ABDUL QAYYUM Versus THE STATE
1. Abdul Qayyum, Senior Store-Keeper and Muhammad Ikram, Junior Store-Keeper of the WAPDA C.R.B.C. were prosecuted under section 409, P.P.C. reads with section 5(2) of the Prevention of Corruption Act registered against them vide F.I.R. No.8 of 1984 of F.I.A., Sub-Circle, D.I. Khan on the allegation that they allegedly misappropriated butter oil (1100 Kgs), D.S. Milk (1500 Kgs) and Sugar (150 Kgs) from the store of the World Food Programme CRBC Colony, D.I. Khan. It was alleged that on 27-11-1983 Mr. Azizullah Khan, Executive Engineer, C.R.B.C., Project, WAPDA, D.I. Khan on the information conveyed to him by Amanullah, Security Guard, intercepted truck No. DNA 3905 on Bannu-D.I. Khan Road and found the same loaded with World Food Commodities alleged to have been taken from the World Food Programme Warehouse located in the WAPDA CRBC, WAPDA Colony, D.I. Khan without any authority. Zahoor Khan, truck driver on interrogation disclosed that the truck was hired by Abdul Qayyum, Senior Store-Keeper for Rs.
150. The matter was referred to Major Muhammad Ilyas, Deputy Director (C&I) WAPDA to enquire the matter, and on receipt of the report of the said Enquiry Officer, endorsed by the Chief Engineer, C.R.B.C. Project WAPDA, a case was registered and the two' accused were ultimately challenged to the Court of the Special Judge (Central) Anti-Corruption, NWFP, Peshawar, who by his order dated 20-6-1987, on the application of the defence counsel acquitted both the accused under section 265-K, Cr.P.C, observing that:-
2. "The accused Abdul Qayyum and Muhammad Ikram both are acquitted when extended to them doubt benefit though both being not absolutely innocent."
3. The observations of the learned` trial Judge, "though both being not absolutely innocent" obliged Abdul Qayyum to come in the instant criminal miscellaneous petition under section 561-A, Cr.P.C, praying that the remarks being uncalled for may be expugned.
2. Arguments of the learned counsel for the petitioner and the learned Assistant Advocate-General on behalf of the State respondent have been heard and record of the case has been examined.
3. Under section 265-K, Cr.P.C. the trial Court is possessed with the powers of acquitting the accused standing trial before it at any stage of the case if in its opinion there is no probability of the accused being convicted of any offence. Similarly where the trial judge during the process of the trial comes to the conclusion that there is no evidence worth the name against the accused he may acquit the accused. Keeping in mind the acquittal of accused under section 265-K, Cr.P.C., it can well be inferred that the evidence produced was not sufficient to warrant conviction of the accused and that there was no probability of the success of the prosecution case. In such a situation the impugned remarks which were not even necessary to the conclusion reached at by the trial Judge nor necessary to his arguments and amounts to militate seriously against the petitioner who is a Government servant and which would definitely affect his future career were not called for.
4. In Muhammad Ayoob Khuhro applicant versus Emperor reported as A.I.R. (33) 1946 Sind 121 it was held that:-
5. "In considering applications for expunging, remarks from judgments of lower Courts two principles of cardinal importance have to be observed. One is that the proper freedom and independence of Judges must be maintained; they must be allowed a proper and full latitude in the expression of their opinion without fear or favour on the evidence before them. On the other hand, an accused, when acquitted, is entitled to the full benefit of that acquittal and the judgment ought not to be inconsistent in this sense that while the Judge acquits an accused of the offences charged, he uses words which detract from the force of the acquittal. If a Judge exculpates he must not inculpate. After all a man is presumed to be innocent until he is proved guilty; that presumption is not weakened when he is acquitted but is on the .contrary confirmed.
6. Mindful of the fact that the petitioner-accused was acquitted of the charges levelled against him I would advert to' the word acquittal what it implies.
7. In Corpus Juris Secundum Part 1-A at page 285 the word acquittal has been defined to mean as:- "discharged, released from a debt, duty, obligation, charge, or suspicion of guilt; or set free or judicially discharged from an accusation."
8. In Black's Law Dictionary 5th Edition the word acquittal has been given the meaning:-
9. "The legal and formal certification of the innocence of a person who has been charged with crime; deliverance or setting free a person from a charge of guilt; finding of not guilty. Also, one legally acquitted by a judgment rendered otherwise than in pursuance of a verdict, as where he is discharged by a Magistrate because of the insufficiency of the evidence, or the indictment is dismissed by the Court for non-prosecution. Or, it may occur even though the question of guilt or innocence has never been submitted to a jury, as where a defendant, having been held under an indictment on information, is discharged because not brought to trial within the time provided by statute."
10. In Encyclopaedia Britannica Volume-1, 15th edition at page 67 acquittal, in criminal law has been defined as:-
11. "Acknowledgment by the Court of the innocence of the defendant or defendants. Such a judgment may be made by a jury in trial or by a Judge who rules that there is insufficient evidence either for conviction or for further proceedings. An acquittal removes all guilt in law: An acquittal "in fact" occurs when a jury finds the defendant not guilty.
12. In Wharton's Law Lexicon- acquittal is defined as "quie tus" which means as:-
13. "Freed or acquitted; discharged .of all further liability."
14. The reproduction of the definition or the word "acquittal" would clearly show that once a person charged with certain offences by judicial order is acquitted the verdict means a formal certification of the innocence of such person and once the learned trial Judge recorded the verdict of acquittal in favour of the accused-petitioner he certified his innocence and in that context remarking that he was not absolutely innocent was to suspect his own conclusion. It has been the consistent view of the superior Courts that disparaging remarks in a judgment should only be made where any hesitation or reluctance in making them would impede the ends of justice. It is incumbent upon the Presiding Officer of a Court that 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.
15. In Muhammad Fatal Shah appellant versus Muhammad Asghar and others respondents reported as A I R (37) 1950 Lahore 66 it was observed that:-
16. "It is against 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, "
17. Once the learned trial Judge came to a definite conclusion that the prosecution case was not capable of gining success and during the pendency of the trial was so firm in his conclusion that obliged him to pronounce verdict of acquittal in favour of the accused-petitioner by extending him the benefit of doubt it was totally irrelevant for him to comment in the way as he did in the present case. In other words on one hand he declared the accused-petitioner innocent and on the other hand not absolutely innocent which phenomenon in my view is altogether a new creation, neither the spirit of the criminal law nor supported by any authority of the superior Courts. If the learned trial Judge was of the view that the accused deserved the condemning remarks, the same should have been based on some evidence which is not coming forth on the record of the present case. The accused-petitioner being a Government servant has been extremely damaged by they impugned remarks which amount to condemnation without hearing.
4. Section 561-A, Cr.P.C. gives ample powers to the High Court to expunge those remarks from the judgments which are capable of being deleted without impairing integrity of the judgment. Consequently without impairing integrity of the judgment, I accept the instant criminal miscellaneous petition and expunge the concluding words of the trial Judge "though both being not absolutely innocent" and further direct that these remarks should be treated to have been deleted from the impugned judgment.
18. M.Y.H/605/P Petition allowed.