Akhtar Zaman Malghani, J.--This appeal is directed against the judgment dated 16.9.2003 rendered by Accountability Court No, II Balochistan, Quetta in Reference No, 06 of 2003, whereby; the appellant was found guilty under .Section 193 PPC read with Section 30 of NAB Ordinance, 1999 and sentenced to 2 years imprisonment with fine of Rs, 50,000/-; or in default to further undergo 3 months imprisonment. Benefit of Section 382-B Cr.P.C. was also extended in favour of the appellant.
2. Briefly stated, facts of the case are that a reference was filed against the appellant and Abdul Ali Kakar, wherein it was alleged that co-accused Abdul Ali Kakar purchased a piece of land measuring 36800 sq.ft at Western Bypass Mouza Khazi, Tappa Belali, Tehsil and District Quetta vide Intecial Nos, 116 and 117 in the name of his wife Mst. Shakila. It was further alleged that during the course of investigation of a corruption case registered against the said Abdul Ali Kakar, the appellant the then Qanoongo Tehsil Quetta tempered the revenue record by substituting the name of Mst. Shakila with the name of Haji Abdul Hameed in order to show that the real owner of the property mentioned above is Haji Abdul Hameed and not Mst. Shakila.
3. At the time of submission of reference the appellant could not be arrested, as such; he was declared absconder. However, the trial was proceeded against the co-accused Abdul Ali Kakar and Haji Abdul Hameed who were accordingly convicted. The case against the appellant was kept on dormant file.
4. After arrest of the appellant the charge was read over to him to which he pleaded not guilty. The prosecution examined PW-1 Abdul Latif Patwari, PW.2 Abdul Karim Patwari; PW-3 Khan Muhammad retired office Qanoongo, PW-4 Syed Farooq Shah and PW-5 Abdul Aziz Investigating Officer in support of accusation. The appellant denied all the allegations during his examination under Section 342 Cr.P.C. He also gave statement on oath; however he did not produce any further witness in his defence.
5. The learned trial Court after evaluating the evidence on record and hearing the parties found the appellant guilty under Section 30 of the NAB Ordinance, 1999 read with Section 193 PPC and sentenced him as mentioned above.
6. We have heard the learned counsel for the appellant as well as learned Deputy Prosecutor General. We have also gone through the impugned judgment. It is mainly contended by the learned counsel that the prosecution has miserably failed to prove the case against the appellant.
He further contended that the learned trial Court has mainly relied upon the evidence of PW-2 Abdul Karim Patwari who deposed that he was conversant with the hand writing of the appellant which is weakest type of evidence and no conviction could be solely based on such testimony.
According to the learned counsel the prosecution has not sent the admitted documents as well as disputed documents for comparison to the Hand Writing Expert which was essential in the circumstance of the case and without such report the appellant could not have been convicted for the alleged charge, as there was no other evidence on record from which it could be inferred that the alleged tempering was made by the appellant. Similarly the learned trial Court illegally relied upon the document according to which the appellant has taken away the original mutation entries as it does not contain signature of the appellant and the witnesses have implicated the appellant in order to save their own skin because it was their responsibility to keep the record in safe custody.
The learned counsel further contended that no charge under Section 193 PPC or 30 of the NAB Ordinance was framed, as such; the conviction of the appellant under the said offences is illegal and without jurisdiction as the appellant has been definitely prejudiced having no knowledge of the allegations or the offence under which he was going to be tried. In this regard he has relied upon the judgments reported in PLD 1970 Dacca page 690, 1993 P.Cr.L.J. page 410, 2003 P.Cr,L.J. page 1353 and PLD 1999 Lahore page 221.
On the other hand the learned Deputy Prosecutor General supported the judgment and submitted that the prosecution has successfully proved the charge against the appellant in the light of the evidence of the prosecution witnesses. According to the learned DPG the Court can rely upon the statement of a witness who is well conversant with the hand writing of the accused.
