two different capacities being the powers of the same Court and the distribution of those powers being no more than an internal arrangement among the Judges of the same Court. The records of both the benches are records of the same Court and not of two different Courts. There are of course two judgments in such a case, one by the original Judge or Judges and the other by the appellate Judges, but they are both judgments of the same Court though by law the judgment of lie appellate bench in case of reversal or modification overrides the judgments of the original Judge.

If the original bench is not subordinate, the case cannot be remitted to it for retrial. The remittal must be to some other competent Court because after the trial of a case in exercise of the extraordinary criminal jurisdiction of the High Court the original bench, being functus officio, ceases to exist, and can be reformed only by an order of the Chief Justice if the case after having been remitted to another subordinate Court of competent jurisdiction is again intended to be tried on the original, side of the High Court.

The Judge trying a criminal case in exercise of the extraordi nary criminal jurisdiction of the High Court cannot be held to be an inferior criminal Court within the meaning of section 435 of the Code of Criminal Procedure. Nor can it be said that the record of the trial Judge in such a case otherwise comes to t knowledge of the High Court within the meaning of section 439 of the Code. The record mentioned in that section is the record of an inferior Court and not of the High Court itself which is always supposed to be within the knowledge of that Court, and to Which the words in section 439 "which otherwise comes to its knowledge" are clearly inapplicable.

The bench hearing the appeal of the convicted persons under section 411‑A has no revisional jurisdiction over the Judge who tried this case and consequently no power to expunge any remarks or passages from his judgment . . . . And it is not and cannot be contended that an appellate Court, merely as such Court, has the jurisdiction to expunge passages from a judgement under appeal. Of course it has the power to express its own view of the matter or matters to which the objectionable pas sages relate but it does not possess the power of expunction simpliciter, which in its nature and incidents, is essentially different. Any contrary view would invest all appellate Courts, including subordinate Courts, with a power which has never existed, been exercised or claimed. And in the present case, the appellant has, in view of the terms of section 41 1‑A, no locus standi to move the appellate Court under that section and the Court cannot act suo motu, its powers to entertain an appeal and to pass orders thereon having been exhaustively defined by section 411‑A read with section 423, Criminal Procedure Code. The power to grant relief of the present nature is neither inclu ded in the appellate Court's power to "make any amendment" which obviously refers to the power to make an amendment in the effective order of the original Court or in the order that the appellate Court may pass under clauses (a), (b) and (c) of subsection (1) of section 423, nor in the power to make any consequential or incidental order which refers to the power to make an order subsidiary to the effective order that it may decide to make under those clauses.

Section 411-A gives no right to the appellant to ask for expunction of the remarks, he being not one of the persons who can move the appellate Court under that section. The consequen tial or incidental order can only follow from the operative order in appeal which can either be one of affirming the conviction or of setting aside the conviction or of reducing or altering the sentence. In the same manner the power to make any amendment under clause (d) of subsection (1) of section 423 is the power to make an amendment in the operative order of the original judge or in the appellate order specified in clauses (a), (b) and (c) of subsection (1) and not the power to make an order that the judgment itself as a document be amended in a particular way, this being not one of the matters before the bench under section 411‑A.

The jurisdiction to expunge offensive or defamatory passages from a judgment is a special jurisdiction and not the general jurisdiction of an appellate or revisional Court and the remedy that an aggrieved person seeks such cases is a special remedy, governed by its own corpus juris. On a consideration of the question in all its aspects, therefore, the relief prayed for in the present appeal is not within the competency of the bench hearing the appeal to grant.

The jurisdiction of the Supreme Court to interfere, in case the Court considers such interference to be necessary to prevent an abuse of judicial process, being unquestionable, an appeal seeking relief as to expungement of passages from judgment of a Single Judge sitting in the exercise of the extraordinary crimi nal original jurisdiction. of the High Court, lay to the Supreme Court and not to the Division Court constituted under section 411‑A, Cr. P. C.

Lala Jairam Das v. King Emperor 72 1 A 120; Kumar Singh Chhahajor v. King Emperor 73 1 A 199; Krishna Ji Vithal Kangut kar v. Emperor A I R 1949 Born. 29; Parbati Devi v. State A I R 1952 Cal. 835; Re: Nookiah A I R 1954 Mad. 918 and Goonesinha v..Kretser A I R 1945 P C 83 ref.

There is divergence of opinion even on the question whether under section 561‑A of the Code of Criminal Procedure the High court has an inherent power to expunge undesirable remarks from the judgment of a lower Court.

Dunn v. Emperor 44 I L R All. 401; Panchanan Banerji v. Upendra Nath I L R 49 All. 254; Rogers v. Shriniwas Gopal I L R 1940 Born. 415 and Bhutnath Khawas v. Dasrathidas A I R 1941 Pat. 544 ref.

By reason of section 369, Code of Criminal Procedure, the n, High Court has no inherent jurisdiction to amend its judgment by deleting passages from it.

In re: Malik Umar Hayat Khan 6 I C 611; Crown v. Makhan Lal 48 Cr. L J 660; Lala Jairarri Das v. King Emperor 72 I A 120 and Kumar Singh Chhahajar v. King Emperor 73 1 A 199 ref.

It was observed, however, that if it was open to the appellant to seek redress from the appellate bench, the Supreme Court would not like to short‑circuit the case and would prefer to wait until the appeal had been disposed of. If the High Court also had jurisdiction to grant the relief claimed by the appellant the Supreme Court's jurisdiction in that case would be concur rent with that of the High Court.

And the mere fact that the High Court had concurrent jurisdiction would be no tar to Supreme Court's entertaining the appeal under Article 160 of the Constitution.

Per Shahabuddin, J.‑Though this Court can grant leave to appeal even in cases where its jurisdiction is concurrent with that of any other Court I would not ordinarily grant leave in such cases if the person asking for leave has not approached the other Court.

The High Court has no power to expunge any portion of the judgment in. question, which though subject to an appeal which has to be heard by two other Judges of the same Court is nevertheless a judgment of the High Court. That power to expunge remarks in a judgment is not included in the powers of an appellate Court is clear from the provisions of section 423, Criminal Procedure Code. If the subordinate appellate Courts, while exercising their powers under the said section, consider expunction of any portion of the judgment under appeal called for, they refer the matter to the High Court. The Bench that will hear the appeal of the accused convicted in the present case cannot therefore as an appellate authority order expunction of any portion of the judgment in question. Section 411‑A, Criminal Procedure Code, does not give that authority any powers other than those of an appellate Court. The learned Judge who made the observations sought to be expunged is as much a Judge of the Court of Record as the Judges who will hear the appeal. There is, therefore, no ques tion of any one of them being inferior to the others. The judgment in question is as much a judgment of the High Court as would be the judgment of the Bench that hears the appeal. If, therefore, the appellate Bench expunges any portion of the judgment under appeal it would be contravening section 369, Criminal Procedure Code. It is; therefore, clear that this Court alone can grant the relief prayed for by the appellant.

Per Cornelius, J.‑If I could have convinced myself that the High Court sitting in appeal could have dealt with the judgment of the learned Judge in the manner desired by the appellant, I would have been most reluctant to use for the purpose the jurisdiction which is vested in this Court by Article 160, viz. to grant leave to appeal against the judgment to the appellant, despite the fact that he was not a party to the case, and to exercise this Court's power to issue such directions as may be necessary for doing complete justice in the matter, as provided by Article 163 (3). But I am clearly of the opinion basing upon the examination of the law and the authorities contained in the judgment of my Lord the Chief Justice, that there is no juris diction in the High Court, sitting as a Court of appeal under section 411‑A, Criminal Procedure Code to make any orders other than those specified in section 423 of that Code. I cannot interpret section 561‑A as conferring the necessary power, and respectfully concur in the opinion expressed by the Privy Council that the powers conferred by this section do not override the prohibition contained in section 369 of the Code in relation to the High Court. While on the subject of section 561‑A, how ever, 1 would like to add a remark concerning the availability of this section to the High Courts for the purpose of expunging matter from the records of inferior Courts. The decisions given upon this point by the various Courts in India prior to the Partition exhibit some difference of opinion. A few of these Courts have held that such power cannot be derived even from sec tion 561‑A, despite the fact that in the Statement of Objects and Reasons with which the Bill was published which eventually led to the enactment of section 561‑A, it was expressly stated that the‑ intention was to make it clear that High Courts had this power as one of their inherent powers. It does not seem, however, that the High Courts in Pakistan have at any time, since the enactment of section X561‑A, deviated from the view that it enables them in proper cases to amend the records of inferior Courts by directing the exclusion of matters therefrom. Since the question of the existence‑pf this power does not arise for decision in the present case, I consider that it would be sufficient for me here to say that I would be prepared to uphold the view which the High Courts in Pakistan have been taking, if for no other reason, than on the basis of an interpretation and course of practice which has held the field for a long period of years. As regards the power of the High Court in respect of its own records, an argument might perhaps be put forward that as a Court of Record, the High Court has power to amend its own records in proper cases, and that it might exercise this power in the present case. To this, I consider that it is a sufficient answer to say that the power of the High Court in respect of a judgment such as that under appeal in the present case, has now by the enactment of section 411‑A of the Criminal Procedure Code been reduced and confined to those powers which an appellate Court may exercise under section 423 of the Code. It is quite clear that the powers of the appellate Courts under section 423 aforesaid do not extend to the taking of action such as that sought in the present appeal.

Per Rahman, J.‑The question that calls for consideration is whether the High Court is possessed of power, on motion or otherwise, to expunge the offensive remarks in question from the judgment of the learned Judge who tried the defamation case giving rise to this appeal, in exercise of the extraordinary original criminal jurisdiction of that Court. If the answer to this question be in the affirmative, it may be more appropriate to leave the matter to be dealt with by the High Court in the first instance. The point has exercised my mind considerably, but I see no escape from the conclusion reached by my Lord the Chief Justice in this respect. High Courts in the Indo‑Pak sub‑continent have at times expunged passages from judgments of subordinate Courts but the controversy about the source of the relevant jurisdiction appears to have been left in a more or less nebulous state. It was observed by the Federal Court in Fazal Elahi v. Crown P L D 1953 F C 35 in passing, that the Indian High Courts had uniformly regarded the power to expunge as being a necessary concomitant of their appellate jurisdiction. It is now conceded by learned counsel appearing before us in the present case that this view is not sound as it would obviously involve similar power being vested in appel late Courts inferior to the High Court a power which has never so far been claimed or recognised. There are also difficulties in accepting the view that the power to expunge is included in the revisional jurisdiction of superior Courts of record, as the powers exercisable under the Code of Criminal Procedure are assimilated to those of the appellate Court, though perhaps the field of revision in respect of subject‑matter may be somewhat wider than in appel late jurisdiction. The distinction between a power to reverse, alter or differ from a finding or sentence and the power to expunge offending passages from a judgment or order must not be lost sight of. Because of these difficulties perhaps, the view has gene rally prevailed that the High Court's power in this behalf is part and parcel of the inherent powers of the Court recognised by S. 561‑A of the .Code of Criminal Procedure, inserted therein in 1923. It may be that the source of that power is the right of superintendence possessed by the High Court vis‑a‑vis subordi nate Courts.

Whatever may be the correct position, in this respect, the question that confronts us for, decision is not whether the High Court can expunge parts of a judgment delivered by a subordinate Court but whether an appellate bench of the High Ciurt by virtue of the powers conferred by S. 411‑A of the Code, can exercise similar powers to excise offending portions of a judgment of a learned Judge or Judges of a High Court sitting on the original criminal side of that Court. The limited right of appeal conferred by S. 411‑A of the Code, per se cannot obviously invest the appel late bench with this drastic power. The analogy of subordination of inferior Courts for purposes of revisional jurisdiction would also be inapt in the case of a single Judge of the High Court vis‑a‑vis the appellate bench of that very Court. The original criminal jurisdiction and the appellate jurisdiction are but ele ments of the comprehensive jurisdiction of one Court viz. the High Court and clearly therefore the notion of superintendence by a superior Court over an inferior Court would not be apposite in such a situation. Is the High Court then, as a superior Court of record, in a position to alter or amend its own records by way of expunction

The judgment of the learned Single Judge in the instant case is as much a judgment of the High Court as would be the judgment of the appellate bench of that Court and both judgments would be subject to the limitations imposed by section 369 of the Code in respect of alteration or review though the appellate judgment may possibly render the judgment appealed against ineffective. Only a clerical error can be corrected under that section and no substantive change in any part of the judgment would be permissible after it had been signed.

Ball's case 1911 A C 47; Laid Jairam Das v. King Emperor 72 1 A 120 and Kumar Singh Chhahajor v. King Emperor 73 1 A 199 rel.,

In re: Malik Umar Hayat Khan 6 I C 611 and Crown v. Makhan Lai 48 Cr. L J 660 dissented from.

(e) Disparaging remarks in judgment

‑Against person neither party nor witness in case‑Condemned.

In all cases which have come before the Courts, where an aggrieved person asks for expunction of objectionable remarks made against him in a judgment, one point has consistently been emphasized, namely, that a Judge ought not to make any disparag ing remarks against a person who is neither a party nor a witness in the case.

The rule on which remarks against a person who has not been given an opportunity to refute them have been expunged from judgments is based on the principle that when a person is examined as a witness, he has the right to give his own version in defence and the party calling him has an occasion to rehabilitate his credit by putting him questions in re‑examination. It is for this reason that the practice of making defamatory remarks against a person who is neither a party nor a witness in the case has been repeatedly condemned by superior Courts.

Hameed‑ud‑Din P L D 1950 Lah. 34 at p. 41 and Inayat Ullah Butt v. Cantonment Board, Rawalpindi P L D 1957 Lah. 583 ref.

(f) Judge

‑Expressing strong views in strong language in regard to persons neither parties nor witnesses in case‑Disapproved.

(g) Judge

‑Not to play role of moral or political reformer Judge laying down moral or political standards for choice of a Prime Minister travels beyond his functions.

