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Criminal Revision No. 41 of 1984, heard on 13th April, 1986.

‑‑‑Ss. 439 & 561‑A‑‑Penal Code (XLV of 1860), S. 409‑‑Prevention of Corruption Act (II of 1947), S. 5(2)‑‑Expunction of disparaging remarks‑‑Special Judge Anti‑Corruption while acquitting accused in case making disparaging remarks in his judgment against petitioner who was neither a party nor a witness in case which was being tried by him‑ Adverse remarks ordered to be expunged.

--‑‑‑Ss. 439 & 561‑A‑‑Adverse remarks, expunction of‑‑Before a Judge decides to make adverse remarks against a person who is not a party to proceedings before him, he should adheres to principle of natural justice of audi alteram partem and should in all fairness give that man an opportunity of being heard before condemning him‑‑Best course in such a case would be that such person should be summoned and examined as a witness and relevant circumstances should be brought to his notice and he should be called upon or at least given an opportunity to explain same‑‑Without following such a course no superior Court would feel inclined to refuse expunction of such remarks.

Malik Firoz Khan Noon v. State P L D 1958 S C (Pak.) 333; Director, Pak Flotilla Co. Ltd. (S.J. Shostery) v. Abdus Salam and another P L D 1963 Dacca 157; Ali Dino Mirza, Deputy Superintendent of Police, Dadu v. The State P L D 1963 (W,.P.) Lah. 436 and Ch. Muhammad Ashraf v. The State 1975 P Cr. L J 632 rel.

Samiullah for Petitioner.

Sharfuddin for the State.

Date of hearing: 13th April, 1986.

This revision petition under section 439, Cr.P.C. read with section 561‑A, Cr.P.C. arises in the following circumstances:

The Deputy Director, Agriculture Supplies, S.A.S.O., Nawabshah has sent a report against the Storeman Qurban Ali for misappropriating fertilizer of the value of Rs.81,674 after registration of F.I.R., the Anti‑Corruption authorities took up investigation. During the investigation it came to the conclusion that there was sufficient evidence against the said Storeman Qurban Ali and challaned him before the Special Judge, Sukkur under section 409, P.P.C. read with 5(2) of the Prevention of Corruption Act, 1947. After a full-fledged trial wherein a number of witnesses were examined. The learned Special Judge, Anti‑Corruption came to the conclusion that the case against the Storeman Qurban Ali was not proved to his satisfaction. He, therefore, found him not guilty and acquitted him of the above charge.

Before parting with the judgment, the learned Special Judge made the following observations: ‑

"Syed Saleh Muhammad Shah failed to observe the rules with the result that misappropriation of huge amount occurred. As the record was not checked and verified by the D.A.S.O. as admitted by the D.A.S.O in his statement. It shows that he was well informed of the misappropriation and proves his collaboration with other staff in misappropriation of S.A.S.O., stocks."

It may be pointed out that neither Saleh Muhammad Shah was examined as a witness nor he was an accused in the above case which was only against the Storeman Qurban Ali. Naturally, therefore, he had no opportunity to explain the circumstances which may have appeared against him from evidence that has come on record, during the course of trial of Storeman Qurban Ali.

The main contention advanced on behalf of the petitioner is that the impugned observations in the judgment of the learned Special. Judge Anti‑Corruption were wholly unnecessary for the disposal of the said case and do not in any way form such an integral part of the judgment as to be incapable of separation from the relevant portions thereof or to affect its validity in any manner. It was further contended by the learned counsel for the petitioner and rightly so that the learned Special Judge ought not to have made these disparaging remarks against the petitioner who was neither a party nor a witness in this case. I find myself in full agreement with the contention of the learned counsel for the petitioner. The law on the point is quite clear. The leading case on this point in our country is that of Malik Firoz Khan Noon v. State reported in P L D 1958 S C (Pak.) 333. In the said case the Honourable Judges of the Supreme Court held as follows:‑

"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 emphasised 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.

It is again a rule, as ancient as the law itself and based on common sense and fair-play, that when a Judge decides to condemn a man, whether a party or witness, the facts on which condemnation is intended to be based must 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. Perhaps who are attributed ignorminous or improper conduct in judicial determinations, though they were neither parties nor witnesses in the case, have, therefore, 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."

Relying upon the above decision of the Supreme Court the Dacca High Court in case of Director, Pak Flotilla Co. Ltd. (S.J. Shostery) v. Abdus Salam and another reported in P L D 1963 Dacca 157 made the following observations:‑--

"Applying these principles in the present case, it seems to us that so far, at any rate, as the last remarks quoted above which almost amounts to a finding that the Pak Flotilla Company had manufactured the documents, Exhs. 1 and 2 must, in our opinion, be expunged, for neither the Pak Flotilla Company nor any Director of the Pak Flotilla Company was either a party to the proceeding before the learned Judge nor a witness in the case. If the learned Judge had any reason to think that any of the Directors of the Pak Flotilla Company was really the person at the back of the prosecution launched, there was nothing, in our view, to prevent the Court from examining the said person and giving him an opportunity to explain his position, without doing so, the learned. Additional Sessions Judge should not, in our opinion, have indulged in condemning such person unheard."

In the present case it seems to us that so far, at any, rate, as the last remark quoted above, which almost amounts to a finding that the Pak Flotilla Company had manufactured the documents Exhs. 1 and 2 must, in our opinion, be expunged, for neither the Pak Flotilla Company nor any Director of the Pak Flotilla Company was either a party to the proceeding before the learned Judge nor a witness in the case. If the learned Judge had any reason to think that any of the Directors of the Pak Flotilla Company was really the person at the back of the launched, there was nothing, in our view to prevent the Court from examining the said person and giving him an opportunity to explain his position, without doing so the learned Additional Sessions Judge should not, in our opinion, have indulged in condemning such person unheard.

The next ruling was given by our own High Court in a case of Ali Dino Mirza, Deputy Superintendent of Police, Dadu v. The State reported in P L D 1963 (W.P.) 436 wherein it was held as under:‑--

"I can quite see that the temptation to make these remarks in the circumstances of the case must have been great to the learned Additional Sessions Judge but it is particularly in such situation that the salutary principle has been laid down, namely, that the person against whom the remarks are intended to be made should have been before the Court, and where this is not so the remarks should normally be expunged."

In an other ruling Ch. Muhammad Ashraf v. The State reported in 1975 P Cr. L J 632, Muhammad Munir Farukee, J. of the Lahore High Court has also reiterated the above principle in the following unequivocal terms:‑

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

From the above ruling it is quite clear that before a Judge decides to make adverse remarks against a person who is not a party to the proceedings before him, he should adhere to the principle of natural justice of audi alteram partem and should in all fairness give that man an opportunity of being heard before condemning him. The best course in such a case would be as has been pointed out in the above rulings that such person may be summoned and examined as a witness and the relevant circumstances should be brought to his notice and he should be called upon or at least given an opportunity to explain the same. Without following such a course no superior Court will feel inclined to refuse expunction of such remarks.

For the reasons given above I order that the impugned adverse remarks appearing in the judgment of the learned Special Judge Anti‑Corruption be expunged, because the petitioner was neither a witness nor a party in the case against the Storeman which was being tried, by him.

M.Y.H. Petition accepted.

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