7. We have carefully considered the contentions put forth by the parties' learned counsel in the light of evidence produced and the impugned judgment. Before touching the merits of the case, we would like to dilate upon the question as to whether the conviction of the appellant under Section 30 of the NAB Ordinance, 1999 read with Section 193 PPC was legal when no charge under the said Sections was either framed or read over to the appellant. It may be observed that the appellant was charged under Section 9(a)(iii) (iv) (v) punishable under Section 10(a) of the NAB Ordinance, 1999 with the allegations that he altered the revenue record and tried to conceal the corruption of co-accused Abdul Ali Kakar but has been convicted under Section 30 of the NAB Ordinance, 1999 read with Section 193 PPC. Section 30 of NAB Ordinance reads as under: "30. False evidence etc.--(a) Notwithstanding anything to the contrary contained in this Ordinance or any other law for the time being in force, on pronouncement of judgment, the Court shall have the jurisdiction and power to take cognizance of an offence committed in the course of the investigation or trial of a case by any officer, any witness, including an expert, who has tendered false evidence in the case, whether he deposed in Court or not, or any other person under Sections 176 to 182 of Chapter X, or Sections 191 to 204, or 211 to 223, or 225-A of Chapter XI, of the Pakistan Penal Code (Act XLV of 1860), or under any other law relating to false evidence and offences against public justice, and to summarily try him and award punishment provided for the offence under the law."
Section 192 PPC is not a substantive Section but defines :'fabricating false evidence". According to this section a person is said to fabricate false evidence if he causes any circumstance to exist or make any false entry in any book or record or makes any document containing a false statement, intending that such circumstances, false entry or false statement may appear in evidence in a judicial proceeding or in a proceeding taken by law before a public servant as such or before an arbitrator and that such circumstances, false entry or false statement, so appearing in evidence, may cause any person who in such proceeding is to form an opinion upon the evidence to entertain erroneous opinion touching any point material to the result of such proceedings.
Note:- underline is ours.
8. Bare perusal of above reproduced definition of Section 30 of NAB Ordinance, 1999 would suggest that the said section would come into picture after the pronouncement of judgment and the Accountability Court would have jurisdiction and power to take cognizance of any offence committed in the course of investigation or trial of case by an officer, any witness, including an expert, who has tendered false evidence in the case, whether he deposed in Court or not or any other person under Sections 176 to 182 or Sections 191 to 204 or 211 to 223 or 255-A PPC or under any other law relating to false evidence. The Accountability Court has been authorized to try such person summarily and award punishment provided for the offence. Under sub-section (6) of Section 30 for the trial of such offence the Accountability Court may follow the procedure specified in Chapter XXII of the Criminal Procedure Code and these proceedings can be initiated by the Court on its own accord at any time before the decision of the case or in the event there is an appeal, after decision thereof or on application by the prosecutor or the accused. Thus it is crystal clear that the provision of this section has no nexus with the offences defined under Section 9 of the NAB Ordinance, therefore any person who has been charged under Section 9 read with Section 10 of the NAB Ordinance cannot be convicted for Section 30 of the NAB Ordinance, 1999 r/w 193 PPC because the same neither comes within the ambit of Section 237 Cr.P.C. nor under Section 238 Cr.P.C. The Court while trying any person for an offence can convict him for other offence if same falls under the category of either Section 237 Cr.P.C. or 238 Cr.P.C. When at the time of framing charge the prosecution evidence reveal as to what offence was prima facie made out, Section 237 Cr.P.C. would not be attracted. In this regard we are fortified by the judgment reported in 2000 PCr.L.J 534; relevant observations are reproduced herein below: In a number of cases, this view has been expressed by the Superior Courts, that Section 237, Cr.P.C. is controlled by Section 236, Cr.P.C. and, therefore, application thereof is limited to those cases only, which fall within the provision of Section 236, Cr.P.C. Thus, where at the time of framing the charge, it is ascertainable from the perusal of evidence produced by the prosecution alongwith the challan, as to what offence is prima facie made out, Section 237, Cr.P.C. would have no application.
