1. MUHAMMAD MUNIR, C. J.-This is an appeal, by special leave, from an order of the Chief Court of Sind dismissing the application of appellant Abdul Karim Butt for the expunging of certain remarks made against him by Mr. Leghari, Additional City Magistrate, Karachi, in his order dated 3rd December 1951.
2. On the basis of two separate transactions, Iftikhar Ali Beg, Salim H. Muhammad, Checko and Fernandes were prosecuted by the Pakistan Special Police Establishment on charges under sections 420/468/471 arid 120-B of the Pakistan Penal Code. A joint enquiry was held against them all by Mr. Leghari, who dis--charged Checko and Fernandes but committed Beg and Muhammad to the Court of Session on charges under sections 467, 476 and 120-B of the Pakistan Penal Code.
3. The remarks objected to were made in the order discharging Checko and Fernandes.
4. In the case arising out of the transaction with reference to which the remarks were made the appellant. As a witness for the prosecution, had given evidence that he was a sub-manager in the Muslim Commercial Bank Ltd., Karachi, which was an authorised dealer under the Foreign Exchange Regulation Act, VII of 1947; that on 26th July one Homi Agha, Manager of the Punjab National Bank, had introduced to him Beg as a merchant who needed sterling for goods that had been imported under an open general licence; that Beg had filled in an application for purchase of -- 33661/8/4 in order to pay for the goods which had been purchased in England and imported in Karachi by s. s. For Aklavik; that in support of this transaction lie had produced a bill of entry and an invoice which showed that the Pakistan Shipping Corporation, Karachi, had imported the goods in question which were to be delivered to the consignee. Fida Hussain Lokhandwala & Co., Karachi; and that he had repre--sented himself to be an agent of the consignee and as such had not only signed the application for purchase of the foreign exchange, but also the application for the draft on Westminster. Bank .Ltd., London. According to the prosecution, the truth of the matter was that all the particulars given in the application for the purchase of sterling were false and the bill of entry and the invoice forged documents because no goods of the description given in the application, the bill of entry and the invoice were ever imported in Karachi. Beg's defence was that he had neither signed the application for exchange, nor produced the bill-of entry or the' invoice nor applied for or received the draft against payment in the Pakistan Currency. That a huge fraud had been committed in consequence of which a large amount of exchange in sterling had been sanctioned by the State Bank of Pakistan was not disputed, and the fact that this fraud was successfully carried out because the appellant certified the parti--culars in the application for foreign exchange was proved. On the appellant's own showing, a deception had been practised on him by Beg, whereas the latter's defence was that he was not concerned in the fraud and that he had never signed any application for exchange, nor produced any bill of entry of invoice, nor signed any document to receive any draft on any Bank in England. The learned Magistrate discharged Fernandes who had sanctioned the exchange on behalf of the State Bank of Pakistan because he had acted in the ordinary routine of business and sanctioned the exchange on the strength of the certificate issued by the Commercial Bank Ltd. It was while dealing with this aspect of the case that the learned Magistrate made the following observations about the appellant "The person who was responsible for certifying these bills of entries as genuine was P. W. A. Karim Butt. He had not only forwarded these bills to the Bank but had an association with the cheats . . . . . . . . Mr. Abdul Nairn S. I. Who had investigated this case has honestly stated that the action of P. Ws. A.
5. Karim Butt was a dishonest one. He had submitted his papers to his superior who could have prosecuted A. Karim Butt as there was sufficient evidence against him for the purpose of putting him before the Court of law. Apart from him, the conduct of P. W. Yousuf Hussain Ali, Contractor is also not above suspicion. The Muslim Commercial Bank should not have sent the papers without proper scrutiny to the State Bank."
6. The order in which these remarks were made was passed on 3rd December 1951. Beg and Muhammad were tried by Mr. Justice Lari on the Original Side of the Chief Court. The Jury found them not guilty and, agreeing with the verdict, the learned Judge acquitted them both on 29th October 1953.