A Judge exceeds his functions if he judicially determines the qualifications of a Prime Minister of his country. This is pure politics, and when politics enter the portal of the Palace of Justice, democracy, its cherished initiate, walks out by the back‑door. A Judge's duty in a given case is to adjudicate on the right or liability, the question of the existence or non‑existence of which is raised before him, and this function he must discharge according to law and not according to what in his opinion the interests of the country or the State demand. The Constitution entrusts the interests of the country, in the appointment of a Prime Minister to the members of Parliament who are chosen by the people of the land, and if the country is ruined by a wrong choice of the Prime Minister, the responsibility for the disaster is that of the people and their representatives and not of the Judge. The Judge's duty is to administer the law and not to lay down moral or political standards for the choice of a Prime Minister. The question whether a fool or a sage, a saint or a Machiavelli should be chosen as the Prime Minister of the country is the concern of Parliament and the President and in that matter neither of them needs any judicially carved pronouncement or advice.

(h) Evidence Act (1 of 1872)

, S. 124‑Communications made in official confidence‑‑Privileged in public interest‑Duty of officials to claim privilege‑Court's duty to warn against disclosure‑Bodies of officials to act as one unit.

Per Cornelius, J.‑It is a parmount necessity that officials of a Government should always act, within the scope of their duties, for the public interest, and it is very greatly in the public interest that bodies of officials who are concerned in any particular aspect of governmental activity, should act as a single unit, bound to each other by a certain loyalty, always of course within the scope of public interest. Where such a feeling, which may rightly be described as esprit de corps does not exist, it is clear that the processes of govern ment must be gravely prejudiced. The law is conscious of this requirement and enforces it by means of several statutes, but at this place I ‑shall make reference only to that statute which is relevant to the evidence given . . . . . . namely, the Evidence Act, 1872, section 124 of which reads as under:‑

"No public officer shall be compelled to disclose communi cations made to him in official confidence, when he considers that the public interest would suffer by the disclosure."

. . . . . . . there is more in the section than mere recognition of the judgment of the public servant standing in the witness box. It is the duty of the Court before whom he is deposing to consider whether the disclosure might not have been made "in official confi dence". This is not necessary only in order to overrule an objection raised by the witness making the disclosure. The purposes of the section are clearly wider than the mere overcoming of such objec tions. The duty of the Court is attracted likewise when a disclosure is likely to be made which, in the opinion of the Court, might be injurious to the public interest, and in such a case, the Court must enquire and satisfy itself as to whether or not the communication in question was made to the witness in official confidence, and thereafter to inform the witness, who may not be himself aware of the provisions of law, that it is for him to decide whether he will disclose the matter, and that he cannot be com pelled to disclose it if in his opinion, such a disclosure would injure the public interest.

(i) Witness‑Volunteer‑Examination‑Fraught with danger to administration of justice.

Per Cornelius, J.‑A volunteer witness is responsible to neither party. Unless one or the other party questions him in advance it is not known what information he may possess, and which side is likely to be benefited by it. The introduction of such a witness, particularly one whose evidence has proved to be of the startling nature given by . . . . . into the case, without previous investigation of his knowledge concerning relevant facts is fraught with grave dangers, and not least to the dispensation of justice. In examining such a witness, the Court converts itself from being an instrument of justice, into an investi gating agency.

(j) Expungement

‑Conditions for‑Offending remarks to form an independent portion not affecting findings in operative part of judgment.

Manzoor Qadir, Senior Advocate, Supreme Court (M. Ismail Bhatti, S. K. Ahmad and Sardar Muhammad Iqbal, Advocates, Supreme Court, with him), instructed by M. A. Rahman, Attorney for Appellant.

Mushtaq Ahmad, Advocate‑General, West Pakistan (Iftikhar ul‑Haq Khan, Advocate, Supreme Court, with him); instructed by Ijaz Ali, Attorney for Respondent.

Faiyaz Ali, Attorney‑General for Pakistan under Order XLV, r. 1, S. C. R. 1956.

Bashir Ahmad, Senior Advocate, Supreme Court Amicus curiae.

Dates of hearing: June 23, 24 and 25, 1958, at Murree.

JUDGMENT

MUHAMMAD MUNIR, C. J.

--‑This is an appeal, with special leave of this Court, by Malik Feroz Khan Noon, Prime Minister of Pakistan, under Art. 160 of the Constitution from the judgment of Shabir Ahmad, J., of the High Court of West Pakistan at Lahore, delivered in a criminal case instituted on the complaint of Mr. Mushtaq Ahmad Gurmani against Z. A. Suleri, Editor‑in‑Chief, and Umar Qureshi, Resident Editor, of the Times of Karachi', under Ss. 500 and 501 of the Pakistan Penal Code. By the judgment under appeal the learned Judge found both the accused guilty of having defamed the complainant and sentenced them to imprison ment and fine.

In the issue of the Times of Karachi' dated the 3rd September, 1957, and in the evening edition of that paper for the same date, was published a facsimile of a letter purporting to have been written by Mr. Gurmani on the 23rd August, 1947, as Prime Minister of Bahawalpur, to Sardar Patel, Minister of States in the Indian Government. The letter stated that Mr. Gurmani had obtained the consent of H. H. the Amir of Bahawalpur for the accession of his State to India and that all difficulties in the matter had been removed. The writer hoped that his services in this respect would be appreciated and receive due consideration. The publication was accompanied by the editorial comment that convincing documentary proof had become available to show that Mr. Gurmani had completed a deal with Sardar Patel for the accession of Bahawalpur to India, that the State had been offered to India barely nine days after the establishment of Pakistan and that the reward for that service, though not mentioned in the letter, must have been something enormous.

On the 4th September, 1957, Mr. Gurmani served a notice on Suleri, Umar Qureshi and the printer and publisher of the paper Khurshid Alam, to the effect that the letter was a forgery and its contents false and malicious and that if an apology was not published in the paper within 24 hours, Mr. Gurmani would take legal action against the persons who had defamed him. This notice was published by the Times of Karachi in its issue of 7th September, 1957, so that the public might know the version of Mr. Gurmani. In the comments on this notice the allegation of malice was denied and it was alleged that the publication of the letter was an unpleasant public duty performed by the editors in the interests of Pakistan and its people. It was further stated that if the allegations against Mr. Gurmani were true, then the Times of Karachi had performed a great national service in drawing public attention to his conduct. As regards the letter itself, it was alleged that it had been given to the paper by a high source of unimpeachable authenticity and that, therefore, it was impossible to accept the allegation that the facsimile was of a forged letter. It was, however, pointed out that if the letter was ultimately found to be a forged one, the editors and the printer and publisher would have no hesitation in tendering their profound apology to Mr. Gurmani.

On the 7th September, 1957, Mr. Gurmani instituted in the Court of the Additional District Magistrate, Lahore, a complaint under Ss. 500 and 501 of the Pakistan Penal Code against Suleri, Umar Qureshi and Khurshid Alam. By an order of the Chief Justice of the High;Court of West Pakistan the complaint was transferred to the High Court to be tried there by Shabir Ahmad, J., in exercise of the extraordinary original criminal jurisdiction of that Court.

Mr. Gurmani, the complainant, was the first witness to be examined in the case, but before his evidence had closed the learned Judge commenced an enquiry regarding the custody of the letter, the facsimile of which had been published. The result of the enquiry was that a photostat copy of the letter was produced by Mr. Sultan Ahmad, the Chief Correspondent of the Times of Karachi . In the course of the enquiry it was discovered that Malik Firoz Khan Noon, who was then the Foreign Minister, had sent for Sardar Amanullah, an officer of the Public Information Department of the Government of Pakistan; that Sardar Amanullah had come to the residence of Mr. Noon where he found Hakim Saif Ali present; and that Mr. Noon had introduced Hakim Saif Ali to Sardar Amanullah telling him that Saif Ali had brought a photostat copy of a letter which, he asserted, had been sent by Mr. Gurmani to Sardar Patel regarding the accession of Bahawalpur. Mr. Noon had further, said to Saidar Amanullah that Hakim Saif Ali appeared to be certain that the document was genuine, that he (Saif Ali) wished to have it published and that Sardar Amanullah who was Information Officer of the Foreign Ministry should find out whether the Press was at all interested in publishing the letter. Hakim Saif Ali himself volunteered his evidence in the early stages of the case and not only produced the alleged original of the photostat copy but also another letter, dated the 4th August, 1947, alleged to have been addressed by Mr. Gurmani to Sardar Patel in which he had stated that with his best efforts H. H. the Amir of Bahawalpur had agreed to the accession of Bahawalpur to India provided the States of Bikaner, Jaisalmir and Bahawalpur were put under, him. The witness deposed that both these letters had been given by Sardar Patel to Mian Nizamuddin, a Gujjar of Kashmir, who had handed them over to him.

The judgment recites that "the mention, in connection with the document the complainant asserted to be a forgery, of the name of no less a person than Malik Firoz Khan Noon, who was at the time when Sardar Amanullah appeared as a witness, in addition to being the Foreign Minister of Pakistan the Prime Minister of this country also, not unnaturally evoked public interest and the audience thenceforth shot up manifold .

Thereafter the trial took a lengthy course during which many important persons, including Khawaja Nazimuddin, once the Governor‑General and later the Prime Minister of Pakistan, Mr. Shoaib Qureshi, Pakistan's Ambassador to Iraq Sheikh Din Muhammad, a retired Judge of the Lahore High Court, Col A. S. B. Shah, Pakistan's Ambassador to Egypt, and Sheikh Sadiq Hassan, a former Provincial Adviser, were examined. The prosecution was conducted by Mr. Brohi while the accused were represented by different counsel. After the evidence was over and arguments heard the case was fixed for 17th May, 1958, for the announcement of judgment.

Finding Suleri and Qureshi guilty under S. 500 of the Pakistan Penal Code, the learned Judge sentenced them, besides fine, to two years imprisonment each. Hakim Saif Ali was directed to be prosecuted on six charges for giving false evidence and on two charges for producing forged documents in Court. The findings arrived at were that both the letters produced by Saif Ali were forgeries and that the original of the photostat copy, the facsimile of which was published in the Times of Karachi', had been destroyed and the photostat copy produced in Court forged. Profuse and adverse references in the judgment were made to the conduct of Mr. Noon. The reasons for the conviction of the accused concluded with paragraph 82 of the judgment and as regards the sentence the learned Judge stated in that paragraph: I will deal with that question a little later, after I have dealt with some other points of some importance". These points were the subject‑matter of paragraphs 83 to 88 and they all related to Mr. Noon. I shall later give the purport of these paragraphs it is sufficient to state at present that if they did not occur in a judgment they would amount to defamation.

Before I deal with the questions that arise for decision in this case it is necessary to refer to what happened in Court on the 17th May 1958, when the judgment was announced and outside the Court on the following day as a result of the judgment. It is stated in the petition for special leave to appeal: ‑

"(6) That at the time of the announcement of the judgment the learned Judge read out these passages (paras 83‑88) to a packed audience who clapped. After reading out the judgment the learned Judge addressed the counsel for the complainant and advised the complainant to take proceedings against the petitioner to which advice the counsel of the complainant bowed in compliance.

(7) That as a consequence of the remarks made and the advice tendered to the complainant several people have made public statements calling upon the petitioner to resign from his office of the Prime Minister of Pakistan forthwith. Some important newspapers have published leading articles to that effect also. Copies of the issues of the Daily Pakistan Times, Nawa‑i‑Waqt and the Civil & Military Gazette are appended herewith".

The copy of Pakistan Times enclosed with the petition gives the following account of the proceedings of 17th May, 1958: -

"The High Court premises were heavily guarded on Saturday. A large crowd bad collected outside the Court room of the Chief Justice where Mr. Justice Shabir Ahmad was to announce the judgment. The visitors formed long queues in front of the closed doors of the Court which were opened at 9‑15 a.m. The crowd rushed into the room and a number of door panes were broken.

His Lordship announced the judgment at 9‑30 a.m. and after pronouncing the sentence on the accused he read out some of his observations.

Some of the observations of the Court caused sensation in the Court room and when His Lordship read out his comments about the Prime Minister suggesting to the complainant that he should proceed against Mr. Noon in a Court of Law a section of those present in the Court room started clapping."

We sent a copy of the petition to the learned Judge for his comments and he contradicts the allegation that he addressed the counsel of the complainant or advised the complainant to take proceedings against the appellant. As regards the clapping by the audience he says that he expressed his disapproval by raising his hand.

The judgment produced an immediate and dramatic effect. It appears that copies of the judgment had been prepared in advance and were distributed to the representatives of the Press and on request supplied to some diplomatic missions in Lahore. The full text of the judgment was published in several newspapers. In its issue of 18th May, 1958, the Civil & Military Gazette published a leader under the heading Resign', advising Mr. Noon to resign immediately from the Prime Ministership of Pakistan and to decline all office until his part in the affair had been clarified. The Nawa‑i‑Waqt in its issue of the 19th May published a full translation of the judgment and wrote a leader under the heading "what decency and morality demands" expressing the opinion that Mr. Noon was not a fit person to continue as Prime Minister and control the destinies pf 8 million of people and that decency and morality demanded that in view of the remarks made against him by the Judge he should resign from office.

It is in these circumstances that a petition for special leave to appeal from the judgment was made to this Court. When the petition came up for hearing at Dacca I had some doubts whether a petition of this nature could be entertained by the Supreme Court and this doubt appeared to be shared by some other members of the Court. It was for this reason that we reserved for fuller consideration the question of our competency to grant special leave to appeal. We have now heard at length Mr. Manzur Qadir, the Attorney‑General Mr. Faiyaz Ali, Mr. Mushtaq Ahmad, the Advocate‑General for West Pakistan, and the amicus curiae Mr. Bashir Ahmad. The appellant had not made Mr. Gurmani a respondent to the appeal, and since the conviction was no being called in question we considered it unnecessary to implead him or to give him notice. In view of the fact, however, that the Attorney‑General's own conduct appeared .to have come under comment in the judgment and we desired a fair and unbiased presentation of both sides of the case, we requested Mr. Bashir Ahmad as amicus curiae to assist us in the solution of the legal questions that arose for determination.