Needless to point out that in such an eventuality the accused must be charged for the particular offence. It, therefore, follows that on a charge of one particula offence a person cannot be convicted for a distinct offence especial when it falls within a different penal statute."
Likewise in the judgment reported in 2000 PCr.L.J 850 it was observed as under: In a number of cases, this view has been expressed by the Superior Courts, that Section 237, Cr.P.C. is controlled by Section 236, Cr.P.C. and, therefore, application thereof is limited to those cases only, which fall within the provision of Section 236, Cr.P.C. Thus, where, at the time of framing the charge, it is ascertainable from the perusal of evidence produced by the prosecution alongwith the challan, as to what offence is prima facie made out or has subsequently, something come on record, Section 237, Cr.P.C. would have no application. Needless to point out that in such an eventuality the accused must be charged for the particular offence."
Similarly Section 238 Cr.P.C. is attracted only in cases where minor offence of which accused is subsequently convicted are cognate to major offence of which accused was originally charged, whereas in the instant case the offence under which the appellant has been convicted is neither cognate to the offence with which he was originally charged nor the same could be termed as minor offence of Section 9 of the NAB Ordinance. In the judgment reported in PLD 1963 Pesh: 145 while dealing with the proposition it was held as under: "Sections 237 and 238 are the exceptions to the general rule that an accused person cannot be convicted of an offence of which he has not been charged and of which he has no notice. These two sections, however,- enable the Court to convict a person of offence which is disclosed in the evidence. Sections 237 and 238 are not (sic) mutually exclusive and are intended to apply to quite separate and distinct situations. While Section 237 applies to a wide range of offences, which may be wholly unrelated to each other and may have no common ingredients whatsoever. Section 238, on the other hand, applies to a narrow range of cases, namely, two, as specified in sub-clauses (1) and (2), whereunder conviction of minor offence included in the offence charged in either of the two cases. The first is where the offence charged consists of several particulars, a combination of some only of which constitutes a complete minor offence and such combination is proved but the remaining particulars are not proved. The second is where facts are proved which reduce the offence charged to a minor offence. Illustration (a) to the section is an example of the first class of cases and illustration (b) of the second. The principle on which the section proceeds is that where an offence consists of several particulars, a combination of some only of which constitutes a complete minor offence, the graver charge gives notice to the accused of all the circumstances giving to constitute the minor offence of which he may be convicted. The later is arrived at by mere substraction from the former. In other words, Section 238 is attracted only in cases where the minor offence of which the accused is subsequently convicted must be cognate to the major offence of which he is originally charged. The words "minor offences" are not defined anywhere in the Code, and should be taken in their ordinary sense within the dictionary meaning of the words "minor offence", as compared to the major offence."
The perusal of charge also reveals that the learned trial Court has not charged the appellant with the allegations of abricating false evidence with intention to cause the Court or Investigating Officer to entertain an erroneous opinion or for attempting to tender false evidence which were essential ingredients for indicting a person for the offence as prescribed under Section 30 of the NAB Ordinance or Sections 192 and 193 Cr.P.C. 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 for which the accused is tried are not brought out in the charge, than the charge is defective and amounts not giving full notice to the accused of allegations against him and the trial is vitiated because such omission or errors surely causes failure of justice. In the judgment reported in PLJ 1991 (Criminal Cases) 396 in such like case it was observed as under: "Charges framed by Special Court are grossly defective as they do not indicate to accused/appellants that they faced trial for offence under Section 65-A of PPC, i,e, abduction for ransom--Held: When charge does not give full notice to accused, of allegations/charge, then it vitiates whole trial--Case remanded for retrial."
For the foregoing reasons we are of the considered view that the conviction of the appellant could not be maintained and without touching the merits of the case we are inclined to remand the case to the trial Court. Consequently; the judgment dated 16.9.2003 passed by .the Accountability Court- II Balochistan, Quetta is set aside and matter is remanded for trial afresh keeping in view the observations made herein above.