Mian NISAR AKHTAR and another vs THS STATE

1. ' FAIZ MUHAMMAD QURESHI, J.---Through this criminal revision application under sections 435/439, Cr.P.C., the applicants have challenged the Order, dated 19-5-2001, passed by the Presiding Officer, Special Court (Offences in Banks) Sindh at Karachi on the application under section 537, Cr.P.C.

2. Read with section 5(8) of the Offences in Respect of Banks (Special Courts) Ordinance, 1984, moved by the afore-named applicants.

3. ' The case of the prosecution against the aforenamed applicants is that during the year, 1990, being Directors of Messrs Mass Dairies Limited, Karachi, were entrusted with machines, equipment, lying at Messrs Mass Dairies Limited, S.I.T.E., Karachi under hypothecation of DAP against loan facility of Rs,29, Million and in furthrance with common intention they all knowingly, fraudulently removed misappropriated the hypothecated machineries from the project S.I.T.E. Valuing Rs,179.829 Million and thereby committed the offence of criminal breach of trust, punishable under section 406/34, P.P.C.

4. ' Mr. Abdul Hafeez Lakho, learned counsel for applicants has argued that the charge framed by the trial Court dated 7-4-2001 is not in accordance with the mandatory provisions of section 222(1)(2), Cr.P.C. He has further contended that the applicants may undergo double agony, if the case is remanded for retrial by the Appellate Court on the ground of framing defective charge, therefore, the applicants moved an application under section 537, Cr.P.C., read with section 5(8) of Offences in Respect of Bank (Special Courts) Ordinance, 1984 with a prayer to amend the charge. In support of his contention, Mr. Abdul Hafeez Lakho, learned counsel for applicants has placed reliance on 1992 PCr.LJ 1781; 1999 PCr.LJ 2086 and 1994 M LD 1493. #TBS [Vol.XX #TBE ' On the other hand, Mr. S. Tariq Ali, learned standing counsel has contended that the charge has been properly framed by the trial Court and is in accordance with the provision of law and has opposed to the contention raised by Mr. Abdul Hafeez Lakho, learned counsel for applicants. We have heard Mr. Abdul Hafeez Lakho, learned counsel for applicants. Mr. S. Tariq Ali, learned standing counsel at length and have examined the material available on record and the charge framed by the learned trial Court. We have also gone through the order passed by the learned Presiding Officer, Special Court (Offence in Banks) Sindh at Karachi.

5. ' The charge framed by the learned trial Court is not in accordance with the provisions of section 222(1)(2), Cr . P. C . The learned trial Judge has not taken into consideration, the mandatory provisions of section 222(1)(2), Cr.P.C. It would be advantageous to reproduce the same as under:- - "Particular as to time, place and person."--(1) The charge shall contain such particulars as to the time and place of the alleged offence, and the person (if any) against whom; or the thing (if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged.

(2) When the accused is charged with criminal breach of trust or dishonest misappropriation of money, it shall be sufficient to specify the gross sum in respect of which the offence is alleged to have been committed, and the dates between when the offence is alleged to have been committed, without specifying particular items or exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of section 234."

6. It is mandatory that charge shall contain all material particulars as to time, place as well as specific name of the alleged offence, the manner in which the offence was committed and particulars of the accused so as to afford accused opportunities to explain the matter, with which he is charged. The purpose behind giving such opportunity is that the person against whom such charge is framed should prepare his case accordingly and may not be misled in preparing his defence. The charge is very start of trial and it is that stage when accused comes across the accusation levelled by the prosecution against him, as such, he will have to keep such material in his mind during the proceeding of the trial.

7. ' In view of the above discussion, we have seen the charge very carefully framed by the trial Court with jaded and critical eye and the same has not been framed in accordance with mandatory provisions of section 222(1)(2), Cr.P.C. We are being fortified by law cited by Mr. Abdul Hafeez Lakho, learned counsel for the applicants. Resultantly, the order dated 19-5-2001 is set aside. Trial Court is directed to amend the charge in accordance with the strict provisions of section 222(1)(2), Cr.P.C.

8. This criminal revision stands accepted. /order accordingly.