After hearing arguments which have been of a very high order and a careful perusal of the terms of Art. 160 of the Constitution and bearing in mind the principle on which this Court's jurisdic tion to interfere with the proceedings of all Courts or tribunals in Pakistan is founded, I have arrived at the conclusion that provided a case for interference has been made out our jurisdic tion to set a judicial error right in the interests of public justice is unquestionable. The Articles that set out the limits of this Court's jurisdiction are 156,;57, 158, 159, 160, 161, 162 and 163. Article 156 deals with the original jurisdiction, Article 157 with the appellate jurisdiction in constitutional matters, Article 158 with the appellate jurisdiction in civil matters, Article 159 with the appellate jurisdiction in criminal cases, Article 161 with the power of review and Article 162 with the advisory jurisdiction, of the Supreme Court. Article 160 which is invoked in the present case is as follows: ‑

"Notwithstanding anything in this Part, the Supreme Court may grant special leave to appeal from any judgment, decree, order or sentence of any Court or tribunal in Pakistan, other than a Court or tribunal constituted by or under any law relating to the Armed Forces".

It will be noticed that the word final' before the word order' that occurs in Articles 157, 158 and 159 is omitted in Article 160 in order to enable the Court to interfere even with interlocutory orders. The Article is an overriding provision because it commences with the obstante clause Notwithstanding anything in this Part, and it leaves entirely to the discretion of the Supreme Court to grant special leave to appeal provided the appeal is from a judgment, decree, order or sentence of any Court or tribunal in Pakistan. The question in what cases this Court will grant special leave is essentially a different question from the one whether it has the jurisdiction to grant special leave if it be of the opinion that such leave should be given. The Article imposes no restrictions whatsoever in regard to the persons who may apply for leave to appeal or as to the grounds on which leave to appeal may be prayed for. When leave to appeal has been granted and the matter is properly before the Court, the Court, under clause (3) of Article 163, has the power to issue such directions, orders, decrees or writs as may be necessary for doing complete justice in any case or matter pending before it. The plain meanings of this constitutional provision appears to me to be that if the Court is of the view that there exist special grounds for giving leave to appeal from any judgment; decree, order or sentence, it ha full jurisdiction to do so. The Article does not say that only a party to the proceedings may ask for special leave to appeal though where the application for leave is by a person who is not a party, the Court, while considering the question of granting special leave, will have to examine the nature of his interest in the proceedings and whether he is adversely affected by the judgment, decree, order or sentence. In the same manner, once a case for interfer ence of the Court has been established, it will have to consider what relief is to be given to the appellant in order to meet the ends of justice. Before granting special leave it is not at all necessary to require the applicant to ask for the reversal of the whole judgment, decree, order or sentence. Mr. Bashir Ahmad has contended that the appeal can only have reference to the operative part of the judgment, and not to any other part of the judgment which does not amount to a definite order, sentence or direction, and that therefore no special leave to appeal can be given where the applicant does not pray for the reversal, setting aside alteration or modification of any substantive or executable part of the judgment. The word judgment is not defined by the Constitution or by the Code of. Criminal Procedure and I have no doubt that as used in Article 160 it is to be understood in its ordinary signification, namely, where a written judgment is required by law, the document which for the reasons stated therein concludes the trial and disposes of the proceedings. Mr. Bashir Ahmad admits that a person who is not a party may ask for special leave to appeal under Article 160 if he is a person aggrieved, and on, this admis sion I do not see how it can be contended that the petition for special leave to appeal in a criminal matter is competent only if it attacks the operative part of the judgment, because ex hypothesis if an attack on an operative part of the judgment is an essential condition of the Court's jurisdiction to grant special leave, the petition for special leave to appeal cannot but be by a party. There are cases where this Court, acting as the Federal Court before the commencement of the Constitution, has in criminal matters, given special leave to appeal to persons who were not parties to the proceedings. In one of these cases we have given special leave to appeal to a person against whom an offence was alleged to have been committed by the accused persons who were acquitted. But the case which succinctly enunciates the principle on which this Court exercises its powers to grant special leave to appeal is Muhammad Ashiq v. Allah Bakhsh (P L D 1957 S C (Pak.) 293), in which the son of a person who had been murdered applied for special leave to appeal from a judgment of acquittal by the High Court, The petitioner for leave was not the complainant, but merely a person who had given information to the police of the commission of the offence of murder. After examining the claim of a complainant in a criminal case to apply for special leave to appeal, our brother Cornelius, J., in delivering the opinion of the Court, stated the following principle on which this Court's power and its duty to grant special leave to appeal rests. He said: ‑

"'We must not however be understood to say that this Court has Rio jurisdiction to interfere with an order of acquittal by a High Court or any other Court otherwise than upon appeal by the State. There are circumstances in which such as appeal may be clearly competent; e.g., where the prosecution was commenced and continued upon a private complaint. In a more general view of the Court's jurisdiction, which is still being exercised on the principles laid down by the Privy Council in a number of cases where the limits of their jurisdiction in criminal matters came under consideration, we feel no doubt in saying that the Court will not in a proper case hesitate to interfere where the circumstances indicate that there has been a grave miscarriage of justice, by some disregard of the forms of legal process, or by some violation of the principles of natural justice. The obligation to do so under the changed conditions following the enactment of the Constitution Act in 1956 is in no wise altered from the position as it was stated by the Privy Council in the case of Bertrand (L R (1887) I P C 520) in the following words: ‑

Upon principle and reference to the decisions of this Committee, it seems undeniable that in all cases, criminal as well as civil, arising in places from which an appeal would lie, and where, either by the terms of a charter or Statute, the authority has not been parted with, it is the inherent prerogative right, and, on all proper occasions, the duty of the Queen‑in Council to exercise an appellate jurisdiction with a view not only to ensure, so far may be, the due administration of justice in the individual case, but also to preserve the due course of procedure generally .

Then after mentioning some of the circumstances in Bertrand's case which might render it proper for the Judicial Committee to entertain an appeal, and referring to Dillet's case, (L R 12 App. Cas. 459) which contains a definition of the limits laid upon itself by the Judicial Committee in relation to its criminal jurisdiction, the learned Judge proceeded to say:

It is quite conceivable that these conditions might be satisfied in a case in which the State might not choose to move this Court against an order of acquittal, and it is therefore of great import ance that we should not be understood to pronounce an absolute bar against motions of the present kind. There may be no other means of preventing the kind of consequences which are conceived, in the passages quoted above from Bertrand's case, as attracting the duty of the Sovereign to exercise the inherent jurisdiction, derived from the prerogative, to entertain an appeal. That jurisdiction has now devolved upon this Court, and falls to be exercised under Article 160 of the Constitution .

By clause (4) of Article 227 the Supreme Court without prejudice to the other provisions of the Constitution, has the game jurisdiction and powers as were, immediately before the constitution Day, exercisable by the Federal Court, the extent of whose jurisdiction under the Privy Council (Abolition of Jurisdict ion) Act, 1950, was explained in the case of Fazal Ilahi v. The Crown (1), which was somewhat a similar case because one of the orders made suo motu there was that certain passages from the judgment of the High Court be expunged. Stating this power to be included among the powers conferred on it by the Constitution, the Court said at page 90:

"The same conclusion can also be based upon the considera tion of more than one of the relevant provisions in the Constitu tion of Pakistan. To take only one such provision, the words 'doing complete justice in any cause or matter pending before it' occurring in section 209, are used with intention to invest the Federal Court with the widest possible powers for the dispensation of 'complete justice' which must be understood in a sense extending ‑beyond the mere resolution of the rights inter se of the parties before this Court in any cause. Hence also the employment of the expression 'matter', which has reference to all justifiable matters, and therefore possesses a scope far exceed ing that of the word 'cause', which is limited by the sense it carries of a grievance coming to notice at the instance of a party against another. It goes without saying that, if for the sake of doing 'complete justice' in a matter, it becomes necessary for this Court to examine its own records, for the purpose of deleting matter therefrom, it will not allow itself to be deterred in the performance of that duty, by any considerations of its own dignity or of the sanctity of its records".

Section 209 of the Government of India Act, 1935, under which the Federal Court exercised the power to expunge now appears as Article 163 (3) of the Constitution, and if such power existed under that Act, it undoubtedly exists under the present Constitution. ‑ Muhammad Ashiq's case related to this Court's power to grant special leave to appeal from an order of acquittal where the State chooses not to move in the matter, but the principle stated there is of a much wider application and governs all cases where considering the circumstances of a particular case this Court, considers it to be necessary in the interest of justice to interfere. If, therefore, we find that the learned Judge in making in his judgment the observations to which objection has been taken by the appellant transgressed the limits within which he was to function while deciding the case which was before him, or that he departed from the legal principle by which his power to make comments, on the conduct of a person, who was not before him and to whom no opportunity was given to explain the circumstances appearing in the evidence against him, was barred there can be no doubt that a case for our interference will have been made out. For otherwise the injury will remain un-repaired and the appellant who was never given an opportunity to be heard will have no means of having the stigma on his character arid reputation removed: I cannot contemplate any such result to be possible when under' the Constitution there exists a Court which is the repository of all ultimate judicial power of the State.

Our jurisdiction to interfere, in case we consider such inter ference to be necessary to prevent an abuse of judicial process, being unquestionable, the next question that has to be considered is whether this Court should interfere at the present stage. Suleri and Qureshi have filed an appeal in the High Court under section 411‑A of the Code of Criminal Procedure, which will be heard by a Division Bench after the vacation. The appeal is a full appeal, because on matters of law it lies as of right, and the learned Judge has himself certified the case to be a fit one for appeal on facts. The Bench, which hears the appeal will have full power to review the facts and the law applicable and to pass such order as it may deem fit under section 423 of the Code of Criminal Procedure. If it is open to the appellant to seek redress from the appellate bench, we would not like to short‑circuit this case and would prefer' to wait until the appeal has been disposed of. If the High Court also has jurisdiction to grant the relief R claimed by the appellant our jurisdiction in that case would be concurrent with that of the High Court. There are several cases where the Privy Council after the passing of the Judicial Committee Act, 1844 (7 & 8 Vict. C. 69), granted leave to appeal without any intermediate appeal to the Court of Error in a Dominion or Colony, (See Re. Barnett, (1) Harrison v. Scott, (2) Attorney‑General of Jamaica v. Manderson (3), and the mere fact that the High Court has concurrent jurisdiction would be no S bar to our entertaining the appeal under. Article 160 of the Constitution. In many other cases we have not hesitated to entertain applications which also lay to the High Court, an instance, in point being where an applicant moves the Supreme Court in the first instance for the enforcement of a fundamental right which relief he can also obtain from the High Court in the exercise of its writ jurisdiction. In the present case, however, we would have considered it to be discourteous to the High Court if riot actually embarrassing to it, to entertain this appeal before that Court expressed its final opinion. But having, heard arguments on the question whether the appellant can approach the High Court for the relief he seeks from us, we have arrived at the conclusion that ,that Court has no jurisdiction in the matter.

Mr. Bashir Ahmad, to whom we are grateful for the industry with which he has prepared his arguments and the candour with which he has placed both points of view before us, has argued that with the insertion of section 411‑A in the Criminal Procedure Code by Act XXVI of 1943 a new Court of appeal has been set up which is superior to the single Judge exercising extraordinary original criminal jurisdiction of the High Court, that therefore such single judge is an inferior court within the meaning of section 435 of the Code of Criminal Procedure, and that accord ingly the appellate bench can, under section 435 read with sections 439 and 423 of the Criminal Procedure Code, exercise revisional jurisdiction over him and order the expunction of offending passages from the judgment. In order to appreciate and determine this point it is necessary to state the history of the jurisdiction that the High Courts have claimed to expunge offending passages from the judgments of lower courts. Before the insertion of section 561‑A in the Code of Criminal Procedure by Act XVIII of 1923, it was the practice of the High Courts in India to expunge such passages from the judgments of sub ordinate courts, but in none of. The cases were the source from which this power was derived examined. In some of the cases, the Court contented itself by stating that such jurisdiction was inherent to a High Court. The matter was fully considered for the first time by Stuart and Gokal Prashad JJ. in Dunn v. Emperor, (44 I L R All. 401), where distinguishing the earlier cases on the ground that the courts which had ordered the expunction of disparaging remarks from the judgments of lower courts had done, so while adjudicating on final orders in appeal, they held that where effective orders of the lower courts are not before the High Court either in appeal or on revision, the High Court has no jurisdiction to expunge remarks or passages from the judgment of the lower court. At the conclusion of the judgment the learned Judges suggested the amendment of the Code if it was thought that the grievances of persons who were unjustly criticised by courts of law were so great as to require a special enactment for their protection.

It was after this judgment that section 561‑A was inserted in the Criminal Procedure Code in 1923. It was stated in the Objects and Reasons that the object of the new section was to save the inherent powers of the High Courts to expunge objec tionable matter from the record of a lower court. After the new section came into force, the Allahabad High Court (vide Panchanan Banerji v. Upendra Nath) (I L R 49 All 254), thought that the law as laid down in Dunn v. Emperor had been changed and that the High Court's power to delete offensive remarks or passages from the judgments of lower courts was recognised, and this view is held by almost all the High Courts with the exception of the Bombay and Patna High Courts which still hold that the law was correctly laid down in Dunn v. Emperor and that it has not been altered by the insertion of the new section. (Rogers v. Shriniwas Gopal (1 I, R 1940 Bom. 415); Bhutnath Khawas v. Dasrathidas (A I R 1941 Pat. 544). The latest Bombay case adopts a new approach to this question, namely, that while the High Court has no jurisdiction to expunge, it may in a proper case, on an application under section 561‑A, judicially correct the judgment of the lower Court by pointing out that the remarks objected to‑ were unjustified. Thus there is divergence of opinion even on the question whether under section 561‑A of the Code of Criminal Procedure the High Court has an inherent power to expunge undesirable remarks from the judgment of a lower court.

The question before us, however, is not of the powers of a High Court to expunge passages from the judgments of lower Courts but whether a Division Bench hearing an appeal under section 411‑A of the Criminal Procedure Code has the power to expunge offensive passages from the judgment of a single Judge of the High Court, acting in exercise of extraordinary original criminal jurisdiction, whose judgment is under appeal. There are two cases, viv. In re Malik Umar Hayat Khan (6 1 C 611) and Crown v. Makhan Lal, (48 Cr. L J 660) the first in the Chief Court of the Punjab and the other in the High Court of Lahore, where the power to expunge remarks from judgments delivered by the same Court was assumed but no reasons are stated in either of them for the derivation of such authority. On the contrary, the Code of Criminal Procedure contains a provision in section 369 which expressly provides that "Save as otherwise provided by this Code or by any other law for the time being in force or, in the case of a High Court established by Royal Charter by the Letters Patent of such High Court, no Court when it has signed its judg ment, shall alter or review the same, except to correct a clerical error", and we have the authority of the Privy Council itself in Lala Jairam Das v. King Emperor (72 I A 120), that a High Court has no inherent jurisdiction under section 561‑A to alter its judgment which is prohibited by section 369 of the Code. The general principle that no Court can claim inherent jurisdiction to exercise powers expressly taken' away by legislation has also been clearly stated by the Privy Council in Kumar Singh Chhahajor v. King Emperor (73 1 A 199). It seems to me to be perfectly clear, therefore,) that by reason of section 369, Code of Criminal Procedure, a, High Court has no inherent jurisdiction to amend its judgment by deleting passages from it.

