1. This is an application under section 561-A, Cr. P. C. To expunge the remarks made by the Additional City Magistrate, Karachi, against the applicant in his judgment while acquitting Shamim Ahmed Khan.
2. On 17th March 1966 When an amount of Rs. 10,000 was found short giving rise to the present proceedings the applicant was working as Branch Manager Empress Market, Saddar; of National Bank of Pakistan. Shamim Ahmed Khan who was prosecuted .Was working as Head Cashier in the same branch. According to the practice the cash is kept in the safe having to keys ; one remains with the ,Manager and the, other with the Head Cashier. Then there is one key safe in which both the keys are kept. The key-safe has also got to keys; one remains with the Manager and the other with the Head Cashier. When the cash transactions are closed and the amount is to be kept in the safe the key box is opened by the Manager as well as Head Cashier, both being present, and the keys of the cash sate are taken out and then the cash safe is opened and the cash is deposited there. After depositing the amount the reverse process is repeated. In the morning by resorting to the same process the cash is taken out by the Manager and the Head Cashier and it is counted and then the cash is delivered to the Head Cashier who passes on the money to the Assistant Cashier for disbursement.
3. On 17th March 1966 an amount of Rs. 1,13,000 was taken out from the safe by the Manager and Shamim Ahmed Khan. It was counted by both of them and after it was found to be correct, entry was made in the vault- register noting down the details of the currency notes by Shamim Ahmed Khan and the money was then taken away by Shamim Ahmed Khan in order to be delivered to Mr. Anisuddin, Assistant Cashier for disbursement. However, after 20/25 minutes Shamim Ahmed Khan reported to the applicant that- while delivering money to Mr. Anisuddin the cash was found short by Rs. 10,000. On this the applicant went to the cash department and checked the cash and found Rs. 10,000 less. The safe was again opened at the suggestion of Mr. Shamim Ahmed Khan but there was no trace of that amount. The applicant thereafter directed Shamim Ahmed Khan as well as Anisuddin to make the report in writing and they complied. The information regarding this incident was communicated to the Controller of Branches. Shamim Ahmed Khan and Anisuddin were asked to make good the loss, Shamim Ahmed Khan made a request in writing for the grant of the to deposit the amount. However, on 18th March 1966 the applicant received instructions from the Head Office to report the matter to the Police. Con--sequently a report was lodged. The police after usual investigation challaned Shamim Ahmed Khan.
4. At the trial several witnesses including the applicant and Anisuddin were examined. The statement of the applicant was recorded. In his statement he admitted that he had taken out Rs. 1,13,000 in presence of the applicant from the safe and had made entries in the vault register. He further pleaded that he delivered the entire amount to Anisuddin in presence of the applicant immediately after the money was taken out. But after about half an hour Anisuddin reported shortage of Rs. 10,000. So he immediately reported the matter to the applicant who asked him to give the report in writing which he did. He further stated that he had been implicated at the instance of police and the applicant.
5. The learned Magistrate, on the assessment of the evidence, observed that proper, procedure was not followed and no register was maintained to show as to how much amount was delivered by the Head Cashier to the Assistant Cashier' and there was also lack of vigilance and supervision and, therefore, a doubt was created for which the applicant was' mainly responsible. On the basis of this assessm ent he acquitted Shamim Ahmed Khan. The learned Magistrate had relied upon the remarks of his predecessor in respect of the conduct of the applicant when his evidence was recorded. At to places the learned Magistrate had made a note about the demeanour of the applicant, at one place he noted that the demeanour was not satisfactory and at another place he noted that the demeanour was doubtful. Unfortunately the learned Magistrate did not give the reasons for holding this view in order to assess `the justification of these remarks. However, I have gone through the evidence of the witnesses at the relevant places and I do not find that the demeanour of the applicant could be said to be unsatisfactory or doubtful. The last answer which was followed by the first remark is that he did not say to Anisuddin that he had received orders from the Head Office to report the matter to the Police but he had obtained permission from the higher officers to decide the shortage of Rs. 10,000 immediately. I have not been able to understand how it could be said that the demeanour of the applicant by making this reply was not satisfactory.
