MUHAMMAD AZAM DURRANI Versus EHTESAB BUREAU

ORDER

SARDAR MUHAMMAD NAWAZ KHAN, J. --- This appeal against the conviction order of Ehtesab Court No.1 arises out of the following facts:---

2. A Crime No.330 of 1992 for offences under sections 467/468/471/406/409, P.P.C. read with section 5(2), P.C.A. was registered at Police Station, Muzaffarabad on 1-8-1992 on a report of complainant Muhammad Saeed Deputy Secretary Finance/Secretary Welfare Trust of the Government employees. It was alleged in the report, that convict appellant (hereinafter shall be called as appellant) Muhammad Azam Durrani resident of Upper Chatter, Muzaffarabad remained as Accountant of Benevolent Fund for about 11/12 years. In the month of May, 1989 when the welfare trust was bifurcated the appellant was appointed as Accountant of Benevolent Truss of non-gazetted employees.

He was entrusted with the job to maintain the record of the trust including receipts and payment etc. as such he was the custodian of the record. The complainant asked him to produce cash book and other record so that it could be checked but he evaded the matter consequently, the complainant while finding his conduct as doubtful directed him to present the list of income and expenditure on July 21, 1992. The appellant took along with him cash book. Cheque Books, Pass Books and TDR etc. to home so that the required list showing income and expenditure of the fund could be prepared. The appellant did not return to the office on very next day i.e. 22-7-1992 neither, he submitted the record rather he applied for one day leave. The complainant sent Ali Akbar Supervisor Petrol Pump to his home with the direction to ask the appellant to send the record so that the required list of income and expenditure could be prepared. However, Ali Akbar on his return from the house of the appellant told the complainant that the appellant was away from his house on account of illness of his son. The complainant upon this information visited the office of Benevolent Fund accompanied by Ch. Ghulam Haider President Non-gazetted Association and Raja Akhtar Hussain President, Teacher Association who were members of the Benevolent Trust. Ch. Ghulam Haider told the complainant that a sum of Rs.5,62,018 were embezzled per his information apart from some other misappropriation it the fund. The complainant checked the record in the office whereupon the Assistant of the office informed that the record was kept by the appellant in an Almirah. The complainant sealed the Almirah and also changed the lock of the room wherein the record was kept by the appellant. On the very next day, the Assistant Benevolent Fund, Abdur Rehman reported to the complainant that somebody attempted to break the lock of the room during night hours. This incident of breaking the lock was reported to the police. The appellant did not return to the office even on 23-7-1992 neither he submitted the record. Subsequently, the complainant accompanied by Ch. Ghulam Haider went to National Savings Centre at Muzaffarabad from where he tried to ascertain information about the facts and figures of the Accounts maintained in the said center. The officials of National Savings Centre promised to supply information about the Accounts of the trust on 24-7-1992. The complainant and his companion after having done so visited Habib Bank wherein the Accounts of the trust were opened. The Bank official also promised to furnish information about the Accounts of the trust on the same day. The complainant on the same date through a preliminary checking found that a Cheque No.07703625 in the sum of Rs.5,62,018 was issued by the Gazetted trust in the name of non-gazetted trust and the same was received in the Accounts of non-gazetted trust. Apart from this some other amount out of interest of the original amount in National Savings Centre which was to be deposited in the Habib Bank was found likely to be embezzled The complainant issued notice to the appellants to appear in order to explain the ex facie embezzlement of the amount however, he absented. His father and brother came at the house of the complainant at the evening and disclosed that the appellant was residing with his father-in-law at Brar-Kot on account of illness. The complainant asked them to handover the Cash Book, Pass Book, cheque books etc. and the keys of concerned Almirah. They promised to do so on 27-7-1992 if the appellant could not attend the office. On 27-7-1992, the complainant received information by the Assistant of the office through a telephonic message that the appellant had returned in the office. The complainant directed the Assistant to send him in the office of complainant consequently, the appellant appeared before him in his office. The complainant asked him to produce relevant record whereupon he informed that the same had been stolen by someone. On the said date, the offices were closed on account of strike however, the complainant asked the appellant to sit in his office and he himself attempted to contact other members of the trust but on account of strike they were not available. The complainant returned to his office and found the appellant missing. The keys of the relevant Almirah were lying on a table in the office of the complainant. The father and brother of the complainant contacted Raja Akhtar Hussain and Muhammad Bashir Dar to return the embezzled amount and asked to allow chance to do so. The complainant held a meeting with the members of the Board on 28-7-1992 and informed the Chairman of the Board about the entire situation. The Chairman directed the complainant to lodge a report with the police. The complainant while lodging the report with the police alleged that the appellant being employee of the trust embezzled the money by opening a false account in National Savings Centre. He fabricated the record after having put false and fake signatures of the Secretary of the Trust. He prepared false record through which he obtained embezzled amount. On this report, a case of above stated offences was registered against the appellant. After completion of investigation, the case was challaned before Anti-Corruption Judge at Muzaffarabad. The case while at the stage of evidence by the prosecution before Anti-Corruption Judge stood transferred to Ehtesab Court by operation of law: The Ehtesab Court proceeded with the case from the stage it was transferred to him and after conclusion of the trial he passed the impugned order by awarding 5 years R.I. for commission of offences under section 409, A.P.C. read with section 5(2), P.C.A. along with a fine in the sum of Rs.10,52,018 (embezzled amount). He was also awarded sentence of 5 years' R.I. for commission of offences under sections 467 and 471, A.P.C. Both the sentences, according to the impugned order, .are to be started simultaneously however, in case of default in payment of fine the appellant has to undergo with a further R.I. for one year. It is the aforesaid order, the legality and correctness of which is under challenge before this Court through the present appeal.