We are now in a position,' to examine the issue raised by Mr. Bashir Ahmad that with the insertion of section 411‑A in the Code of Criminal Procedure a new superior Court has been created which has revisional jurisdiction over the single Judge acting on the original criminal side of the High Court and that in the exercise of such jurisdiction the appellate Court functioning under that section has the power to expunge passages from the judgment of the single Judge. The argument runs somewhat like this: the single Judge is, qua the appellate bench, an inferior Court, record of whose Court can be sent for by the appellate Court under section 435 of Criminal Procedure Code which provides that the High Court may call for and examine the record of any proceedings before any inferior Court situate within the local limits of its jurisdiction for the purpose of satisfying itself as to the correctness, legality or propriety of any finding sentence or order recorded or passed, or as to the regularity of any proceedings before such Court. When such record has been sent for, the appellate Court can under section 439, exercise any of the powers conferred on a Court of appeal by sections 423, 426, 427 and 428 or on a Court by section 338. Under section 423 one of the powers of the appellate Court is to "make any amendment or any consequential or incidental order that may be just or proper" and in the exercise of that power the appellate Court earl amend the judgment of the single Judge by deleting passages from it. Special attention in this connection is drawn to subsection (4) of section 439 which provides that "nothing in this section applies to an entry made under section 273" and to the words in clause (b) of subsection (1) of section 423 "or order him to be retried by a Court of competent jurisdiction subordinate to such appellate court, or committed for trial". The point made is that if the appellate bench had no revisional jurisdiction over the Judge exercising original jurisdiction, it was entirely unnecessary in section 439 to say that nothing in that section applies to an entry made under section 273 which occurs in that chapter of the Code which deals with trials before High Courts, and as regards the words in clause (b) the argument is that since where a case has been tried by a Judge in the exercise of original criminal jurisdiction of the High Court the case may be remitted to him for retrial, he is a Court of competent jurisdiction subordinate to the appellate Court. Reliance in this connection is placed on two Indian decisions viz., Krishna Ji Vithal Kangutkar v. Emperor (A I R 1949 Bom. 29) and Parbati Devi v. State (A I R 1952 Cal. 835). In the first of these cases it was held by Chagla C. J., and Bhagwati J., that "inferior criminal Court" in section 435 of the Criminal Procedure Code only means a court judicially inferior to the High Court, that a Court is inferior to another Court if an appeal lies from the former to the latter, that the High Court in Sessions exercising original criminal jurisdiction is inferior to .the High Court on its appellate side as appeals lie from the former to the latter, and that therefore a revision to the appellate Court is competent from an order made by a Judge presiding over the Sessions in the High Court. In the Calcutta case the view taken seems to be that where an appeal under section 411‑A is being heard by the High Court,. the appellate bench, in exercise of the powers under section 439 of the Code of Criminal Procedure, may, in its discretion, exercise any of the powers conferred on a Court of appeal by section 423, the reason being that the reference to section 411‑A in section 423 unmistakably indicates that the High Court while hearing an appeal from the conviction of an accused by the Court of Session on the original side of the High Court has in relation to the latter Court powers and jurisdiction in certain respects which a superior Court has over a subordinate Court. A contrary view, however, has been taken by the Madras High Court in Re Nookiah, (A I R 1954 Mad. 918) where the Bombay case has been disapproved on the ground that it was based on an erroneous decision and ran counter to the view of the other High Courts, and the Calcutta case has been distinguished on the ground that the view expressed therein of revisional powers was not the ratio decidendi and that the learned Judges deciding that case purported to derive their power to acquit a non‑appealing accused from section 561‑A of the Criminal Procedure Code.

In my opinion the insertion of section 411‑A in the Criminal Procedure Code has merely enlarged the appellate powers of the High Court and has not created a new Court to which the Judge exercising original criminal jurisdiction is inferior or subordinate. Before the enactment of section 411‑A there was no appellate jurisdiction in the High Court over any Judge or Judges of the High Court exercising original criminal jurisdiction and it is difficult to see how a mere provision empowering a bench of the High Court in a restricted class of cases to rectify errors of members of the same Court can have the effect of making the latter inferior to the former, particularly when the two positions are not constant and can be interchanged from time to time by an order of the Chief Justice. In Goonesinhu v. Kretser (AIR 1945 P C 83) the Privy Council has held that a writ of certiorari, which is m the nature of a revisional order and can only be issued to an inferior Court, cannot be issued by a superior Court to bring up an order made by a Judge of that Court, and in civil cases revisional jurisdiction has never been claimed by a Division Bench hearing under the Letters Patent an appeal from the order of‑ a single Judge, which jurisdiction would undoubtedly follow if the reasoning in the Bombay case or the Calcutta case on which reliance is placed by Mr. Bashir Ahmad were correct. It appears to me that the mere conferment of restricted additional appellate jurisdiction on a bench of the High Court does not have the effect of converting another bench, which exercises the original powers of the High Court, a subordinate or inferior Court. Section 411‑A confers limited appellate powers on the High Court and does not give to that Court full powers of appeal from the judgment of a Judge exercising original ‑ criminal jurisdiction. Though an appeal under that section lies as of right on a question of law, no appeal on a question of fact lies unless the case is certified by the original Judge to be a fit one for appeal, or unless the leave 9f the appellate bench is obtained. Further, an appeal under that section can be brought only by a person who has been convicted or by the Public Prosecutor under the instructions of the Provincial Government. The additional jurisdiction of the High Court having been defined h with such precision it is impossible to argue that any more powers were impliedly intended to be conferred so as to make that Court a Court of general revisional jurisdiction qua other members of the same Court. The Court that functions in exercise of the original criminal jurisdiction or in exercise of the appellate jurisdiction under section 411‑A is the same Court viz,, the High Court, and'' not two different Courts, the respective powers possessed by the Judges while functioning in two different capacities being the powers of the same Court and the distribution of those powers being no more than an internal arrangement among the Judges of the same Court. The records of both the benches are records of the same, Court and not of two different Courts. There are of course two judgments in such a case, one by the original Judge or Judges and the other by the appellate Judges, but they are both judgments of the same Court though by law the judgment of the appellate bench in case of reversal or modification overrides the judgments of the original Judge.

I do not see how subsection (4) of Section 439 can help Mr. Bashir Ahmad. Admittedly before the enactment of section 41 l‑A no revisional powers existed and such powers are now being claimed only as a result of that enactment. But sub section (4) in its present form existed even before the insertion of section 411‑A and if revisionai p.)wers did not exist after that subsection had been enacted, section 411‑A can have nothing to do with the existence or non‑existence of those powers.

As regards the contention that since the appellate beach may remit the case for retrial to the original bench, the latter is a Court of competent jurisdiction subordinate to the appellate bench, all that need be stated is that the argument begs the question and assumes what has to be shown. If the original bench is not subordinate, the case cannot be remitted to it for retrial. The remittal must be to some other competent Court because after the trial of a case in exercise of the extraordinary criminal juris diction of the High Court the original bench, being functus officer, I ceases to exist, and can be re‑formed only by all order of the Chief Justice if the case after having been remitted to another subor dinate Court of competent jurisdiction is again intended to tried on the original side of the High Court.

For the reasons just stated the Judge trying a criminal case in exercise of the extraordinary criminal jurisdiction of the high Court cannot be held to be an inferior criminal Court within the meaning of section 435 of the Code of Criminal Procedure. Nor can it be said that the record of the trial Judge in such a case otherwise comes to the knowledge of the High Court within the meaning of section 439 of the Code. The record mentioned in i that section is the record of an inferior Court and not of the High Court itself which is always supposed to be within the know ledge of that Court, and to which the words in section 439 "which otherwise comes to its knowledge" are clearly inapplicable. 1 am therefore of the view that the bench hearing the appeal of the convicted persons under section 411‑A has no revisional juris diction over the Judge who tried this case and consequently no power to expunge any remarks or passages from his judgment. In this view of the matter it is unnecessary to consider the next contention of Mr. Bashir Ahmad that by reason of the difference in the phraseology of section 435 and section 423 of the Code of Criminal Procedure, a Court of revision has wider powers, both as regards subject‑matter and the form of revisional order, than a Court of appeal. And it is not and cannot be contended that an Appellate Court, merely as such Court, has the jurisdiction to expunge passages from a judgment under appeal. Of course it has the power to express its own view of the matter or matters to which the objectionable passages relate but it does not possess the power of expunction simpliciter, which in its nature and incidents, is essentially different. Any contrary view would invest all appellate Courts, including subordinate Courts, with a power, which has never existed, been exercised or claimed. And in the present case, the appellant has, in view of the terms of section 411‑A, no locus standi to move the appellate Court under; that section and the Court cannot act suo motu, its powers to; entertain an appeal and to pass order thereon having been exhaus tively defined by section 411‑A read with section 423, Criminal Procedure Code. The power to grant relief of the present nature is neither included in the appellate Court's power to "make any amendment which obviously refers to the power to make an amendment in the effective order of the original Court or in the order that the appellate Court may pass under clauses (a), (b) and (c) of subsection (1) of section 423, nor in the power to make any consequential or incidental order which refers to the power to make an order subsidiary to the effective order that it may decide to make under those clauses.

In the present case it is impossible to say that the Division Bench hearing the appeal tinder section 411‑A will be called upon or would be justified, while disposing of the appeal, to make an order directing the expunction of remarks as a consequential or incidental order. The question before them would be whether the appellants have been wrongly convicted and not whether certain passages from the judgment should be expunged. Of course if the passages refer to matters which are relevant, tile Division Bench would be entitled to take a different view but that would not have the effect of expunging the passages which v,. ill permanently remain oft the record of the Court. Section 411‑A gives no right to the appellant to ask for expunction of the remarks, he being not one of the persons who can move the appellate Court under that section. The consequential or incidental order can only follow from the operative order in appeal, which can either be one of affirming the conviction or of setting aside the conviction or of reducing or altering the sentence. In L the same manner the power to make any amendment tinder clause (d) of subsection (1) of section 423 is the power to make an amendment in the operative order of the original Judge or in the appellate order specified in c uses (a), (b) and (c) of sub section (1) and not the power to m2e an order that the judgment itself as a document be amended in a particular way, this being not one of the matters before the bench under section 411‑A. The jurisdiction to expunge offensive or defamatory passages from a judgment is a special jurisdiction and not the general jurisdic tion of an appellate or revisional Court and the remedy that an aggrieved person seeks in such cases is a special remedy, governed 'Al' by its own corpus juris. On a consideration of the question in all its aspects, therefore, I am of the opinion that the relief prayed for in the present appeal is not within the competency of the bench hearing the appeal to grant.

The question that now needs determination is whether the appellant is entitled to the relief that he claims. For that purpose it is necessary to state the purport and trend of the offending passage their reproduction iii extenso being obviously not desir able. The judgment under appeal opens by stating "that there is many an unfortunate features in the case" and near the end details it in paragraph 83 to 88, which all relate the appellant, Though the learned Judge says that he is not recording a finding against the appellant in his absence or that nothing more need be said about a matter, or that an allegation made in the arguments cannot be said to be proved, their effect considered as a whole is to condemn the appellant in more than one respect.

In paragraph 83, the learned Judge considers it to be unfor tunate that Sardar Amanullah should have been used by the appellant as an agent to take the photo-stat copy of the defamatory letter to the press and thereby incur a grave risk of being run in for the publication. There are also references to the services of Raja Ahmad Ali, Political Secretary of the Prime Minister and of Mr. Faiyaz Ali,‑the Attorney‑General of Pakistan, having been utilized by the appellant to assist the accused in an unsuccessful defence.

In paragraph 84, the learned Judge reproduces a letter written by the President to Mr. Gurmani highly appreciating his services as a Governor and then goes on to state that the appellant within a week of the receipt of that letter considered it to be necessary to publish a letter highly defamatory to the complainant, without taking any steps to verify whether its contents were true.

In paragraph 85, it is remarked that it appears to have escaped the notice of those responsible for the publication of the letter that they were indirectly attempting to weaken the Pakistan case for Kashmir. When read in conjunction with the finding that the 'appellant took quite an active part in the publication of the letter, the paragraph suggests the irresistible inference that the appellant indirectly damaged the Kashmir case.

In paragraph 86, the learned Judge considers it to be unfor tunate that the name of the appellant should have been associated with the publication, and proceeds to say that on both the occasions that the defamatory imputation was made against Mr. Gurmani, first by Sheikh Sadiq Hassan and later by the publi cation of the letter, the appellant was in the picture.

In the 87th paragraph the learned Judge considers it to be the duty of Mr. Gurmani to take legal proceedings against the appelant and then proceeds to draw certain inferences if the matter is taken to Court. If the verdict goes against the appellant, says the learned Judge, "the cry will go round never did one so high stoop so low' ", though, he thinks, there will still be persons who 'will admire the appellant for his having taken revenge from Mr. Gurmani for dismissing him from the Chief Minister-ship of the Punjab. He deems it to be in the interests of the country of which the appellant is the Prime Minister that a verdict should be obtained one way or the other. If the matter is not taken to Court, fears the learned Judge, suspicion will continue to attach to the appellant with regard to the publication of the defamatory fetter which publication not only offends against the law of the land but also against the laws of decency. He then goes on to say that "just as a man is known by the company he keeps, a country is known in the outside world by the Prime Minister it chooses", and to express his belief that "Prime Minis ter of the largest Muslim State in the world should be above all suspicion".

