Ala ud Din Vs The State & another

JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

JUDICIAL DEPARTMENT

Eh.Cr.A.No.09-P/2017

“Alla-ud-Din Vs. The State & another”

JUDGMENT

Date of hearing 15.10.2019.

M/S Farmanullah Khattak & Umer Farooq, Advocate for the appellant.

Mr. Sohail Khan Jadoon, ADPG for the NAB.

AHMAD ALI, J.- Through the instant criminal appeal, filed under Section 32 of the National Accountability Ordinance, 1999, the appellant namely Allaudin has challenged the validity and legality of impugned Judgment dated 11.10.2017, rendered by the learned Judge, Accountability Court-I, Peshawar, vide which, the appellant has been convicted and sentenced to three years and embezzled amount i.e. Rs.1,67,08,809/-was imposed as fine on him and in case of non-payment of fine within three months, legal proceedings for its recovery within the scope of section 33-E of NAO, 1999 was ordered to be initiated against the present appellant. Benefit of Section 382-B Cr.P.C. was also extended to the appellant.

02.Allegations against the present accused-petitioner namely Alla-ud-Din, Ex- Postmaster Jandola, are that he in the league of one

co-accused namely Shah Nawaz (now died) has illegally withdrawn Rs.38.017 million from Public Exchequer under the garb of pension arrears and pocketed the same, during the period of 9 months i.e. from July 2010 to March 2011 by processing a total of 545 illegal, fake and bogus cases of arrears of pensions on the name of pensioners, out of which deceased accused issued 48 cheques whereas in 497 cases there were no authority letters. There were no pension arrears of the pensioners as they have already received their due pensions. He was booked in the case accordingly and was put to trial before the learned Accountability Court-I, Peshawar, which indicted the appellant and sentenced him as stated above.

03.The charge framed by the learned Trial Court reads as under:

“State Vs. Alla-ud-Din & another”

CHARGE.

I ----, Judge, Accountability Court No.1, Peshawar do hereby charge you accued (1) Alla-ud-Din S/O Imam-ud-Din, Ex Postmaster, Jandola Sub Post Office, Tank, R/O Basti Crore, near Wensam College, Dera Ismail Khan, and (2) Shah Nawaz S/O Saifullah, Ex Assistant Postmaster (Pension) Tank GPO R/O Mohallah Sheikhanwala, Sabir Abad, Tehsil & District Tank, as under: -

2.That you accused No.1 Alla-ud-Din, being Postmaster of single handed Post Office Jandola, during the relevant time was dealing with all types of matters at Jandola Post Office regarding payment of pensions. You knowingly and deliberately showed to have paid unauthorized, fake and bogus arrears to the pensions of Jandola and other Post Offices, which come under the jurisdiction of GPO Tank, and did not maintain proper

Ledger Book for the same. You showed these illegal payments in daily schedule (PSB-2), which was sent to Head Office Tank. You used to fill bogus deposit / withdrawal forms (PSB-7 & *) as the pensioners without their knowledge, you in league with co-accused No.2 Shah Nawaz, during the period of 09 months i.e. from July 2010 to March 2011, illegally withdrew Rs.38.017 million from public exchequer under the grab of pension arrears (all pension arrears were exceeding six months), and pocketed the same, and you both accused persons with malafide intention processed a total of 545 illegal, fake, and bogus cases of arears of pensions on the name of pensioners, out of which accused No.2 issued 48 illegal, and bogus authority letters, whereas in 497 cases there were no authority letters, and similarly, there were no pension arrears of the pensioners as they have already received their due pensions, and you with the connivance of accused No.2 caused a colossal loss amounting to Rs.37.017 million, and thus severely and jointly responsible for loss caused to the public exchequer, and thereby committed the offences of corruption and corrupt practices as defined in Section 9, punishable u/s 10 of National Accountability Ordinance, 1999 and schedule thereto, and within any cognizance.