6. At the second place the answer of the applicant to a question put in cross-examination was that he did not remember if he gave the leather bag, purse and papers of `the accused to the Police or not. In respect of this answer the remark could not be said to be justified. The incident had taken place in March 1966 while the evidence of the applicant was recorded in May 1967 i.e. After 14 months. Thus after a lapse of such a long the it could not be possible for the witness to remember the various details. Moreover, the delivery of the leather bag, purse and the papers of the accused to the police was not material for the purpose of this case so that it could be said that the applicant ought to have remembered those facts The learned Magistrate also took exception to some state--ments made by the applicant which were in conflict with the evidence of Anisuddin. The applicant had denied in cross--examination that Anisuddin had left before 10 p.m. While Shamim Ahmed Khan and other staff remained in the bank up to 3 p. m. And he sent his own car to bring Anisuddin after l0 p.m. Whereas Anisuddin stated that he had left the bank at 9-30 p .m. When the other staff was present in the bank and he was sent for by the applicant at. 11 p.m. This denial of the applicant was irrelevant for the purpose of this case, and moreover, -on account of lapse of the he could not be expected to remember all the various details as has already been observed.
7. The other circumstance which was relied upon by the learned Magistrate in coming to the conclusion that the entire affair appeared to be fishy was based on the statement of Anisuddin who stated that both the keys, of the cash safe were with Shamim Ahmed Khan who opened the safe in the absence of the applicant and in his (Anisuddin) presence. Shamim Ahmed Khan had taken out only Rs. 1,03,000 from the cash safe and not Rs. 1,13,000 and further that the vault register was not lying in the cash safe I must say that the learned Magistrate completely disregarded the statement of Shamim Ahmed Khan who was facing the trial. Shamim Ahmed Khan in his statement recorded under section 342, Cr. P. C. Stated in unmistakable terms that he had taken out Rs. 1,13,000 in presence of the applicant and he had actually delivered this amount to Anisuddin. Shamim Ahmed Khan further stated that Anisuddin in order to save his own skin had instigated the witnesses to depose against him. The Anisuddin clearly told a lie and his statement in this respect could not be accepted. It may be further noted that not only there is the statement of Shamim Ahmed Khan that e had taken out Rs. 1,13,000 from the safe but the entries in the vault register giving the details of the cash and the denomination of the currency notes were actually made by him. Thus it leaves no room for doubt that an amount of Rs. 1,13,000 was taken out from the cash safe and this amount remained is possession of Shamim A Ahmed Khan and was intended to be delivered to Anisuddin. The applicant could not be held responsible for the shortage which subsequently occurred, nor he could be said to be guilty of lack of vigilance and supervision. It is not understood how the learned Magistrate proceeded to remark that the applicant had not given the satisfactory account of the incident when his evidence, was recorded.
8. The learned Magistrate also observed some conflict appearing in the evidence of the applicant.
9. The applicant at first stated in cross-examination that after locking the cash safe he and Shamim Ahmed Khan went to the key' safe but immediately he corrected himself and stated that after locking the cash safe tie went to his table, and took his seat and after 5 minutes Shamim Ahmed Khan came to him and then they both went to the key safe to keep the keys of the cash safe inside the key safe. This conflict is also of no material consequence in view of the admission of Shamim Ahmed Khan that an amount of Rs. 1,13,000 was taken out of the cash safe and-after he made the entries he took the amount to Anisuddin.
10. Again the learned Magistrate criticised the conduct of the applicant in not closing the door of the bank hall after the shortage was reported to him. In this connection the learned. Magistrate did not consider the consequences, which-would have resulted from closing the bank. If this had been done certainly, it would have shaken the confidence of the customers and adversely affected the bank. Moreover, no bank could be closed without the permission of the State Bank. In this connec-- tion reference may be made to the relevant provisions of the State Bank of Pakistan Act XXXIII of 1956.
