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Criminal Miscellaneous No.1643 of 1986, decided on 2nd March, 1987.

---S.561-A--Expunction of remarks--Remarks sought to be expunged from judgment of Sessions Judge, not separable and if expunged it would leave judgment mutilated and incomplete--Expunction of such remarks declined, in circumstances.

Aftab Anwar Jaleel v. The State P L D 1971 Kar.156; P L D Lah.34; Rashid Hassan Siddiqui v. The State 1971 P Cr. L J A I R 1938 Sind 103 and 1969 P Cr. L J 136 ref.

---S.561-A--Expunction of remarks--Remarks sought to be expunged not forming an integral part of judgment and same could be easily separated from rest of judgment--Such remarks expunged.

Aftab Anwar Jaleel v. The State P L D 1971 Kar.156; P L D 1950 Lah. 34; Rashid Hassan Siddiqui v. The State 1971 P Cr.L J 1207; A I R 1938 Sind 103 and 1969 P Cr. L J 136 ref.

Gul Zaman Khan for Applicant.

Date of hearing: 21st January, 1987.

The applicant has invoked the jurisdiction of this Court under section 561-A, Cr.P.C. to expunge the remarks made against him by the learned Second Additional Sessions Judge, Karachi while acquitting accused Muhammad Sadiq in the case.

Briefly stated, the facts of the case are that the applicant on 2-9-1984 at about 4.15 p.m., while he was on patrol duty, conducted search of one Muhammad Sadiq and recovered from his possession 500 grams of heroin packed in a plastic bag. The same was cured in presence of mashirs Haji Ata Muhammad and Jamil and a memo of recovery was prepared by him at the spot. Thereafter, ten drams of heroin powder were taken as sample from the plastic bag and sent to the chemical examiner for analysis and his report. The property was taken to the police station where the applicant lodged F.I.R. against the accused on behalf of the State. The accused was consequently sent before the learned Sessions Court to stand his trial under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979.

The prosecution examined the applicant and P.W. Haji Atta Muhammad as investigating officer in the case and mashir recovery of the contraband respectively. The statement of the used was also taken under section 342 of the Criminal Procedure Code. The accused also examined himself under section 340(2), Cr.P.C. and one witness namely Rahim Bux was also examined by him in his defence.

The plea taken by the accused in his defence was that .e was a resident of Punjab and had come to Karachi alongwith one Abdul Aziz to recover money allegedly given by him to one recruiting agent. According to him when he pressed the recruiting agent for return of the money he in collusion with the police got him falsely implicated in the case. He was then detained by the police on 1-9-1984 and one A.S.I. from police station Baghdadi contacted the management of the hotel wherein the accused was staying and collected balance amount of Rs.73/- lying with the hotel management as balance of the hotel room charges deposited by the accused with the Manager of the hotel and on the next day i.e. on 2-9-1984 the police registered false F.I.R. against the accused.

The learned Additional Sessions Judge on assessment of the evidence found that the case registered against the accused was false and consequently he ordered his acquittal. However, while ordering the acquittal of the accused, the learned Additional Session Judge made the following remarks in his judgment against the applicant.

(a) "Thus from this statement of the mashir of recovery it is crystal clear that the property allegedly secured by the I.O. was in a plastic bag which had some mark of identification which was not produced in Court with some ulterior motive and some other packet containing 240 grams of H.P. was produced which the witness rightly declined to identify."

(b) "In this respect, I may mention here that the 1.0. Sub Inspector Abdul Rasheed is not a truthful witness. He is a man who is capable of making lies and the statement of such a liar should not be accepted as correct without the independent corroborative evidence in Hudood cases, in which it is the duty of Judge/Qazi to scrutinise the evidence from all the angles keeping in view the Quranic injunctions and to strictly follow the path of Holy Prophet (Peace be upon him) and his Caliphs."

(c) "This admission of the witness establishes that he is a Qazib (liar) and his statement should not be accepted as correct under any circumstances particularly in Hudood cases, as already observed by me above."

(d) "If he was a truthful witness and actual recovery was made by him from the possession of accused then there was no fun in telling a lie before this Court. He would have come with the clear statement and would have admitted the implication of the mashir in many other cases. In that case, I would have accepted his statement as correct but by suppressing these facts this witness has proved himself a person who is capable of even making lies to believe them like a truth. Due to this behaviour I must say that he is unfit to perform the job in the police department, as he has involved an innocent person in a false heinous crime, for the reasons which I will now give here below."

(e) "All these material irregularities and illegalities have created a doubt in my mind regarding the false implication of one innocent person but I must say that. this is not a case of doubt but this is a case of fraud, manipulation and misappropriation. In my humble opinion nothing was secured from the possession of the accused and that this innocent gentleman has been falsely implicated in this case by a liar (kazib) who has misused his powers and the jurisdiction vested in him by law."