3.That you accused No.2 Shah Nawaz, while posted as Assistant Postmaster Pension at GPO Tank during the relevant time willfully and deliberately failed to perform your duty, and intentionally did not point out, and objected the preparation of bogus documents, and ledgers sent by the accused No.1 Alla-ud-Din, rather you, in order to facilitate the offence of corruption, issued fake and bogus authority letters for issuance of arrears of pensions, and with the connivance of accused No.1 caused a colossal loss amounting to Rs.38.017 millions, thus severely and jointly responsible for loss caused to the public exchequer, and thereby committed the offence of corruption and corrupt practices as defined in Section 9, punishable u/s 10 of National Accountability Ordinance, 1999 and schedule thereto, and within my cognizance.

4.And I hereby direct that you be tried by this Court for the aforementioned offence.

Judge Accountability Court No.1, Peshawar Dated 05.09.2012.

04.At the very outset of the arguments, it transpired from the record that neither the Investigation Officer has recommended the exact provision/clause of Section 9 of the Ordinance, nor the Reference u/s 18(g) engendered such provision.

The learned Judge, Accountability Court-I, Peshawar while framing the charge has also shove

off to frame and did not charge the accused with exact Clause of Section 9 of the National Accountability Ordinance, 1999. On

recommendation of the Investigation Officer, the filing of Reference under Section 18(g) r/w 24 of the NAO, 1999, the learned Accountability Court while framing the charge without citation of the relevant Clause under which the charges are to be proved, the learned ADPG is unaware of as to which clause of Section 9 of the NAO would be applicable to the offence if at all committed by accused Alla-ud-Din. The learned Judge, Accountability Court-I, Peshawar has also committed an error by convicting the accused Alla- ud-Din, found guilty of the offence fall under Section 9 of the NAO, 1999, meaning thereby that neither the prosecutor nor even the learned Judge have taken care of to prosecute and convict accused Alla-ud-Din under the exact Clause of Section 9 of the National Accountability Ordinance, 1999. For ready reference section 9 of the National Accountability Ordinance, 1999 is reproduced as under: -

“9. Corruption and corrupt practices:

(a)A holder of a public office, or any other person, is said to commit or to have committed the offence of corruption and corrupt practices-

(i)if he accepts or obtains from any person or offers any gratification directly or indirectly, other than legal remuneration, as a motive or reward such as is specified in section 161 of the Pakistan Penal Code (Act XLV of 1860) for doing or for-bearing to do any official act, or for showing or for- bearing to show, in the exercise of his official functions, favour or disfavour to any person, or for rendering or attempting to render any service or disservice to any person; or

(ii)if he accepts or obtains or offers any valuable thing without consideration, or for a consideration which he knows to be inadequate, from any person whom he knows to have been, or likely to be, concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with his official functions or from any person whom he knows to be interested in or related to the person so concerned; or

(iii)if he dishonestly or fraudulently misappropriates or otherwise converts for his own use, or for the use of any other person, any property entrusted to him, or under his control, or wilfully allows any other person so to do; or

(iv)if he by corrupt dishonest, or illegal means, obtains or seeks to obtain for himself, or for his spouse and/or dependents or any other person, any property, valuable thing, or pecuniary advantage; or

(v)if he or any of his dependents or benamidars owns, possesses, or has [acquired] right or title in any [assets or holds irrevocable power of attorney in respect of any assets] or pecuniary resources disproportionate to his known sources of income, which he cannot reasonably account for; [or maintains a standard of living beyond that which is commensurate with his sources of income].

(vi)[If he] misuses his authority so as to gain any benefit or favour for himself or any other person, or renders or attempt render to do so, [or willfully fails to exercise his authority to prevent grant, or rendition of any undue benefit or favour which he could have prevented by exercising his authority].

