1969 P Cr (PLP)

SAJJAD AHMAD, J.‑

The appellant Shuja‑ud‑Din, who was a Head Cashier in the City Branch of the National Bank of Pakistan, Rawalpindi, was tried along with certain other officials of the Bank on charges of cheating and forgery under sections 420 and 468, P. P. C. by Mr. Mahmood Shah Hamdani, a Section 30 Magistrate of Rawalpindi. The prosecution case was that a sum of Rs. 10,000 had been withdrawn, from the account maintained in the Bank by one Muhammad Abdullah on two loose cheques fraudulently by the appellant and his co‑accused including Ishaq Elahi, the Manager of the Bark and that Muhammad Abdullah aforesaid discovered this fraud when a cheque for Rs. 1,500 was issued by him on the 26th of January 1961, in favour of the American Mission High School, Rawalpindi which was dishonoured because there was no money left in the Bank to the credit of the drawer. Muhammad Abdullah had not drawn any other cheque on the Bank since the deposit of Rs. 10,000 initially made by him. The learned trial Magistrate acquitted the appellant but in the course of his judgment made the following observations:-- "I am also of the opinion that in view of the gross mis conduct of Ishaq Elahi and Shuja‑ud‑Din accused they should be proceeded against departmentally and they are not of such conduct which is worthy of a Bank official and they should not be retained in the Bank staff any more." The appellant moved a petition in the High Court under section 561‑A of the Cr. P. C., for the expunction of these remarks on the ground that they were irrelevant and unwarranted in view of his acquittal of the charges levelled against hire. A learned Single Judge in the High Court has dismissed this application by a one sentence order saying that he did not find any ground for expunction of remarks from the judgment of the learned Magistrate. The appellant then moved an application to this Court for leave to appeal which was granted to consider his contentions that :‑ (i) The observation of the learned Magistrate were without support in the evidence, (ii) They were beyond the jurisdiction vested in the Magistrate, and (iii) They were extremely prejudicial to the petitioner's employment with the Bank which was satisfied with his conduct. It may be stated here that in another part of the judgment, the learned Magistrate has stated that he was constrained to hold that Ishaq Elahi and Shuja‑ud‑Din were directly responsible for issuing these loose cheques and both these officials were directly responsible for making payment on these cheques and they have committed gross negligence and misconduct in the whole affair. These remarks have not been included for expunction in the application moved by the appellant under section 561 :A of the Cr. P. C. Mr. M. Zaman, the learned counsel for the appellant has stated at the bar that in a departmental inquiry against the appellant that has already taken place, the appellant has been exonerated and that the Bank is otherwise satisfied with his conduct in the Bank during his long period of service of well over 15 years. After hearing the learned counsel for the appellant and Mr. Bajwa for the State, we are of the opinion that the observation in the impugned remarks that the appellant should not be retained in the Bank staff any more, is irrelevant which should not have been made. This remark, apart from being gratuitous loses all significance if, as stated by the learned counsel for the appellant, the departmental inquiry has cleared him of his misconduct and the Bank is otherwise satisfied with his performance. As the remark is entirely uncalled for and can be separated from the judgment without, in any manner, impairing its integrity, we would order its expunction. This remark will, therefore, not form part of the judgment. As for the other portion of the impugned remarks, wherein the learned Magistrate has expressed his opinion about the gross misconduct of the appellant, we cannot justifiably order their expunction ; firstly, because they reflect the learned trial Magistrate's personal appreciation of the facts and circumstances of the case in relation to the appellant's conduct therein and secondly, because these remarks cannot be deleted from the judgment without mutilating the judgment as a whole and breaking its integrity. We order accordingly. Order accordingly.