In paragraph 88, which is the last of the paragraph objected to, the learned Judge states that he would be happy if in the pro ceedings taken in Court the appellant is found to have been falsely named in connection with the publication of the defamatory letter, but in the very next sentence he expresses the opinion that if what Sardar Amanullah and Hakim Saif Ali state is correct, the appellant should be held to be guilty and that he could be acquitted only on the finding that in accepting what Hakim Saif Ali told him the appellant exhibited incredible credulity and child like gullibility, credulity and gullibility of a magnitude which in the case of a Prime Minister of the largest Muslim State in the world can spell disaster to eighty million citizens.

It cannot be disputed that these remarks are highly offensive and the learned Judge must have known that the appellant had no means to lift the cloud that the learned Judge was raising over his character and reputation, because the Judge himself could not be sued and the complainant was not bound to sue. The learned Judge advised the complainant to take action against the appellant so that the latter may have an opportunity to show that the remarks were unjustified. But though, while this advice was being given, counsel bowed in compliance, Mr. Gurmani might think differently. If the object of taking proceedings for defamation, which in its essential characteristics is merely a private wrong, is the rehabilitation of a damaged reputation, Mr. Gurmani had achieved his object. He might feel satisfied with what the Judge had said about the appellant and not consider it to be necessary or expedient to give the appellant an occasion to clear himself. He might not be as vindictive as the Judge thinks the appellant is. He might not be willing to undergo the expense that the suggested trial would entail and might feel that he may be denied the privi lege of having such trial conducted in the High Court; on transfer from a subordinate Court. And lastly, though Mr. Gurmani, in view of what the Judge had said, might feel perfectly safe before a lower Court, he might not be sine what turn the case might take and what might be its result. Thus if the complainant did not accept the proffered advice, then the learned Judge had made the reputation of the Pritne Minister depend on the action to be taken by another party not very kindly disposed towards him and left for him no course open to vindicate his honour. And if the duty of the complainant to take legal proceedings was not a legal duty, as it obviously was not, the learned Judge should have known that by laying judicial emphasis on that duty and then drawing certain legal inferences if the duty was performed he was pre judging the issue and lending the weight of his authority to con clusions which had to be arrived at after a trial.

In all cases which have come before the Courts, where an, aggrieved person asks for expunction of objectionable remarks made against him in a judgment, one point has consistently been emphasized, namely, that a Judge ought not to make any disparaging remarks against a person who is neither a party nor a witness in the case. I had the occasion to consider this question in the High Court "in the matter of expunging certain remarks made by Mr. Hameed‑ud‑Din (P L R 1950 Lah. 58=P L D 1950 Lah. 34 at p.41), where I said

"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 whenever he enters the precincts of a Court of Justice as a witness or a party. Being fraught with such serious conse quences they should only be made where any hesitation or reluc tance 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 protected 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 func tions. These two conflicting considerations must always be present to the mind of a Judge whenever he is called upon to criticise 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 realize 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 fairplay, that when a Judge decides to condemn a man, whether a party or witness, the facts on which condemnation is intended to be based muss 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, therefor, 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 if not actually without jurisdiction, in comment ing 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".

And in Inayat Ullah Butt v. Cantonment Board Rawalpindi (P L D 1957 (W. P.) Lah. 583) the very learned Judge, from whose judgment we are hearing the appeal went to the extent of holding that if a Court makes dis paraging remarks against a person who is neither a party nor a witness in the case, it exercises a jurisdiction not vested in it by law and acts illegally or with material irregularity in the exercise of a supposed jurisdiction and that such remarks should be order ed to be expunged from the judgment under section 115 of the Code of Civil Procedure. With this view of the law taken by the learned Judge only last year in a published decision, it is not understandable how he considered himself within jurisdiction not only to make the remarks in question but many more of an equally grave character against no less a person than the Prime Minister of the country. We are told that the complainant him self had made an application that the appellant should be called as a witness but the learned Judge declined to summon him, and in the judgment no reference is made to that application nor to the grounds on which it was refused. 1f the appellant had been examined as a witness and the matters which are the subject matter of comment against him in the judgment were relevant and had teen put to him, the learned Judge would have been perfectly justified to make any remarks against the appellant that he considered to be proper and justified with reference to his evidence. But to say all that ‑the learned Judge has chosen to say against the appellant in his absence is to strike a man from behind with out warning him ' to take the blow, a course which the learned Judge has himself strongly condemned in the judgment under appeal. The rule on which remarks against a person who has not been given an opportunity to refute them have been expunged from judgments is based on the principle that when a person is Examin ed as a witness, he has the eight to give his own version in defence arid the party calling him has an occasion to rehabilitate hiss credit by putting him questions in re‑examination. It is for this reason that the practice of making defamatory remarks against a person who is neither a party nor a witness in the case has been repeatedly condemned by superior Courts.

Paragraph 88 of the judgment practically amounts to a con viction of the appellant without his having been heard in defence. Saif Ali is a witness who has been held by the Judge to be thoroughly mendacious and he has been order to be prosecuted on the charge of producing in evidence two forged documents and on six charges of perjury. Nevertheless, the learned Judge thought it proper to say that if on the appellant being sued the evidence of this man and that of Sardar Amanullah was accepted he would prefer a verdict of guilty to that of not guilty and that the appellant, if proceeded against, could only be acquitted if the Court found that he ‑ was incredibly stupid. Thus the learned Judge has practically tried the appellant and convicted him on the evidence of Sardar Amanullah and Hakim Saif Ali because no Court is likely to find that the appellant, who is the leader of the Parliament of Pakistan having been chosen by the majority of that Parliament as their head and consequently appointed by the Presi dent as Prime Minister, is what the learned Judge says he should be held, in order to be acquitted, namely, a teething babe. The learned Judge made it the duty of Mr. Gurmani to take legal action, but he lost sight of the fact that by having said all that he has said about the appellant he was making a fair and impartial T trial for him impossible because after the expression by a Judge of the High Court of such strong views in such strong language no lower Court could approach the case without being influenced by those observations.

It was open to the learned Judge, in a case of this nature, to have a jury to assist him at the trial. And if the trial had been by jury, it is obvious the learned Judge could have had no occasion to say all that he has said about the appellant. His impressions or opinion of the appellant, who was not examined in the case, would have been completely irrelevant and could have found no place‑in a proper addressing to the jury. The publication of the defamatory letter was admitted and proved and the only questions that arose for decision before the Judge were whether the imputa tion was true and whether it was published in good faith, and it is only on the latter question that the appellant's name could have been introduced by the defence in order to show that because Sardar Amanullah had been sent to Mr. Sultan Ahmad to find out whether the press was interested in the publication of the letter, the accused acted in good faith in accepting the authenticity of the letter. But the learned Judge while discussing this issue has rejected the defence of good faith on the ground that it was the duty of the accused to make further enquiry in the matter from Mr. Gurmani and with that finding it is not easy to see how it became necessary for the learned Judge to comment on the appellant's conduct.

But what has caused me most concern is that the learned Judge should have assumed the role of a moral and political refor mer. In his explanation submitted to this Court he states that he considered the alleged objectionable remarks to be necessary in the interests of the appellant and of the country of which he is the Prime Minister. But how can these remarks be considered to be in the interests of the appellant, when the learned Judge's own finding is that if the evidence of Amanullah and Hakim Saif Ali is accepted the appellant is either a criminal or a lunatic And as regards his reference to the interests of the country and the disaster that may fall to eighty million citizens of Pakistan if a man like the appellant were allowed to continue as a Minister, the learned Judge clearly exceeded his function in judicially deter mining the qualifications of a Prime Minister. This is pure politics, and when politics enter the portal of the Palace of Justice, democracy, its cherished inmate, walks out by the black‑door. A Judge's duty in a given case is to adjudicate on the right or liability, the question of the existence or non‑existence of which is raised before him, and this function he must discharge accord ing to law and not according to what in his opinion the interests of the country or the State demand. The Constitution entrusts the interests of the country, in the appointment of a Prime Minister, to the members of Parliament who are chosen by the people of the land, and if the country is ruined by a wrong choice of the Prime Minister, the responsibility for the disaster is that of the y people and their representatives and . not of the Judge. The Judge's duty is to administer the law and not to lay down moral or political standards for the choice of a Prime Minister. The question whether a fool or a sage, a saint or a Machiavelli should be chosen as the Prime Minister of the country is the concern of Parliament and the President and in that matter neither of them needs any judicially carved pronouncement or advice. It may be that the learned Judge believed that by running down and ridiculing ex parte a Prime Minister duly appointed under a demo cratic constitution, he was rendering a service to the country and taking the High Court to the skies for its independence, but I have no doubt that in employing judicial process to a purpose foreign to it he travelled beyond his functions and grievously erred in law. Further litigation, of a high order though, and a stir in political and foreign dove‑cots‑to serve the interests of the country‑could be the only result of the irrelevant dissertation in which the learned Judge thought fit to indulge.

It is a matter of great regret that the learned Judge should have permitted himself, on argument or otherwise, to be drawn into a controversy which had nothing to do with him as a Judge, and since every recognised ground for expunction of remarks against a stranger, including the ground stated by the Judge in an earlier decision, exists in this case, I would accept this appeal and acting under Article 163 (3) of the Constitution order that para graphs 83 to 88 be deleted from the judgment of the High Court.

The appellant will have his costs from the State and Mr. Bashir Ahmad's fees as Senior Counsel and expenses as certified by the Registrar will be paid by the Central Government.

SHAHABUDDIN, J

.‑‑I agree with the order proposed and the reasons given by my Lord the Chief Justice. I should, however, like to add a few observations.

In the first sentence of his judgment the learned Judge of the High Court has observed that the case before him had many in unfortunate feature, but in the case as it stands at present the most unfortunate feature is the portion of the judgment for the expunction of which the appellant has approached this Court. That their observations contained in that portion (paragraphs 83 to 88 both inclusive) were not necessary for reaching the conclusion in the case is evident from the place the learned Judge himself has given them in his judgment. In paragraph 82 he has dealt with the question as to what offence or offences had been proved and against which of the accused. At the end of that paragraph he came to the conclusion that both the accused were guilty under S. 500, Pakistan Penal Code, and after convicting them accordingly he went on to say that he would deal with some of the points of importance, and those points are cqvered by the observations contained in the above mentioned paragraphs. In paragraph 57 of the judg ment he observed

"As, however, Malik Feroze Khan Noon is not a party to this case, it is not the province of this judgment to determine what part he took in the matter which is the subject of this trial, and I would not give a finding one way or the other on the contention of Mr. Brohi that Malik Feroze Khan Noon and Hakim Saif Ali acted in concert in the matter".

It is surprising that having come to the above conclusion the learned Judge proceeded to make in the paragraphs now sought to be expunged observations which taken together amount to a condemnation of the appellant, although they also contain the statement that a finding was not being recorded as the appellant was not a party or a witness in the case.

That a person should not be condemned without being given an opportunity of being heard is one of the fundamental principles of natural justice and therefore disparaging remarks in a judgment against persons who are neither parties nor witnesses in the case have been expunged by the High Courts in several instances. The learned Judge himself acted on this principle in Sh. Inayat Ullah Butt v. Cantonment Board, Rawalpindi (P L D 1957 Lah. 583). There, the wife of Inayatullah Butt brought a suit for an injunction restraining the Rawalpindi Cantonment Board from reauctioning the lease of a particular land, which she had bought for Rs. 2,700 of the first auction. The Commander‑in‑Chief of the land forces suspended. the resolution of the Cantonment Board approving of the sale and ultimately when the property was re‑auctioned it fetched Rs. 30,000. The Senior Civil Judge in dismissing the suit observed that ‑the plaintiff was the wife of Mr. Inayat Ullah Butt who was a Member of the Board and Chairman of the Finance and Taxation Committee which confirmed the auction in favour of the plaintiff and that it was clear that the auction in dispute was the result of some manipulation on the part of the plaintiff's husband. The learned Judge in expunging the words to the effect that there was manipulation on the part of the plaintiff's husband observed as follows :

"It is well‑settled that Courts should say nothing that is likely to prejudicially affect a person without hearing that person. The reason for this rule is that remarks made by Courts are likely to be used by interested persons against the person about whom they were made, and consequently it has been laid down in a large number of cases decided by High Courts that disparaging remarks should not be made by Courts against persons who are neither parties nor witnesses before them. The petitioner was not a party to the suit and the fact that his wife was the plaintiff does not, to my mind, make any difference to our present purpose. The petitioner was, not a witness either and condemning him without hearing him offends against the salutary rule followed by Courts in this respect." '

This observation applies equally to the present case, and yet the learned Judge did not hesitate to make disparaging remark against the appellant who was neither a party nor a witness and had there fore no opportunity of meeting the allegations made against him in the evidence.

One of the observations was that it was the duty of the complainant in the case to take proceedings against the appellant either in a criminal or civil Court. Having said so the learned Judge practically speculated about the effect on the public of a verdict .for or against the appellant and in that connection went to the extent of saying that it' what Sardar Aman Ullah (C. W. 2) and Hakim Saif Ali (C. W, 3) stated before him was accepted he would prefer a finding of guilty to that of not guilty. He further observed to the effect that if in spite of believing these two witnesses the appellant was found not guilty, that could be only on the basis that the appellant believed all that Hakim Saif Ali told him about the original of the photo-stat copy and that such a finding would amount to the appellant having exhibited "incredible credulity and childlike gullibility". The learned Judge appears to have overlooked the fact that the remarks he was making would greatly prejudice the appellant in any proceeding the complainant may bring against him in connection with the subject of the present case.

The ends of justice, therefore, require the expunction of these paragraphs, and I have no doubt that this Court has power to expunge them. The language of Article 160 makes it clear that this Court has been given powers of the widest amplitude in the matter of granting special leave to appeal. There are no restrictions as regard the persons to whom leave can be granted. Mr. Bashir Ahmad who appeared as amicus curiae while conceding this position argued that the words "appeal from the judgment" in the Article refer only to an appeal against the operative portion of the judgment. If this contention is accepted it follows that only persons who are parties to the case to which the judgment relates can be given leave to appeal, but that there is no such limitation in Article 160 has been conceded. The words " appeal from the judgment " include appeal from any portion of the judgment and there is no reason to limit the plain meaning of the Article. The order of expunction can be passed under Article 163 (3) of the Constitution.