7. On the 20th June 1953, that is, before the conclusion of the trial Mr. W. G. M. Anderson, General Manager of the Muslim Commercial Bank Ltd., had addressed the following letter to the appellant:- "20th June 1953 Dear Mr. Butt, I had told you sometime ago that the Bank had received information about remarks of the Court regarding your society and that there were reasons for the Police to take action against you in connection with the case of Messrs Checko and Fernandez of the State Bank of Pakistan. The Board of Directors feel that it is not in the interest of the Bank that responsible officers of the Bank should be subject to such remarks by Courts of law and justice. As far as the Bank is concerned they have no reason to doubt your integrity but it is in your interest and as well as in the interest of the Bank that you should take steps, such as may be legally proper, to vindicate your honour. You will agree that this is necessary to remain with us as a responsible officer. The Board of Directors are prepared to allow you a reasonable time to do so.
8. Yours sincerely, (Sd.) W. G. M. Anderson, General Manager."
9. Consequently, on the 25th July 1953, the appellant made an application to the Chief Court of Sind praying that the aforesaid remarks against him be expunged under section 561(A) of the Code of Criminal Procedure. This application was dismissed by Hassanally Agha and Muhammad Bachal, JJ. On the 3rd September 1953, on the ground that it was made 12 months after the order complained of and that there was no reason for such inordinate delay.
10. The point sought to be made on behalf of the appellant by iris learned counsel is that the appellant was to give evidence at the trial of Beg and Muhammad, that he did not make the application earlier because he expected that there would be no occasion for him to make any such application if at the trial the Jury accepted his evidence and that he had to apply earlier in consequence of the direction contained in Mr. Anderson's letter mentioned above. It is therefore argued that the appellant's application should not have been dismissed on the ground of delay but should have been determined on the merits after hearing the appellant whose position in the Banks was jeopardized by the remarks in question.
11. As the appellant was compelled to make the application by Mr. Anderson's letter, it is necessary to observe here that the Muslim Commercial Bank Ltd. Was not bound by the remarks in question.
12. Such remarks do not amount to a conviction of theperson against whom they are made, and if on the basis of such remarks someone has to take action, it is his duty to application his own mind to the correctness or otherwise of such observations. In the present case, if the Board of Directors really thought that there were no reasons to doubt the integrity of the appellant, and that the appellant had acted without any negligence or dishonesty and in a manner in which a sub- manager should have acted in the circumstances, they could have said so and refused to take an action against the appellant. According to the facts which had been placed before the learned Magistrate, the appellant was either a fool or a knave because either he had been successful duped or had himself facilitated a fraudulent transaction. If the Board of Directors thought otherwise and believed that the appellant had acted in complete conformity with the practice that was observed by the Muslim Commercial Bank as an authorised dealer in certifying applications for foreign exchange they could have said so and were not bound by the remarks made by the Magistrate. It would then have been for the State Bank of Pakistan to consider whether the functions and duties of an authorised dealer in foreign exchange were rightly understood by the Muslim Commercial Bank and, if not, whether with such notion of the duties of an authorised dealer that Bank was permitted to continue dealing in foreign exchange. As it is, however, the Muslim Commercial Bank after giving a certificate to the appellant and exonerating him of all blame have required him to get their own view of the facts accepted by the Court or to go out of service of the Bank. The appellant has strenuously urged before us that his duty was confined merely to seeing whether the application for exchange was supported by documents purporting to be a bill of entry and the relevant invoice, and that therefore, he neither acted negligently nor with dishonesty, but in accordance with the practice that was followed by all Banks which were authorised dealers in foreign exchange. It is not necessary for us to say whether this practice was sound or unsound and if it was generally followed by all authorised dealers, whether it is a wonder that this country was left with any foreign exchange at all. The appellant's grievance is that his application has been dismissed without hearing him on the merits, and that he had been heard, he would have satisfied the Courts that the remarks in question were unjustified, and that the duty of an authorised dealer in foreign exchange was merely to see whether the application for such exchange was supported by certain documents, forged or genuine, and that no further enquiry or A investigation, such as examination of the relevant correspondence, or of the manner in which the goods were purchased and payment thereof made or promised to be made or the shipping documents received was necessary. If that be the correct position, then the appellant had a grievance in the matter and his application should have been heard on the merits. We therefore, set aside the order dismissing the application, and return the application to the Chief Court for disposal on the merits.