11. The criticism of the learned Magistrate in respect of the conduct of the applicant that he had violated the Bank rules and failed to exercise proper supervision was mainly based upon the' evidence of Anisuddin who had stated that the applicant handed over the key of the safe to Shamim Ahmed Khan and was not present when the safe was opened and the cash, was taken out. Anisuddin admitted his own presence at, that the. If the evidence of Anisuddin is worthy of any credence, the presence or, the absence of the applicant hardly made any difference as according to Anisuddin the bundle of currency notes of Rs. 10 each amounting to Rs. 10,000 was not in the safe when the cash was taken out and counted in his presence.
12. The learned Magistrate' misconstrued the evidence and reached the conclusion on irrelevant considerations in utter dis--regard of the statement of Shamim Ahmed Khan who was facing the trial. The position of the applicant was vindicated by the entries made in the vault register. The learned Magistrate failed to take into consideration that the attitude of Anisuddin toward the applicant could not be favourable on account of what had happened on the discovery of the shortage. According to his own showing e was suspected, threatened and forced to give an undertaking in writing to make the contribution. Later he was detained at the Police Station from 18 to 21 and again called at the police station for 2 or 3 days. He was also placed under suspension and re-instated after six months. Thus the learned Magistrate clearly fell into error in condemning the applicant on the basis of the evidence of Anisuddin.
13. The learned Magistrate also observed that the applicant suppressed some facts but the perusal of the evidence of the applicant does not bear out this imputation.
14. The effect of the aforesaid discussion is that the learned Magistrate deplored the conduct of the applicant on evidence which was not dependable and, therefore, the criticism is not sustainable.
15. Since the impugned passages in the judgment have reacted unfavourably against the applicant, it serves to provide justification to consider the expunction of those passages. But before an engrafting can be done it is necessary that the remarks should be separable from the decision and are irrelevant to its findings. The observations which are made on a justifiable issue and-which ate part of the fabric of the judgment cannot be mutilated. In such a case only a clarification can be made, which would virtually serve the purpose for which the relief is sought. There ate several authorities propounding this view but I will confine myself to to of them: One is in the case of Kartarchand Shankerdas v. Emperor (AIR 1938 Sind 103). : It was observed as under: "Now it is a serious matter for this Court to expunge remarks from a Magistrate's judgment or order.
16. This Court will interfere to expunge remarks which are libellous and irrelevant. But they form at integral part of the judgment or its argument, and if they are inseparable, this Court will not interfere and mutilate a judgment so that it reads dis-jointly or incoherently, nor it will interfere merely because the Court may have passed remarks adverse to a witness provided the judgment shows there is some basis for them, however inadequate may appear this basis to the higher Court."
17. This principle is, also indicated by the Supreme Court in. The case of Sujauddin v. State (1969 P Cr. L J 136) in the following observation: "As the rent ark 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 Magistrate's personal appreciation, of the facts and circumstances of the case in the relation to the appellant's conduct there in and secondly, because these remarks cannot be deleted from the judgment without "mutilating the judgment as a whole and breaking its integrity."
18. On reading the judgment, it is clear that the impugned passage s form an integral part of the arguments resulting in the acquittal of Shamim Ahmed Khan and, therefore, the isolation or detachment of those passages will affect the whole fabric of the judgment and not only will destroy its efficacy but, will make no sense. So the only course which can be adopted in such a case is to make suitable observation in order to neutralise the adverse e effect. In the present case it will suffice to say that appropriate observations have, already been made while dealing with the remarks arid it has been made sufficiently clear that the conclusion reached by the learned Magistrate was based on- irrelevant considerations. Consequently the remarks were not justifiable.
19. It is, therefore, not necessary to offer any further comments.'
20. With these observations the application for the expunction of the remarks stands disposed of. th st