Though this Court can grant leave to appeal even in cases where its jurisdiction is concurrent with that of any other Court I would not ordinarily grant leave in such cases if the person asking for leave has not approached the other Court, but as contended by Mr. Manzur Qadir the only remedy open to the appellant in the present case was to come to this Court Y In other words, the High Court has no power to expunge any portion of the judgment in question, which though subject to an appeal which has to be heard by two other Judges of the same Court is nevertheless a judgment of the High Court. That power to expunge remarks in a judgment is not included in the powers of an appellate Court is clear from the provisions ,of section 423, Criminal Procedure Code. If the subordinate appellate Courts, while exercising their powers under the said section, consider expunction of any portion of the judgment under appeal called for, they refer the matter to the High Court. The Bench that will hear the appeal of the accused convicted in the present case cannot therefore as an appellate authority order expunction of any portion of the judgment in question. Section 41 U‑A, Criminal Procedure Code, does not give that authority any powers other than those of an appellate Court. The learned Judge who made the observations sought to be expunged is as much a Judge of the Court of Record as the Judges who will hear the appeal. There is, therefore, no question of any one of them being inferior to the others. The judgment in questions is as much a judgment of the High Court as would be the judg ment of the Bench that hears the appeal. If, therefore, the appellate Bench expunges any portion of the judgment under appeal it would be contravening section 369, Criminal Procedure Code. It is therefore clear that this Court alone can grant the relief prayed for by the appellant.

Mr. Bashir Ahmad next contended that interference by this Court at this stage might embarrass the hearing of the appeal. But as has been pointed out above the portion to be expunged is entirely separate from the portion where the grounds for conviction of the accused are discussed. There is, therefore no force in this contention.

CORNELIUS, J

.‑I agree entirely with the judgment of my Lord the Chief Justice and with the order which he has proposed should be made in the case. As that order shows, we are in profound disagreement with the learned Judge of the High Court in regard to much that he has done and said in the judgment, and it is therefore proper that I should give my reasons in my own words.

I will begin with stating as briefly as I can, the case which was placed before the learned fudge for trial. It was a complaint under sections 500 and 501, Pakistan Pena Code, alleging that the two accused persons Z 1. Suleri and Umar Qureshi had defamed the complainant Main Mushtaq Ahmad Gurmani, by publishing in the Times of Karachi', a newspaper of which the accused are Editor‑in‑Chief and Editor respectively, a facsimile of a certain document. This was a letter, which appeared on its face to be a letter written on the 23rd August 1947, by the complainant who was then Prime Minister of Bahawalpur State to a member of the Indian Govern ment, Sardar Patel, who was then Minister of States. It may be stated here, by way of explanation that as a part of the instrument by which the British Government parted with power over the Indian sub‑continent, and created two independent Dominions in place of the old Indian Empire or British India, a scheme was provided by which each of the Indian States was given an option of acceding either to the new India or to Pakistan. The division being on the basis of religion, so that Pakistan was regarded as the home‑land of the Muslims of India, which had been handed over to the major Muslim party namely, the Muslim League to govern, under specified statutory instru ments, it was natural to expect that a State which had a Muslim ruler and a predominantly Muslim ‑population would almost certainly accede to Pakistan. Such a State was Bahawalpur, which lay between the boundaries of India and Pakistan, and it was natural for the people of Pakistan to expect that this State would accede to Pakistan.

At the time of the Partition, the complainant was Prime Minister of this, State. As far back as 1955, allegations had been made in the Press by a Muslim League politician namely Sheikh Sadiq Hasan, to the effect that the complainant in his capacity of Prime Minister had attempted to secure the accession of Bahawalpur to India. That allegation was published in the Press on the 27th May 1955, and began with the statement that the Punjab Provincial Ministry headed by Malik Feroze Khan Noon, the appellant in this case, had been dismissed by the complainant Mr. Gurmani who was then Governor of the Punjab. This action was described as dictatorial and unwise, and it was ascribed to the influence of Mr. Gurmani. The following remark was added

"It is a misfortune of the country that the Central Govern ment hag foisted on the Punjab a Governor who was hostile to the formation of Pakistan and wanted Bahawalpur to accede to India and thus was trying to deprive Pakistan of a province of the overwhelming Muslim Majority."

The very next day, the Central Government issued a press note refuting the allegations against the Punjab Governor and saying that from the evidence available to the Central Government it was clear not only that the allegation was wrong but that on the contrary Mr. Gurmani was responsible for advising the accession of Bahawalpur to Pakistan. Mr. Gurmani also refuted the statement and published certain correspondence in support, but on the 8th June 1955, Sheikh Sadiq Hagan returned to the charge with the statement that Mr. Gurmani should also "publish his secret correspondence with Pandit Nehru and others in India about Bahawalpur State, or deny the allegation and bring a criminal case against me". No answer was apparently given to this challenge and when : Sheikh Sadiq Hasan appeared in the present case as a witness all he was able to say was that he had based his statement on ‑long‑continued rumours.

That incident followed very shortly after the dismissal by Mr. Gurmani of Malik Feroze Khan Noon from the office of Chief Minister of the Punjab. Among the passages of which we are directing the expunction, one viz. paragraph 86 makes pointed reference to this fact,, and attempts to connect it with the publication, on the 3rd September 1957, of the offending letter in the present case.

The substance of the letter in question was that Mr. Gurmani had obtained "the consent of H. E. the Amir about the accession", that all difficulties had been removed, and that the writer's "claim" should "receive due consideration". The letter purported to be sent through a person who would explain all details, and made reference to a previous letter. It has been held by the learned Judge that the' substance of the letter was highly defamatory, as showing that the writer was willing in return for a reward, to hand 'over Bahawalpur State to India, and such a person could only be "a man of a very depraved character who should not be trusted, by Muslims not only of Pakistan but of any place". It would also show that the writer had "tried to stab Pakistan in the back, because it is clear that if Bahawalpur had not acceded to Pakistan, Pakistan would have been very adversely affected". At the same time the learned Judge held that "if the imputation was true, its publication was for the public good because a man who had tried to do such harm to Pakistan as to deprive it of Bahawalpur deserves nothing but condemnation by every resident of Pakistan".

It may be mentioned at this stage that the complainant immediately threatened legal proceedings against the paper for the publication of this letter, and on behalf of the newspaper, a reply was given in the issue of the 7th September 1957, This was to the effect that the letter had been published as an unpleasant public duty performed in the interest of Pakistan and its people, that it had reached the newspaper through "a high source of unimpeachable authenticity" and that the newspaper was unable at that stage to accept that the facsimile was a forgery. In the complaint it was alleged that the letter was a forgery, that no such letter had been written by the complainant to Sardar Patel, nor was the accession of Bahawalpur State to India ever contemplated, and finally that the complainant believed that the letter had been published at the instance of persons holding high office who were his political opponents, and who intended to inure his reputation.

The defences put forward by the accused persons at the close of prosecution evidence, were based largely on their views of journalistic practice and procedure. Mr. Suleri said that lie got information of the letter from his chief correspondent Sultan Ahmad; the chief correspondent is a highly reliable person whose stories usually go through unchecked that Sultan Ahmad had got the information from the Central Govern ment Information Department which is the "paramount channel of authentic information"; and that he had accepted the authenticity of the document upon the basis that it reached Sultan Ahmad from an Information Officer. Mr. Umar Qureshi merely said that he had carried out the instructions of Mr. Suleri. It should be noted that these statements were made at a time when three very important withesses had already been examined namely, the Information Officer concerned, viz., Sardar Amanullah, who was called as a Court witness, Hakim Saif Ali who was a volunteer witness in the case and declared that he was the person who had made these documents available for publication out of his own possession, and Mr. Fazal Karim, who was Private Secretary to Mr. Gurmani at the time when the 'offending letter purported to be written and was indicated by Hakim Saif Ali as the probable writer of the letter. Mr. Fazal Karim had been called as a Court witness, in the course of an investiga tion which the Court had undertaken in the midst of conducting the trial of two accused persons, for the purpose of deciding upon the truth of the statement made by the volunteer witness Hakim Saif Ali. When he appeared, however, the defence objected that he should be called as a witness for the complain int and this was accordingly done.

I have mentioned these witnesses for the particular purpose of showing that certain evidence not led by the defence, had been placed upon the record which tended to show that the letter was probably genuine, and yet even at that stage, the defence did not take the plea that the letter was genuine, or even that the imputation which it contained was true. Subse quently, however, in the course of defence evidence, certain persons were examined them, in order to support the state ment of Hakim Saif Ali, as well as to show that the imputation was probably true. On the latter point the learned Judge took the attitude appearing from the undermentioned extract:

"Even if I find that the original was in the handwriting of the complainant but come to the conclusion that it was written at his instance, I will have no hesitation in giving the benefit of the First Exception of section 499 of the Pakistan Penal Code to the accused".

The first exception referred to saves statements, which are true and are made for the public good. It appears fairly clearly that the accused persons were led to raise the plea under the First exception through the presence upon the record of the statement of Hakim Saif Ali. This statement quite briefly was to the effect that the original of the letter in question, as well as another letter to much the same effect of earlier date viz. the 4th August 1947 'which he produced in Court, were received by him in Kashmir from a community ‑ leader there by the name of Mian Nizamuddin, to whom they had been delivered personally by Sardar Patel to be shown to the people, as proof that his Government's interest in Kashmir was not merely haggadistic, as shown by the fact that they had not accepted the accession of Bahawalpur which had been offered to them. Hakim Saif Ali made further statements to show that he had been in touch with Sardar Patel in Delhi. When he came to Pakistan in the year 1951, he was detained as a spy, and was only freed from his restrictions in the year 1953. This happened, as the learned Judge has pointed out "a bare three months after Malik Feroze Khan Noon had assumed office as Chief Minister of the Punjab". In that year according to Hakim Saif Ali he produced these two documents before a Police Inspector named Syed Talib Hussain who was engaged in investigat ing the circumstances, which led to the assassination of the late Mr. Liaquat Ali Khan, Prime Minister of Pakistan in October 1951. Signatures appeared on the document purporting to be signatures of the said Talit Hussain. He had later mentioned them about August‑September 1957 to a certain politician. To support his evidence, the defence produced the last‑mentioned person, as well as the aforesaid Talib Hussain, and among other witnesses, Mr. Shoaib Qureshi, who was High Commissioner for Pakistan in India, in the year 1953, when a diplomatic exchange of correspondence took place between Pakistan and India, on account of a public statement made by Mr.. Gurmani regarding the intentions of India towards Bahawalpur at the time of the Partition.

This may be a convenient point for stating the result of the volunteer effort by Hakim Saif Ali. He has been disbelieved in regard to the greatest part of his statement, to the extent that the learned Judge has ordered his prosecution for perjury in respect of six particular statements. He has been held to have under taken the fabrication of the two letters he produced before the Court, as well as the endorsements of Talib Hussain appearing in these documents. For the latter acts, his prosecution has been ordered for consciously using fabricated documents as true or genuine evidence.

At the close of the case, in the course of the arguments, counsel for the defence were able on account of the admission of Hakim Saif Ali's evidence, and the reception of evidence by defence witnesses purporting to support that volunteer statement, to present fresh defence upon which neither of the accused persons had relied in their statements at the trial. Among the arguments presented by counsel for Mr. Suleri one was that the substance of the allegation in the offending letter being true, the accused had committed no offence. By this, a defence was laid under the First Exception.

It is now possible to trace clearly and completely the parti cular threads which belonged, in the true sense, to the case which was before the Court. The publication of the letter in question could not be denied, it was only necessary for the Court to come to the conclusion that the substance of the letter was defamatory in order to shift the burden on to the accused persons to show how they were saved from the operation of the relevant punitive sections of the Pakistan Penal Code. As to the defence under the First Exception, the Court laving held that if the imputation were proved to be true, its publication must be held to be for the public good, it was therefore only necessary to decide upon the evidence, whether the imputation was true. This point was fully dealt with by the learned Judge in a series of paragraphs concluding with paragraph‑75 where it was held that Mr. Gurmani was proved to have "done, all that he could towards the accession of Bahawalpur State to Pakistan" and "it was he who succeeded in bringing about the accession of Khairpur State at an early date"; on the other hand, the documentary evidence to show that he had offered the accession of Bahawalpur State to India was "palpably forged" and the oral evidence produced was "either false or entirely worthless" and therefore he held that the imputation against Mr. Gurmani in the offending letter was not true. That finding was sufficient to dispose of the defence under the First Exception, which as has been seen, was only presented, and that somewhat irregularly, in the nature of an afterthought.

The true defence of the accused persons were based upon the Ninth Exception to' section 499 which saves imputations made in good faith for' the public good. The question of public good having already been settled, the learned Judge examined the question of "good faith", and in this connection, he referred to the definition of good faith contained in section ‑ 52 of the Pakistan Penal Code, as well as section 3 of the General Clauses Act. He concluded that the plea' of good faith required that it should be shown that the accused persons had acted with "due care and attention". He found that the only circumstance upon which the plea of good faith was based was that the document had reached the accused persons, through an officer of the Information Department, and since the source was official, the accused were justified in accepting the document as authentic. The learned Judge held that if the information were being given officially, the Information Officer would have issued a press note or handout nothing of this kind having been done, the accused persons were not justified in believing that the news was being issued officially. This was also shown by the fact that the news item was published as emanating from the "Times of Karachi Service". Observing that all acts done by officials are not necessarily official acts, the learned Judge held that the act of Sardar Amanullah was neither official, nor was it believed by the accused persons to be official. He went on to say that for the purpose of establishing "due care and attention", it was necessary for the accused persons to show that they had made enquiries regarding the reliability of the document, and suggested that such enquiry could have been easily made from Mr. Gurmani. The duty of enquiry was emphasised by reference to the denial issued by the Central Government in 1955 when a similar allegation was made by Sheikh Sadiq Hasan. Accordingly, 'the learned Judge held that the accused persons were not entitled to the benefit of the Ninth Exception.

These findings were sufficient for concluding the case. They contained' within themselves the resolution of every question arising properly out of the complaint made by Mr. Gurmani and the defence raised by the accused persons. The case might indeed have been 'reduced still further in scope of the learned Judge had restricted the defence evidence; as he was fully entitled to do, to the precise defences raised by the' accused persons. It is clear from his judgment that they never clearly raised the issue that the imputation contained in the document was true. The natural tendency of the defence to take advantage of the statement of the volunteer witness Hakim Saif Ali need not have been indulged in the manner found. Had these matters been excluded, the learned Judge would have been able to utilise the true threads which ran through the case as the foundation of a judgment in which he could have resolved, with clarity and economy, all the questions which the case posed for his decision. A fabric composed of such threads properly disposed would have been the right, proper and adequate judgment to be delivered in the case.

