Iftikhar Muhammad Chaudhry, C.J.--In this case learned High Court vide impugned judgment dated 6.3.2000 had remanded the case noticing that the charge framed against petitioner is defective. The learned counsel contended that for the reason of a defective charge trial will not be vitiated because if there as any defect that same was curable under Section 537 Cr.P.C. However, the learned counsel appearing for caveat contended that as the charge was not proper, therefore, the High Court had rightly remanded the case to the trial Court.
2. Admittedly, the accused had already undergone the sentence when the learned High Court set aside the judgment of the trial Court and remanded the case for retrial on the grounds that mere non-deposit of proceeds of dollar bearer certificates amounting to U.S. Dollars 36.7 Million within 72 hours after the sale would not amount to criminal misappropriation on the part of the accused, that the charge about the falsification of accounts under Section 477-A PPC was defective as no particulars of the manner of falsification of accounts by the accused had been given to him and similarly no particulars have been given about the charge under Section 5(2) of the Prevention of Corruption Act, 1947.
3. For a better appreciation of the issues raised it would be pertinent to refer to the charge which has been found to be defective by the learned High Court. The charge reads as under:-- "I, Rasheed A. Razvi, Presiding Officer. Special Court (Offences in Banks) Sindh, Karachi, hereby charge you accused namely Muhammad Younus Habib S/o Abdul Habib, as under:-- That during the period January to March 1994, while you were performing, acting as Chief Operating Officer, Mehran Bank Limited, criminally misappropriated the sale proceeds of Dollar Bearer Certificates amounting to U.S. 36.7 million (equivalent to Pak. Rupees 11 billion) which were under your control and dominion which were to be deposited with the State Bank of Pakistan within 72 hours after sale of the above said Dollar Bearer Certificates including its interest which you have not deposited with the S.B.P within the stipulated time and misappropriated the same by illegally converting, disposing of the same in violation of rules, legal contract and by falsification of Bank record and thus you have committed offences punishable under Section 409, 477-A PPC read with Section 5(2) of the Prevention of Corruption Act, 1947, and within the cognizance of this Court."
4. The Criminal Procedure Code lays down an elaborate procedure for framing of the charge and the rationale is that the accused could know the exact nature of the accusations made against him so that he may give a proper reply and is not misled by any vagueness in the accusations levelled. Section 222 provides that while framing the charge particulars as to time and place of the alleged offence should be given. Section 223 mandates that the manner and mode of committing offence should be stated in the charge. Section 224 stipulates that while framing the charge the relevant law and the penal provision should also be mentioned. The Legislature was conscious of the possible human error which may occur while framing the charge and perhaps precisely for this reason the section (Section 225) which succeeds the afore-referred provisions caters to that situation and it reads as under:-- "Effect of errors. No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice."
5. Besides this specific provision, there is Section 537 Cr.P.C. which, inter alia, lays down that no finding or sentence or order passed by Court of competent jurisdiction shall be reversed on account of any error in the charge or misjoinder of charges and that to determine whether any error, omission or irregularity in this regard has occasioned failure of justice, "the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings."
6. Coming to the facts and circumstances of the instant case, we note that non-mention of the particular State Bank regulation, or rule which required deposit of sale deposits of Dollar Bearer Certificates with the State Bank within 72 hours, the absence of particulars and the manner of falsification of accounts by the accused as also about the charge under Section 5(2) of Prevention of Corruption Act, 1947 were omissions or irregularities but they could warrant annulling of the findings of conviction justifying retrial only if the accused (a) had been misled by it and (b) if it had occasioned miscarriage of justice. A dose look at the charge framed against the accused would indicate that the charge did spell out the period within which the alleged transaction took place the total amount allegedly misappropriated, the manner the offence took place and the offences which were attracted to the facts of the case. Moreover, the F.I.R. registered against the petitioner on the complaint of the Director General F.I.A. specifically alleged that petitioner who was the Chief Operating Officer of the Mehran Bank Ltd. had acted in violation of the banking and other laws applicable in the manner as under:-- "Dollar Bearer Certificates amounting to US dollar 36.7 million (equivalent to Rs, 1.1 billion) were sold by the bank during the period from January-March, 1994. Dollar Bearer Certificate is a Federal Government Paper, and is sold by banks on behalf of the Government of Pakistan. Full sale proceeds of the Dollar Bearer Certificates were required to be deposited in the Government account with the State Bank of Pakistan within 72 hours under the prescribed rules. Mehran Bank Limited have not deposited the sale proceeds of the said DBC's valuing US Dollar 36.7 million (equivalent to Pak Rupees 1.1 billion) and have instead obtained wrongful gain by misappropriation of the same thereby committing criminal breach of trust causing wrongful loss to the Government exchequer to the time of US $ 36.7 million (equivalent to Pak Rupees 1.1 billion) excluding the return/interest amount accrued thereupon by not depositing the amount within the stipulated period. Further inquiries into the affairs of Mehran Bank Limited are being conducted/carried out by the State Bank of Pakistan."
7. The afore-mentioned allegation was explicit and could not be described as vague. The learned High Court did not appreciate that these errors or omissions would not be material, "unless the accused was in fact misled by such error or omission and it has occasioned a failure of justice. " In pars-10 of the impugned judgment, the learned High Court has attempted to explain how according to it the accused misled and referred to a question asked to the accused in his statement under Section 342 Cr.P.C. with regard to his salary and the reply given by him. This had nothing to do with the charge framed and no inference could be drawn from it that he was misled or that it had occasioned failure of justice. Furthermore, before giving any finding or observation that any error or omission had occasioned a lailure of justice", the law mandates that "the Court shall have regard to the fact that whether the objection should have been raised at an earlier stage in the proceedings." Admittedly, petitioner-accused did not raise this objection before the trial Court that he had been misled by the framing of the charge. Even after conviction the petitioner did not allege so in the grounds of appeal filed before the learned High Court and even during arguments, the petitioner's learned counsel never raised this plea that the petitioner had been misled by the framing of the charge. In these circumstances, it was not open for the Court of Appeal to have annulled the judgment and directed retrial after more than five years of the judgment of the trial Court. If the High Court was of the view that the evidence was deficient to prove the charge or it was not a case of conviction, the Court could proceed as mandated in law.
But in the facts and circumstances given above, it was not a case in which conviction could be annulled on that sole ground. We are fortified in our view by a judgment of the Indian Supreme Court in Moti Das and others u. The State of Bihar (AIR 1954 SC 657) wherein at page 65 it was observed that, "but a mere imperfection in the charge cannot be used to over-throw a conviction unless prejudice can be shown. The irregularity is curable both under Section 225 and Section 537 of the Criminal Procedure Code."
8. For what has been discussed above, the judgment of the High Court of Sindh at Karachi dated 6.3.2000 is set aside and the appeal of the petitioner shall be deemed to be pending before the High Court to be decided on merits. Petition converted into appeal and allowed.