3. The learned counsel for the appellant challenged the validity of the impugned judgment on different grounds. Firstly, he assailed the indictment of the appellant under section 242, Cr.P.C. According to the learned counsel, the charge was defective because the particulars of offences allegedly committed by the appellant were missing in it and his conviction was not possible on the basis of such a uncertain charge. It was not carefully drawn up in accordance with the law as provided under sections 221 222, 223, Cr.P.C. The particulars of alleged offences were to be stated in the charge because the object of such statement is to enable the accused person to know the nature of charge he will have to meet during trial. Therefore, according to the learned counsel, by drawing such an uncertain and defective charge the appellant was misled on account of which he was prejudiced. The learned counsel further submitted that when the charge was of such a nature that could prejudice an accused person the law warranted to vitiate the trial. Secondly, the learned counsel attacked the nature and form of the statement of the appellant under section 342, Cr.P.C. and contended that while recording the statement under the aforesaid provision of law incriminating evidence appearing against him as deposed by the prosecution witnesses was not put to him so as to provide him an opportunity to explain it. Thus, according to the learned counsel, this omission on behalf of the Court being an illegality of serious nature warranted to undo the impugned order. On merits of the case, it was argued that the prosecution evidence itself suggested to say that Muhammad Sadiq Dar, the then D.D.O. of the Trust was equally responsible for embezzlement of the amount therefore, when he was let off without any legal justification the appellant also was entitled to acquittal by giving him benefit of doubt. The learned counsel during his arguments placed reliance on case-law like PLD 1985 SC (AJ&K) 51 and 2001 PCr.LJ 770 on the point of requirement of sections 242 and 342, Cr.P.C.

4. Conversely, the learned Chief Prosecutor Ehtesab Bureau while controverting the arguments on the side of the appellant submitted that all the requirements of section 221, Cr.P.C. were fulfilled while examining the appellant under section 242, Cr.P.C. He further argued that purpose of subsection (2) of section 222 is to make it to the accused clear that he should precisely know the case set up by the prosecution against him. He supported his argument on the strength of case-law like 1993 PCr.LJ 1230. According to him, sections 221 and 222 are subsidiary or ancillary to section 225 which lays down that during framing of charge no error or omission shall be material unless it has misled the accused. The requirement and stress is that the accused shall not be unaware of the nature of the case, the learned counsel maintained. During this argument, he placed reliance on 1991 SCMR 326 and 1992 PCr.LJ 2009. It was further argued that minor discrepancies while framing the charge shall not be taken into view by the Court as observed in 1990 MLD 2322, 2000 PCr.LJ 367 and 1997 PCr.LJ 1663.

5. While coming to the merits of the case, the learned Chief Prosecutor submitted that the case against the appellant was proved beyond any shadow of doubt and mer.- fact that Muhammad Sadiq Dar then D.D.O. was let off by the police did not warrant under law to exonerate the appellant of his criminal liability in the instant case of embezzlement.