The mischief of which the appellant complains, .and for the remedying of which we are making the severe order which we propose, has arisen from the introduction into the case of an alien thread, largely through the initiative of the learned Judge himself. The introduction of this new matter for enquiry, which had not been raised by the complainant, and was not relied upon by the defence came from the mouth of a witness Sardar Amanullah who was examined as the first Court witness in the case. This witness declared that he had been given the document which was reproduced in the Times of Karachi' of the 3rd September, by the appellant Malik Feroze Khan Noon at about midday on the 2nd September 1957, with instructions to see if the Press might be interested to publish it, and the remark that Hakim Saif Ali who was there at the time, believed that it was genuine.

I pause here to consider the nature of the act of Sardar Amanullah in making this disclosure before the Court. It has been observed by the learned Judge that Sardar Amanullah is "by no means a highly paid public servant" to whom an order by ‑a Minister "would appear to be an order saying do or die". This passage occurs in paragraph 83 of which we are ordering the expunction. The learned Judge "considered it unfortunate that Sardar Amanullah (C. W. 2) was used as an agent to take the photo-stat copy of the defamatory letter to the Press and thereby take a grave risk of being run in for the publication". That statement clearly prejudges an issue against the appellant, an aspect with which I shall deal later. There is however another aspect of this matter. It is a paramount necessity that officials of a Government should always act, within the scope of their duties, for the public interest, and it is very greatly in the public interest that bodies of officials who are concerned in any particular aspect of governmental activity, should act as a single unit, bound to each other by a certain loyalty, always of course within the scope of public interest. Where such a feeling: which may rightly be described as es prit de corps does A not exist, it is clear that the processes of government must be gravely prejudiced. The law is conscious of this requirement and enforces it by means of several statutes, but at this place I shall make reference only to, that statute which is relevant to the evidence given by Sardar Amanullah, namely, the Evidence Act, 1872: section 124 of which reads as under :

No public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interest would suffer by the dis closure".

It may at first sight appear that Sardar Amanullah was the sole Judge of the necessity or propriety of disclosure, and therefore there is no violation of the law in his having made the statement involving the then Foreign Minister, who is now Prime Minister of Pakistan, in an allegation of almost serious character. But there is more in the section than mere recognition of the judgment of the public servant standing in the witness box. It is the duty of the Court before whom he is deposing to consider whether the disclosure might not have been made "in official qunfidence". This is not necessary only in order to overrule an objection raised by the witness making the disclosure. The purposes of the section are clearly wider than the mere overcoming of such objections. The duty of the Court is attracted likewise when a disclosure is likely to be made which, in the opinion of the Court, might be injurious to the public interest, and in such a case, the Court must enquire and satisfy itself as to whether or not the communication in question was made to the witness in official confidence, and thereafter to inform the witness, who may not be himself aware of the provisions of law, that it is for him to decide whether he will disclose the Matter, and that he cannot be compelled to disclose it if in his opinion, such a disclosure would injure the public interest. It does not appear that in the present case any compulsion was applied to Sardar Amanullah, but if the privilege conferred by section 124, Evidence Act had been brought to his notice, I feel no doubt that he, would have consulted his own superior officers, and even perhaps the Prime Minister himself, before making the statement which is the source of all the abundant mis-chiefs which we find on analysis to be present in paragraphs 83 to 88 as well as in some other parts of the judgments under appeal. It is evident from the judgment that the learned Judge was aware that the making of this disclosure had had a startling effect upon the people generally and that it was calculated to affect adversely the standing of Pakistan in the eyes of foreign nations. As has been observed by my Lord the Chief Justice, it has even been suggested that this circumstance is of sufficient importance to justify a change in the incumbency of the Prime Minister-ship of the country, an event, which no responsible citizen can view with complacency. There are enumerated in the judgment of the learned Judge a series of aspects of the case which he has described as "unfor tunate" and some, which he has distinguished by the expression "most unfortunate". It is right to lament these matters, for they clearly have a most damaging effect upon the prestige ‑and reputation of the country as a whole. Yet it is a sad reflection that these lamentations might have been completely avoided had the learned Judge borne in mind the provisions of section 124 Evidence Act, when he was examining Sardar Amanullah as the first Court witness called by himself. Sardar Amanullah should properly have appeared much later as a defence witness.

The thread of mischief started by Sardar Amanullah was greatly extended by the acceptance of Hakim Saif Ali as a volunteer witness by the Court. Such a witness is responsible to neither party. Unless one or the other party questions him in advance it is not known what‑ information he may possess, and which side is likely to be b9nefited by it. The introduction of such a 'witness, particularly one whose evidence has proved to be of the startling nature given by Hakim Saif Ali, into the case, without previous investigation of his knowledge concerning relevant facts is fraught with grave dangers, and not least to the dispensation of justice. In examining such a witness, the Court converts itself from being an instrument of justice, into an investigating agency. As is apparent in the present case, the learned Judge was compelled to call no less than five other Court witnesses for the, purpose of verifying matters arising out of the statement of Hakim Saif Ali. Three other persons were called as Court witnesses who had been given up by the defence, and these with Hakim Saif Ali and Sardar Amanullah make up a formidable list of ten Court witnesses. The question of the effect produced upon the trial by the commencement of this investigation in the course of the trial will undoubtedly receive examination in the hearing of the appeal, which has been filed before the High Court by the two accused persons. I mention the matter here as being a second undesirable result of the acceptance of the volunteered evidence of Hakim Saif Ali, the first being the confusion which it created in the formulation and advancement of defences on behalf of the accused persons which I have already mentioned. It seems clear that while in other respects the evidence of Hakim Saif Ali impressed the learned Judge as being deliberately false, yet his statement regarding his visit to the Foreign Minister left a very deep impression upon his mind of the opposite kind. It is the foundation of numerous obser vations adverse to the appellant, in other portions of the judgment besides paragraphs 83 to 88. Thus, he came to the conclusion that the restrictions imposed upon Hakim Saif Ali by the Punjab Government must have been removed by Malik Firoz Khan Noon, when he became Chief Minister of the Punjab, although at the same time he observed that "as Malik Feroz Khan Noon is not a party to this case, it is not the province of this judgment to determine what part he took in the matter which is the subject of this trial" and for these reasons he declared that he would refrain from giving a finding on the contention . . . . . "that Malik Feroze Khan Noon and Hakim Saif Ali acted in concert in the matter". A little later in discussing the means by which foreign exchange was procured for obtaining the evidence of an American handwriting expert (Mr. Appel), who was not paid by the accused persons, the learned Judge made the following statement which is at least equivocal :

"If public money has really been paid to Mr. Appel, the action is open to more severe condemnation . . . . . . but as there is no proof on the record that the money paid to Mr. Appel was money of Pakistan and not that of the Prime Minister of that country, which according to public statements of people who ought to know is none too rich in dollars, I need say nothing more about the matter".

The suggestion that Mr. Appel could only have been paid either out of public funds or by the appellant is based on no evidence, and being of a most damaging nature, clearly should never have been made. Again, in paragraph 62, the learned Judge after finding that Hakim Saif Ali himself undertook the creation of the offending document, at Karachi on a date after the 28th August 1957, "either of his own accord or on the bidding of some one", which contained an obvious error, but as the opportune moment for the publication of the letter had arrived, namely the date upon which Mr. Gurmani was to relinquish charge as Governor, it was decided that it should be given to the Press on that date vie., 2nd September 1957, in its defective state, immediately proceeded to mention cert4in actions attributed to the appellant on the 2nd September 1957 and to emphasise the point by the suggestion that the appellant had knowledge of the existence of the document some three hours before he had seen the copy brought to him by Hakim Saif Ali. The effect of this finding is only slightly diminished by adding that since "Malik Feroze Khan Noon has not had an opportunity of giving his version I need not dilate on what appears in evidence against him".

The portion of the judgment, which we are directing should be expunged appears at the end of the judgment and represents the culmination of the suspicions gathered and the imputations made against Malik Firoz Khan Noon, in the earlier part of the judgment. Referring to the statement of Sardar Amanullah regarding the instructions he received from the appellant, the learned Judge proceeds to issue a condemnation of the action of the Foreign Office and the Information Department in giving the offending letter to the Press, the first because the matter did not pertain to foreign affairs, and the second because the publication amounted to "entering into party politics". Neither of these statements is relevant to the case and a little reflection will show that neither of these are correct. This very allegation had, as the judgment shows, been the subject of correspondence between the Foreign Office of Pakistan and the Government of India in 1953. The duties of the Information Department of a great Government such as the Government of Pakistan are not confined to the publication of gazette notifications or whether statistics and the like. It is one of the recognised methods of influencing or sensing public opinion to give publicity to certain matters, which will produce the desired results. It is a technique of government, which is well recognized, and in a country with a political government, it is no hardship for political leaders who may be out of office, to be subjected to treatment of the kind indicated above. This is not of course to say that to publish false imputations regarding a political person who is out of office is to be accepted as normal procedure for a political Government in power. In this judgment it is not proper that I should say anything regarding the imputation in question, as to its true or falsity. At this point I am concerned only with the mischief of the learned Judge's observations against the Information Department. In the same passage he has gone on to declare in words of unmistakable emphasis that Sardar Amanullah acted in fear of the consequences of disobedience and concluded by saying that he considered it unfortunate that Sardar Amanullah was used as an agent to procure publication of the letter, and thus ran the risk of being himself prosecuted. Here, the learned Judge has clearly prejudged one of the matters raised by himself as a question of great importance requiring decision by some other Court.

There is then a reference to the Political Secretary of Malik Feroze Khan Noon who was mentioned on certain occasions in the evidence. He was spared on the ground that he might not be a public servant, but the implications arising out of the mention of this person is unmistakable. The learned Judge proceeds then to make certain observations against the Attorney‑General of Pakistan whose fault was that he was present in Court on two days, vie., the day when Hakim Saif Ali appeared and offered himself as h witness, and the day on which his first statement was recorded. One of the accused persons Mr. Suleri had also made a statement involving the Attorney‑General, and as to this the remark of the learned Judge made earlier in the judgment (to which he has referred in paragraph 83) is that it would have been better for the Attorney‑General to have openly come forward to defend the accused: When it is borne in mind that at a previous hearing the name of the Prime Minister of Pakistan had been brought into the case through the mouth of the Court witness Sardar Amanullah, there need be no surprise in finding a Law Officer of the State watching the proceedings, for it is a matter of great public importance that the reputation of the Prime Minister of a country should be safeguarded. The learnt J Judge himself has made observations in the most emphatic term leading to this conclusion. Therefore, the inference from the presence of the Attorney‑General in the Court need not have been that suggested in the judgment viz., that by so doing "the Attorney‑General had lent his moral support to Hakim Saif Ali". The Attorney‑General could have attended the proceedings as of right, and in proper discharge of his duties. As regards the statement of the accused Z. A. Suleri, it is indeed surprising to find a statement by an accused person, which had not been put to the Attorney‑General, being made the basis of an observation, suggesting that the Attorney‑General had been working for the benefit of the accused persons behind the scenes. The gravity of the mischief, to those officers of the State, who had no opportunity to offer explanations, is clear.

In paragraph 84, after reproducing an encomium received from the President of Pakistan by Mr. Gurmani when he relinquished office the learned Judge remarked upon the action of the appellant in publishing, less than a week later, the offending letter, without even troubling to verify its genuineness. This statement is founded, in the words of the judgment, "on the evidence on the record" and it is added "if Sardar Amanullah and Hakim Saif Ali are to be believed". There is clearly a prejudgment here on an issue, which at a later stage the learned Judge required the complainant to place before either a Criminal Court or a Civil Court for decision. Certain observations are contained iii paragraph 85 which lead to the conclusion that publication of the offending letter, which he attributes to Malik Feroze Khan Noon in paragraph 84, was intended to weaken the case of Pakistan with regard to Kashmir. It is probably difficult to imagine q statement which in the eyes of the public of Pakistan can be more damaging to the appellant, in his capacity of Prime Minister and Foreign Minister. It is unsupported by evidence, and rests only upon a process of reasoning whose soundness is clearly open to question. In the next paragraph No. 86 a categorical statement is made that the "most unfortunate aspect of the case" is that the name of the appellant should have been associated with the publication of the offending letter. By itself this statement is perhaps not open to exception but it is followed immediately by mention of the connection of Malik Feroze Khan Noon with the earlier, allegation in 1955 by Sheikh Sadiq Hasan against Mr. Gurmani, to the same effect, and in this connection it is mentioned that the case of the complainant was that Malik Feroze Khan Noon had inspired that statement. Immediately after, the learned Judge observed that "on the second occasion when the defamatory matter is published in the form of a letter which I have held to be a forged document, Malik Feroze Khan Noon, according to the statement of Sardar Amanullah and Hakim Saif Ali, took quite an active part in its publication". The inferences arising out of these observations are so clear and strong that the caution that they must not be treated as a finding can have little or no effect.

In paragraph 87 the learned Judge has made a direction of a most extraordinary kind. He has placed the complainant under a "duty to take proceedings against Malik Feroze Khan either in a Criminal Court or a Civil Court". He gives as his reasons, the natural arguments that such a proceeding is necessary to enable a finding to be given as to whether Malik Feroze Khan Noon was a party to the publication, and secondly that such a proceeding will afford an opportunity to him "to prove to the world that his name was brought into the case without any justification". But these observations are immediately followed by words of extreme condemnation namely, that if in such a trial Malik Feroze Khan Noon is convicted, the whole world would condemn him and he will have very few to support him, yet the learned Judge thought that it was in the interest of the country that a verdict "one way or the other" should be obtained. The closing words detract hardly, if at all, from the prejudgment contained in the passage immediately proceeding. Explaining that he had declined to implead Malik Feroze Khan Noon as a party (presumably as an accused person) in the case, although an application for that purpose had been made, because he was hoping that the evidence of Sardar Amanullah would be refuted, the learne.1 Judge proceeded to say that as a result of the present case, suspicions attach ‑to Malik Feroze Khan Noon, and it was desirable in the interest of the country that these should be set at rest.

