ABDUL QAYYUM KHAN vs DIRECTOR GENERAL NATIONAL ACCOUNTABILITY

ABDUL LAT1F KHAN, J.--Through instant petition, petitioner seeks Constitutional jurisdiction of this Court, praying that:- "On acceptance of this petition, the order dated 15-3-2014 of learned respondent No,4 may be declared illegal, without lawful authority and of no legal effect and proceedings pending before learned respondent No,4 may be quashed and the petitioner may kindly be acquitted of the charges levelled against him."

2. As per prosecution case, reference No,4 of 2007 was filed against petitioner on 23-1-2007 wherein 52 witnesses were examined by learned trial Court. During trial petitioner filed application under section 265-K, Cr.P.C. For his acquittal which was dismissed by the learned trial Court vide order dated 15-3-2014, however it was also ordered therein that addition of Clauses (iv) and (v) of Section 9 of the National Accountability Ordinance, 1999 be made in the charge already framed and explained to the petitioner, bringing the addition in the notice of petitioner and asked the prosecution to positively conclude its evidence as quickly as possible. Feeling aggrieved from the said order, the instant Constitutional petition has been preferred by the petitioner.

Arguments heard and record perused.

3. Perusal of file reveals that the petitioner was arrested by NAB authorities on the charges of his involvement in the corruption and corrupt practices during his service in C&W Department N.-W.F.P.

Who accumulated movable/immovable properties and other assets in his own name and in the name of his dependents/binamidars which were disproportionate to his known sources of income.

52 witnesses have been examined during trial however a few witnesses are yet to be examined therefore while dismissing the application under section 265-K, Cr.P.C. By the trial Court, it was not required for trial Court to discuss evidence of every witness as the trial is yet to complete and if the learned trial Court could have discussed the evidence in disposal of application under section 265- K, Cr.P.C., then it would amount to disclosure of his opinion which could prejudice the case of either side. Sufficient evidence has been recorded and only a few witnesses are yet to be examined and after conclusion of prosecution evidence, the trial Court would disclose his opinion in the shape of conviction or acquittal of petitioner who did not disclose it in the referred application which has rightly done so by the learned trial Court.

4. So far as contention of learned defence counsel regarding addition of clauses (iv) & (v) of Section 9 in the charge already framed is concerned, the same is misplaced, as under section 227, Cr.P.C., any Court may alter or add to any charge at any time before judgment is pronounced.

Every such alteration or addition shall be read and explained to the accused. Charge as a matter of fact is precise formulation of specific accusation made against a person who is entitled to know its nature at the earlier stage. Purpose of the charge is to tell an accused as precisely and concisely as possible, the matter on which he is charged and must convey to him with sufficient clearance and certainty what material prosecution intends to produce against him of which he would have to clear himself. Errors committed in stating either the offences or particulars required to be stated in the charge or omission in that behalf cannot be treated as material unless the accused is in fact misled by such errors or omission and further it also occasioned a failure of justice. In the absence of prejudice to the accused, neither the trial can be held illegal nor conviction can be set aside in presence of curing provisions contained in sections 227 and 537, Cr.P.C. Where a charge is properly framed but it is found after taking evidence that it is groundless, Court is not prevented from striking out such charge. Charge can be amended or altered or added at any time before judgment is pronounced. Court can always alter the charge at any point of time either on an application or on its own. Since the prosecution evidence has not yet completed and accused is also yet to be examined under section 342, Cr.P.C., and thereafter judgment was to be announced so the learned trial Court has rightly passed order for addition of clauses (iv) & (v) of Section 9 of NAB Ordinance who under section 227, Cr.P.C. May alter or add to any charge at any time before judgment is pronounced and has rightly directed that such alteration shall be read and explained to the accused. Besides, the petitioner failed to point out any illegality or irregularity in the impugned order which needs no interference by this Court.

For the aforesaid reasons, this petition is without substance hence dismissed.