6. The appellant is admittedly a public servant and he has been convicted for commission criminal breach of trust as he had the dominion over the property in the capacity of public servant. This allegation found place in the charge framed under section 242, Cr.P.C. He has also been convicted for forgery of valuable security and using the same as genuine document in order to embezzle the amount available in the trust of non-gazetted employees. The form and contents of charge under section 242, Cr.P.C. when seen carefully clearly indicated the nature of offences levelled against the appellant and that is why he replied that he did not commit the alleged offences. No error in stating either the offence or the particulars in the charge and no omission to state offences or those particulars should be regarded at any stage of the case as material unless the accused is in fact misled by such error or omission and it has occasioned in failure of justice. Reference may be had to section 225 of Cr.P.C. It is correct that the charge should be precise in its scope and particulars and it should be carefully drawn up in accordance with the offences disclosed. It is also correct that an accused cannot be convicted on an uncertain and defective charge. However, as stated earlier that under section 225 any error in stating either the offence or the particular required to be stated in the charge or the omission to state the offence or particulars is immaterial unless the accused is in fact misled by such error or omission and the same caused injustice to him. Here in this case, the appellant being custodian of property or in other words having dominion over the same put the forged and fake signatures of D.D.O. over the documents and used the same as genuine to obtain embezzled amount from the Accounts of the Trust in National Savings Centre. This all was put to him while framing the charge and he very much knew about the nature of the offence with which he was charged. Keeping in view the contents of the charge, the language used in it and reply given by the appellant it cannot be said that he was misled at the time of putting him on charge which resulted into failure of justice. He never raised any objection during the trial. He was being represented through a legal expert throughout the trial therefore, the arguments on the side of the appellant regarding misled of the accused is unfounded having no force in it. The general rule as provided under section 233, Cr.P.C. is that for every distinct offence of which a person is accused there shall be a separate charge and every such charge shall be tried separately however, there are certain exceptions to this general rule as provided under sections 222(2), 234, 235, 236 and 239, Cr.P.C. The afore-mentioned provisions of law are kept on statute book to prevent an accused from any embarrassment or difficulty in defending himself in a charge against him. A charge or joinder of charges if not found to have misled the accused does not warrant to vitiate the trial resulting into remand of the case for de novo trial or acquittal of accused person. The case in hand is a case covered by subsection (2) of section 222, Cr.P.C. wherein it is laid down that in case of criminal breach of trust and dishonest misappropriation of money, it is sufficient to specify the gross sum in respect of which the offence is alleged to have been committed and the dates between which the offences alleged to have been committed without specifying particulars, items or exact dates are not necessary. The charge framed for criminal breach of trust and misappropriation of money shall be a valid charge within the meaning of section 234, provided the time included between the first and the last of the such dates does not exceed one year. No doubt period of commission of offences for criminal breach of trust and misappropriation is not clear from the charge in this case but the fact remains that this omission is not fatal to the prosecution case in view of what has been laid down under section 225, Cr.P.C. neither it is found to have misled the appellant causing injustice to him. The appellant had been facing trial having full knowledge about the nature of allegation against him as it appears from his reply to the query of the trial Court and the fact of cross-examination to the prosecution witnesses. He is not an ordinarily man rather an educated person who had dominion over the property of the trust for couple of years knowing what he had done with the property and what was alleged against him therefore, he could easily defend himself and he attempted to do so.

7. The conclusion therefore, is that no material illegality is found to have been committed while framing charge under section 242, Cr.P.C. which could vitiate the trial in the instant case. Likewise the argument regarding failure of putting the incriminating evidence deposed by the prosecution witnesses while recording statement under section 342, Cr.P.C. is also without substance. The trial Court while B recording the statement of the accused under the aforesaid provision of Criminal Procedure Code is found to have disclosed all the evidence brought on record by the prosecution during trial and nothing was left out to be put to the accused which could suggest the reversal of the impugned judgment. The appellant was asked different questions during which the entire evidence was shown to him being an educated and concerned person in the service of the Trust. He is found to have understood the nature of the evidence recorded against him and he termed the same as false and fabricated behind his back. This reply by the appellant clearly indicated that nothing was left behind while putting the incriminating evidence to him therefore, he had the fair opportunity to defend him through the defence evidence but he opted not to produce any evidence in his defence.

8. Coming to the merits of the case, it may be observed that the documentary evidence especially the report of handwriting expert duly tendered in the evidence clearly provides linkage of the appellant with the offences he is convicted for. It is useful to mention here that this statement of the handwriting expert goes unchallenged by the appellant as he did not cross-examine this witness. Another factor which lends support to the prosecution case is that the appellant himself relied upon an inquiry report showing his and Muhammad Sadiq Dar's (D.D.O.) involvement in the embezzlement of benevolent fund. The fact of involvement of then D. D.O, : under law, cannot be allowed to exonerate the appellant of his criminal liability in the present case therefore, he has rightly been convicted- for commission of dishonest, misappropriation of money and criminal breach of trust as he was having dominion over the trust property. Although, Muhammad Sadiq Dar was trustee of the property yet under section 409, A.P.C. any person being public servant who has been entrusted with the property or having dominion over the property can be punished for the criminal breach of trust therefore, no illegality has been found while convicting him for commission of alleged offences. However, the sentence of fine awarded by the trial Court does not appear to meet the ends of justice. The reason being that the persons who conducted the departmental inquiry against the appellant and Muhammad Sadiq Dar appeared as prosecution witness in the instant case and it was disclosed that per their inquiry both Muhammad Sadiq Dar and appellant were equally responsible for embezzlement of the fund. As Muhammad Sadiq Dar is not before this Court therefore, any observation detrimental to his interest is not possible as it would amount to un-heard condemnation but the fact remains that it is not clear that to what extent the embezzled amount was received by the appellant. The trial Court awarded sentence of fine to the extent of total embezzled amount which is not fair neither it is in the interest of justice in the given circumstances.

9. The result is that the sentence awarded by the trial Court except fine is allowed to stand and the appeal stands disposed of accordingly.

N.H.Q./14/AJ&K Order accordingly.