In the last of the offending paragraphs there is again pre judgment of the qiost serious nature. Prefacing his observations by the remark that in common with the vast majority of the public he would be happy if the proceedings of which he had advised the institution in words carrying little less emphasis than an order, were to end in acquittal, the learned Judge declared that "if what Sardar Amanullah and Hakim Saif Ali stated before me is accepted, then, I would prefer a verdict of guilty to that of not guilty". This statement assumes a simple resolution of the question what evidence,) Sardar Amanullah and Hakim Saif Ali would give, if they were called as witnesses, what the nature and quality. of their evidence might be held to be, and what defences might be raised. The learned Judge did not appa rently appreciate the nature of the duty that he was imposing upon the complainant, on the strength of the degree of belief, which he himself had apparently placed on the evidence of Sardar Amanullah and a small portion of the evidence of Hakim Saif Ali. It is highly unusual to find a person being obliged by anyone, least of all by a Court, to assume the role of a complainant under the Criminal Procedure Code. It is always for the complainant himself to estimate the risks, which he might be running in launching a prosecution of the kind, which Mr. Gurmani has been virtually directed to institute by the Court. One point which to my mind stands out very clearly (and I say so subject to any decision which a competent Court might reach if seized of the case contemplated by the learned Judge) is that both Sardar Amanullah and Hakim Saif Ali might be thought to be involved in the very crime which the learned Judge desires should be the subject of a proper trial. This aspect of the matter appears not to have been noticed by the learned Judge. It seems however, that he was conscious of the possibility that the case might fail and has given expression to this feeling by suggesting that if. "in spite of doing what Sardar Amanullah and Hakim Saif Alt stated before me that he did" Malik Feroze Khan Noon should be held not guilty this could only be upon one basis namely that he had believed what Hakim Saif Ali told him wholly and without question, thus exhibiting a quality of mind which in the learned Judge's opinion, wholly unfitted him to be Prime Minister of Pakistan. A more defective conclusion can hardly be conceived. It should form a classic instance of the danger involved in prejudgment, even by persons of long experience of Courts and cases. But the venom of the matter lies in this, that basing on evidence not yet given and a wholly inadequate estimation of the possibilities, a scathing condemnation is issued, which is calculated to do extreme damage to a person, the maintenance of whose reputation is of great public importance, and who had had no opportunity to offer any explanation.

I have endeavoured in the above analysis to estimate the observations of the learned Judge from as detached and objective a view as is possible for me. I find it impossible to come to any other conclusion than this, namely, that the learned Judge errone ously allowed to be introduced into a simple case, a thread of enquiry on a subject which was entirely outside the purview of the pleadings placed before him by the parties, and was led into the investigation of these matters in such wise that he eventually found for himself the devil of the piece in a person who was entirely outside the case, and whom he accordingly proceeded to condemn and castigate in terms which show considerable absence of restraint. The observations which he has allowed himself to make in paragraphs 83 to 88 of his judgment clearly belong to a category which is foreign to the conception of a proper judgment in a case like that of which the learned Judge was seized. The exclusion of this matter is made the more con venient by the fact that the paragraphs are placed in sequence, and are expressly stated to relate to matters outside those, which were before the Court for decision. The decisions on the latter questions are before the High Court in an appeal preferred by Z. A. Suleri and Umar Qureshi, who have both been convicted. I see no reason to apprehend that by the exclusion of para-graghs 83 to 88 any embarrassment will be caused to the proper functioning of the High Court in that appeal. The substance of these paragraphs affords ample justification for their expunction on the principles laid down in a number of authorities, the princi ple of which have been mentioned in the judgment of my Lord the Chief Justice.

If I could have convinced myself that the High Court sitting in appeal could have dealt with the judgment of the learned Judge in the manner desired by the appellant, I would have been most reluctant to use for the purpose the jurisdiction which is vested in this Court by Article 160, viz, to grant leave to appeal against the judgment to the appellant, despite the fact that he was not a party to the case, and to exercise this Court's power to issue c such directions as may be necessary for doing complete justice in the matter, as provided by Article 163 (3). But I am clearly of the opinion basing upon the examination of the law and the authorities contained in the judgment of my Lord the Chief Justice, that there is no jurisdiction in the High Court, sitting as a Court of appeal under section 411‑A Criminal Procedure Code to make any orders other than those specified in section 423 of that Code. I cannot interpret section 561‑A as conferring the necessary power, and respectfully concur in the opinion;, expressed by the Privy Council that the powers conferred b 'y this section do not override the prohibition contained inl section 369 of the Code in relation to the High Court. While on the subject of section 561‑A, however, I would like to add a remark concerning the availability of this section to the High Courts for the purpose of expunging matter from the records of inferior Courts. The decisions given upon this point by the; various Courts in India prior to the Partition exhibit soma difference of opinion. A few of these Courts have held that such power cannot be derived even from section 561‑A, despite the fact that in the Statement of Objects and Reasons with which the Bill was published which eventually led to the enactment of section 561‑A, it was expressly stated that the intention was to make it clear that High Courts had this power as one of their inherent powers. It does not seem, however, that the High Courts in Pakistan have at any time, since the enactment of section 561‑A, deviated from the view that it enables them in proper cases to amend the records of inferior Courts by directing the exclusion of matters therefrom. Since the question of the existence of this power does not arise for decision in the present case, I consider that it would be sufficient for me here to say that I would be prepared to uphold the view which the High Courts in Pakistan have been taking, if for no other reason, than on the basis of an interpretation and course of practice which has held the field for a long period of years. As regards the power of the High Court. in respect of its own records, an argu ment might perhaps be put forward that as a Court of Record, the High Court has power to amend its own records in proper cases, and that it might exercise this power in the present case. To this, I consider that it is a sufficient answer to say that the power of the High Court in respect of a judgment such as that under appeal in the present case, has now by the enactment of section 411‑A of the Criminal Procedure Code been reduced and confined to those powers which an appellate Court may exercise under section 423 of the Code. It is quite clear that powers of the appellate Courts under section 423 aforesaid do not extend to the taking of action such as that sought in the present appeal,

AMIRUDIN AHMAD, J

‑ I agree with my Lord the Chief Justice. The offending remarks are an independent portion of, the judgment and have no direct bearing on the conviction or1t the sentence and the appellate Court in dealing with the appeal of the accused persons will have no difficulty on account of the expunction of the offensive remarks.

S. A. RAHMAN, J

.‑I have had the advantage of seeing in advance, the judgment proposed to be delivered in this case by my Lord the Chief Justice. I respectfully agree with the reasoning‑ and the conclusions recorded in that judgment, but in view of the importance of the case, I feel tempted to make a few observations, on some points arising therein, without reiterating the facts and circumstances leading up to the petition for special leave to appeal.

Article 160 of the Constitution in terms confers powers of the widest amplitude on this Court. The generality of the words used therein appears to be inconsistent with any limitations as to the person who may ask for special leave under that Article, the: stage of the proceedings giving rise to grievance or the scope of the relief sought. The person seeking redress need not be a party to the proceedings that culminated in the impugned "judgment decree, order or sentence" provided, of course, he satisfies this Court either that he has a genuine cause to feel aggrieved by what has been said or done by‑the relevant Court or Tribunal or that he has an interest in moving the Court and the case falls within the principle enunciated by this Court in Muhammad Ashiq v. Allah Bakhsh (P L D 1957 S C (Pak.) 293). Even Mr. Bashir Ahmad, the amicus curiae in this case, did not rule out the possibility of special leave being granted in an appropriate case to an aggrieved stranger. As has been so aptly pointed out by my Lord the Chief Justice, this admission cuts across his plea that the prayer for special leave must touch the operative part of the judgment or order assailed, for such a plea would exclude all but parties to the relevant proceedings from the ambit of this Court's jurisdiction under Article 160. The omission of the word "final" from before the word "order" in this Article, as contrasted with its presence in Articles 157, 158 and 159 of the Constitution, suggests further that the remedy provided by Art. 160 may be available even where the order in question is not invested with finality. Again, the question to what part of the judgment or order the relief sought is confined, is essentially not one of jurisdiction. Prima facie the observations to which, exception has been taken in the instant case; are highly pre judicial to the character and reputation of the petitioner and I have no doubt that this Court would have jurisdiction to grant special leave to appeal, in these circumstances. The Federal Court, whose powers have devolved on this Court expunged suo motu certain passages from a judgment of the Lahore High Court vide Fazal Elahi v. Crown (P L D 1953 F C 35).

The next question that calls for consideration is whether the High Court is possessed of power, on motion or otherwise, to expunge the offensive remarks in question from the judgment of the learned Judge who tried the defamation case giving rise to this appeal, in exercise of the extraordinary original criminal jurisdiction of that Court. If the answer to this question be in the affirmative, it may be more appropriate to leave the matter to be dealt with by the High Court in the first instance. The point has exercised my mind considerably, but I see no escape from the conclusion reached by my Lord the Chief Justice in this respect. High Courts in the Indo‑Pak sub‑continent have at times expunged passages from judgments of subordinate Courts but the controversy about the source of the relevant jurisdiction appears to have been left in a ‑more or less nebulous state. It was observed by the Federal Court in Fazal Elahi v. Crown in passing, that the Indian High Courts had uniformly regarded the power to expunge as being a necessary concomitant of their appellate jurisdiction. It is now conceded by learned counsel appearing before us in the present case that this view is not sound as it would obviously involve similar power being vested in appellate Courts inferior to the High Court a power, which has never so far been claimed or recognised. There are also difficulties in accepting the view that the power to expunge is included in the revisional jurisdiction of superior Courts of record, as the powers exercisable under the Code of Criminal Procedure are assimilated to those of the appellate Court, though perhaps the field of revision in respect of subject‑matter may b somewhat wider than in appellate jurisdiction. The distinction between a power to reverse, alter or differ from a finding dr sentence and the power to expunge offending passages from a judgment or order must not be lost sight of. Because of these difficulties perhaps, the view has generally prevailed that the High Court's power in this behalf is part and parcel of the inherent powers of the Court recognised by S. 561‑A of the Code of Criminal Procedure, inserted therein in 1923. It may be that the source of that power is the right of superintendence possessed by the High Court viz=a‑viz subordinate Courts.

Whatever may be the correct position, in this respect, the question that confronts us ‑for decision is not whether the High Court can expunge parts of a judgment delivered by a subordinate Court but whether an appellate bench of the High Court by virtue of powers conferred by S. 411‑A of the Code, can exercise similar powers to excise offending portions of a judgment of a learned Judge or Judges of a High Court sitting on the original criminal side of that Court. The limited right of appeal conferred b S. 411‑A of the Code, per .re cannot obviously invest the appellate bench with this drastic power. The analogy of subordination of inferior Courts for purposes of revisional jurisdiction would also be inapt in the case of a single Judge o the High Court viz‑a‑viz the appellate bench of that very Court. The original criminal jurisdiction and the appellate jurisdiction are but elements of the comprehensive jurisdiction of one Court viz. the High Court and clearly therefore the notion of super in tendency by a superior Court over an inferior Court would not be apposite in such a situation. Is the High Court then, as a superior Court of record, in a position to alter or amend its own records by' way of expunction

I regret I have not been able to lay my hands .on any direct authority bearing on this point. In the case of Fazal Elahi v. Crown, however, a passage is cited from the Ball's case (1911) A C 47) per Lord Alverstone C. J., which may provide some assistance. In that case, the acquittal of a brother and sister on a charge of incest, by the Court of Criminal Appeal was reversed in appeal by the House of Lords and' the cause was remitted back to the Court of Criminal Appeal, "to do therein as shall be just and consistent" with the judgment of the House of Lords. Lord Alverstone, C. J. of the Court of Criminal Appeal, while overruling the contentions raised by the defendants against the Court's jurisdiction to dis place the previous judgment of acquittal, observed as follows :

"The appeal to the House of Lords has succeeded, and the order of this Court has been reversed with the natural conse quence that the conviction ought to be restored. In then circumstances the proper procedure has been adopted, namely, of applying to this Court, which is a Court of record, to give effect to the order of the House of Lords by restoring the conviction and dismissing the original appeal, and to expunge from the record the order of this Court quashing the conviction and directing a judgment and verdict of acquittal to be entered * * * '" * *".

In the end the learned Chief Justice made an order "directing the record to be amended, in accordance with the decision of the House of Lords". Is it permissible to argue by way of analogy that our High Courts possess a similar power in respect of their records In a like situation arising in this country the Court whose decision had been reversed would have merely placed a copy of the judgment of the superior Court on the record of the case, without ordering expunction of the previous judgment. The answer to the question posed, in my opinion, should be in the negative, in the face of the express provision contained in S. 369 of the Code of Criminal Procedure. The power in question could have been described as an inherent power of a Court of record but it will not be available when the legislature has enacted law in the contrary sense in the shape of S. 369, Criminal Procedure Code. The judgment of the learned single Judge in the instant case is as much a judgment of the High Court as would be the judgment of the appellate bench of that Court and both judgments would be subject to the limitations imposed by S. 369 of the Code in respect of alteration or review though the appellate judgment may possibly render the judgment appealed against ineffective. Only a clerical error can be corrected under that section and no substantive change in any part of the judgment would be permissible after it had been signed. This view has the support of the Privy Council judgments in Lala Jairam Das v. King Emperor (72 1 A 120),' and Kumar Singh Chhahajar v. King Emperor (73 1 A 199) and the assumption to the contrary underlying the decision of the Chief Court of the Punjab in Malik Umar 11ayat Khan (6 1 C 611) and that of the High Court o1 Lahore in Crown v. Makhan Lal (48 Cr. L J 660) rest on no solid foundation 'the petitioner, it follows, would be unable to have recourse to the High Court for his remedy as S. 411‑A of the Code does not contemplate an appeal by a stranger to the proceedings.

On the merits of the appeal, it would be sufficient too say that the offending remarks in the impunged judgment, can be severed from it without injuring the integrity, were unnecessary for the disposal of the case, condemned the petitioner unheard and are surcharged with dangerous potentialities. They not only cast very damaging reflections on the petitioner who was neither a party nor a witness in the proceedings leading up to the judgment in question, but would tend to prejudice his fair trial if at all that opportunity for vindication is made available to hits by the complainant in the defamation case. It is, therefore meet and proper that the passages complained of should be expunged.

A. H. Paragraphs expunged

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