The circumstances which appear -to have led the learned Additional Sessions Judge to make these remarks against the applicant are that first of all the learned Judge got the packet alleged to be containing the contraband weighed in the Court and the same was found to weigh 240 grams instead of 500. Besides that the learned Additional Sessions Judge found that the only mashir examined by the prosecution namely Haji Atta Muhammad had only partially supported its case as he was not certain in regard to the identity of .the packet. Under such circumstances the learned Additional Sessions Judge held that recovery of the contraband from the possession of the accused had not been established. Another factor which appears to have contributed towards the misfortune of the applicant was that during his examination in the Court, first he did not agree with the plea raised by the defence that P.W. Atta Muhammad had acted as mashir in innumerable cases registered at the same police station but after being confronted with certified copies of certain orders of this Court wherein such observations had been made the applicant readily conceded to the same. Exception also was taken by the learned Additional Sessions Judge to the fact that although from the evidence it had been established that the accused had left Hotel Al-Majeed where he had been staying and had been detained by the police on 1-9-1984 but the incident was shown by the prosecution to have occurred on 2-9-1984. The learned Additional Sessions Judge therefore, concluded that the accused had been falsely implicated in the case by the applicant..

The contention of Mr.Gul Zaman, learned counsel for the applicant has been that the adverse remarks made against the applicant in the judgment of the learned Additional Sessions Judge were not warranted by the circumstances of the case as it had not beer established that the case had been falsely registered against the accused. According to him, the evidence nowhere suggested that the packet containing heroin had been weighed in front of the mashirs at the time of its recovery. Furthermore it was sent to the Court malkhana after its seizure by the police. As regards the applicant's denial of the fact that Haji Atta Muhammad was the. stock witness of the police, the contention of the accused has been that mere denial of knowledge in respect of a certain fact by the applicant did not justify the disparaging remarks. Moreover the witness was only expressing his opinion. Lastly it was argued that if the accused in the case is acquitted on the strength of the plea raised by the defence, it should not necessarily lead to the inference that the case is false.

The facts of the case as enumerated above leave no doubt that the manner in which the case was handled by the applicant was far from satisfactory. It would not be out of place to point out that although this Court has power to expunge adverse or disparaging remarks from the judgments of subordinate Courts but such power has to be exercised with great circumspection and caution because the subordinate Courts should have ample freedom to express their opinion while delivering judgments. However the criticism should be subject to certain limitations as was held by a Single Judge of .his Court in Aftab Anwar Jaleel v. The State P L D 1971 Kar.156: First of all, no person should be condemned unheard: second, in making his criticism the magistrate or the judge should not- travel outside the record; and third, the criticism should be made with sobriety and a due sense of responsibility. In P L D 1950 Lah.34, Munir, C.J. (as he then was) while referring to the necessity of making of disparaging remarks in a judgment, observed that the same should only be made where any hesitation or reluctance in making them would impede the ends of justice. While referring to the effect of such remarks on the mind of the person against whom they are made, the learned Judge further observed that "they lower him in the public estimate 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." The cardinal principle of criminal justice is well known: that the prosecution is required to establish its case against the accused beyond a shadow of doubt. Therefore if the accused is acquitted keeping in view this fundamental principle that by itself should not be sufficient to attract the adverse remarks Rashid Hassan Siddiqui v. The State 1971 P Cr.L J 1207, a learned Single Judge of this Court while relying on two earlier decisions reported in A I R 1938 Sind 103 and 1969 P Cr.L J 136 held that the High Court while exercising jurisdiction under section 561-A, Cr.P.C. could expunge remarks from the judgment of the lower Court if the same were not justified. However according to the learned Judge, before an engrafting can be done it was necessary that the remarks should be separable from the decision and should be irrelevant to its findings. It was further observed in the judgment that observations which are made on justifiable issues and which are part of the fabric of the judgment cannot be separated. Consequently, in spite of the shortcomings after considering all the circumstances of the case, I am of the view that the adverse remarks against the applicant in the judgment of the learned Additional Sessions Judge are not justified. However, when it comes to their removal from the judgment of the learned Additional Sessions Judge then with the exception of remarks reproduced in para (b) above, the rest of them cannot be separated from the judgment because if they are expunged from the judgment they would leave it mutilated and incomplete. Therefore, the observations made above in respect of the adverse remarks should suffice under the circumstances of the case.

Consequently, since the passage referred to in paragraph (b) above does not form an integral part of the judgment and the same can be easily separated from the rest of the judgment, it is directed that the same shall be expunged therefrom. The rest of the remarks cannot be expunged.

S.G.D./A-82/K Order accordingly.

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