(vii)if he issued any directive, policy, or any SRO (Statutory Regulatory Order) or any other order which grants or [attempts to grant] any [undue] concession or benefit in

any taxation matter or law or otherwise so as to benefit himself or any relative or associate or a benamidar, [or any other person] or

(viii)If he commits an offence of willful default; or

(ix)if he commits the offence of cheating as defined in Section 415 of the Pakistan Penal Code, 1860 (Act XLV of 1860), and thereby dishonestly induces members of the public- at-large to deliver any property including money or valuable security to any person; or (x) if he commits the offence of criminal breach of trust as defined in Section 405 of the Pakistan Penal Code, 1860 (Act XLV of 1860), with regard to any property including money or valuable security entrusted to him by members of the public–at-large;

(xi)if he, in his capacity as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust as provided in Section 409 of the Pakistan Penal Code, 1860 (Act SLV of 1860) in respect of property entrusted to him or over which he has dominion, and

(xii)if he aids, assists, abets attempts or acts in conspiracy with a person or a holder of public office accused of an offence as provided in clauses (i) to (xi).]

(b)All offences under this Order shall be non-bailable and notwithstanding anything contained in Ss. (426,491) 497, 498 and 561- A or any other provision of the Code, or any other law for the time being in force no Court, shall have jurisdiction to grant bail to any person accused of any offence under this Order.

(c)If after competing the investigation of an offence against a holder of public office or any other person, the Chairman NAB is satisfied that no prima facie case is made out against him and the case may be closed, the Chairman NAB shall refer the matter to a Court for approval and for the release of the accused, if in custody.]

(d)Omitted by Ord.CXXXIII of 2002 dated 23.11.2002”.

05.The purpose of charge is to tell the accused as precisely and concisely the nature of offence for which he is charged. Rational for laying down the detailed procedure for framing the charge is that the accused should know the nature of

accusation so that he may give a proper reply and is not misled by the vagueness in the said accusation.

Spectrum of charge should be such that all

eventualities and exigencies till the conclusion of trial can be made with the caution that no prejudice is caused to the accused.

FRAMING OF CHARGE AND ITS OBJECTS

“The whole object of framing a charge is to enable the defence to concentrate its attention on the case that he has to meet, and if the charge is framed in such a vague manner that the necessary ingredients of the offences with which the accused is convicted is not brought out in the charge, then the charge is defective.

In other words it can be said that the main object of framing of charge is to ensure that the accused had sufficient notice of the nature of accusation with which he was charged and secondly to make the Court concerned conscious regarding the real points in issue so that evidence could be confined to such points.

The charge must allege all facts which are essential factors of the offence in question. But no yardstick can be fixed qua the particulars which should be mentioned in the charge as it depends upon circumstances of each case.

Where a person is convicted of an offence and the Appellate Court is of the view that he has been misled in his, defence by the absence of a charge or by an error in the charge, appropriate action can be taken including remand of the case with direction for making suitable amendment in the charge.

Omissions in a charge cannot be regarded as material unless in terms of S.225 Cr.P.C it is shown by the accused that he has in fact been misled by such omissions or that there has been a failure of justice as a result of such omissions. Where the accused is not misled, a defect in the charge is not material. Where the accused is prejudiced, the defect is material”.

Reliance be placed on case titled “Dur Muhammad alias Duri and others Vs. The State” reported in 1994 MLD 1493, case titled “S.A.K Rehmani Vs.

The State” reported in 2005 SCMR 364, case titled

“Dilsher Vs. The State” reported in PLD 2012 Sindh 307, case titled “Sarwar Shakir Vs. The State” reported in 1992 MLD 1253 and case titled “Zeshan and another Vs. Muhammad Farooq and others” reported in 2016 YLR Note 2.

06.What has been discussed above, it is clear that charge against the accused was not properly framed and accused was misled by the charge, we therefore, left with no other option but to set aside the impugned Judgment of the learned Accountability Court and remand back the case to the learned Trial Court to deal with the trial proceedings, as proposed, of course, with consent of the parties and their learned counsel representing them whether to record fresh evidence or relying on the evidence already recorded after framing fresh specific charge.

ANNOUNCED.

JUDGE

JUDGE

DB

Hon’ble Mr. Justice Ikramullah Khan Hon’ble Mr. Justice Ahmad Ali

Himayat, PS