' JAVED IQBAL, J.--- Pursuant to Reference No,37 of 2001, dated 6-2-2001 filed by Chairman of National Accountability Bureau, S.A.K. Rehmani (hereinafter referred to as the "petitioner") was tried by the learned Judge, Accountability Court, Rawalpindi, along with two other accused persons while the remaining accused persons were convicted and sentenced under section 31-A of the NAB Ordinance, 1999 in absentia being absconders. The petitioner was convicted under section 9 of the NAB Ordinance, 1999 and sentenced to five years' R.I. With fine of Rs,5, 00,000. He was also convicted under section 409, P.P.C. And sentenced to undergo three years' R.I. With the direction that the sentences were, to run concurrently with benefit of section 382-B, Cr.P.C. It was directed that in case of default in the payment of fine the same shall be recovered under section 386-B, Cr.P.C.
Being aggrieved an appeal was preferred which has been rejected by a learned Division Bench of Lahore High Court, Rawalpindi Bench, vide judgment impugned, hence this petition.
2. Mr. Mujeeb-ur-Rehman, learned Advocate Supreme Court entered appearance on behalf of petitioner and urged with vehemence that the conviction could not have been recorded on the basis of documents (Exh.P.7/1, Exh.P.7/14 and Exh.P.7/21) which were not proved in accordance with law and besides that the authors of the documents were not produced hence the question of conviction on inadmissible evidence does not arise. It is argued that mere production of such documents would not improve the case of prosecution in any manner whatsoever which aspect of the matter has been ignored by the learned trial and Appellate Courts which resulted in serious miscarriage of justice. It is contended emphatically that the' petitioner was never confronted with the entire incriminating material and resultantly his statement got recorded under section 342, Cr.P.C. Has no value and on this score alone the judgment impugned is liable to be set aside. It is contended that the petitioner was never asked to explain as to whether the documents produced against the petitioner to substantiate the accusation were ever signed by him or otherwise? It is further contended that the judgment impugned is laconic as the charge framed against the petitioner suffered from incurable defects as he was never charged under any of the subsections of section 9 of the NAB Ordinance, 1999 and therefore, he was deprived to lead proper defence evidence which caused a serious prejudiced against the petitioner. It is further contended that conviction could not have been recorded on the basis of documents which were never seized in accordance with law and no recovery memo. Was prepared to that effect. , In order to substantiate his view point Mr. Mujeeb-ur-Rehman, learned Advocate Supreme Court for the petitioner has relied upon the following authorities:-- ' Muhammad Yousuf Khan Khattak v. S.M. Ayub PLD 1973 SC 160, Abdullah Khan v. State PLD 1969 Lah. 103, Mohatarma Benazir Bhutto v. The President of Pakistan PLD 1992 SC 492, Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14; Bengal Friends & Co. v.
Gour Benode Saha & Co. PLD 1969 SC 477 and Bashir Ahmed Bhanbhan v. Shaukat Ali Rajpur PLD 2004 SC 570.
3. Learned Prosecutor-General, NAB appeared on behalf of NAB and strenuously controverted the view point as canvassed at bar by the learned Advocate Supreme Court on behalf of petitioner and supported the judgment impugned for the reasons enumerated therein with further submission that the prosecution has proved the accusation by producing cogent and concrete documentary evidence and worthy of credence oral evidence. It is argued firmly that the documents in question were recovered, produced and got exhibited in the manner prescribed under law and no illegality whatsoever has been committed and moreso, the documents in question were admitted by the petitioner and no objection qua their admissibility can be raised at this stage. It is also mentioned that the petitioner was confronted with the incriminating material collected against him while his statement was being recorded under section 342, Cr.P.C. And no illegality has been committed in this regard.
4. We have carefully examined the respective contentions as agitated on behalf of the parties in the light of relevant provisions of law, scanned the entire evidence and perused the judgment of learned Accountability Court as well as judgment impugned. We are not persuaded to agree with the prime contention of Mr. Mujeeb-ur-Rehman, learned Advocate Supreme Court for the petitioner that the conviction could not have been recorded on the basis of document not proved in accordance with law for the simple reason that various documents including Exh.P.107 were recovered and got exhibited by Nij abat Hussain, Inspector F. I. A . (P. W .17) , relevant portion of his statement is reproduced hereinbelow which negates the version of learned counsel:-- "On 17-2-2000, I took into possession various documents vide memo. Exh.P.N., Exh.P.99 and Exh.P.100 are the original record the rest of the documents are available at pp.201 203 which are photocopies. On 8-12-2000, I took into possession letter Exh.P.101 and printed copy of Act/Ordinance, printed copy of purchase Procedure/rules and delegation of financial powers available at pp.206 to 316 of the reference vide recovery memo. Exh.P.O. On 12-12-2000 Saleem Aziz P.W. Produced before me tenure certificate of the Officer as Exh.P.102 vide recovery memo. Exh.P.P.
On 13-12-2000, I took into possession budget allocation of ARP-II Exh.P.103, expenditure statement Exh.P.104, copy of delegation of power Exh.P.105, report of committee already Exh.P.94, invoices Exh.P.106, approval of separation Exh.P.107 from Javid Ahmed Director, Accounts available from pages 321 to 386 of the reference book were taken into possession vide recovery Exh.P.Q. On 26-12- 2000, I took into possession documents objective and functions Exh.P.1 and procedure Exh.P.2.
Already on the file at pages 389 to 402 from Muhammad Naeem Saleem P.W. Vide recovery memo.
Exh P . A .
5. A bare perusal of the above reproduced portion of the statement of Nijabat Hussain (P.W.17) would reveal that all the documents were recovered, taker into possession from the concerned functionaries vide recovery memos. In the presence of witnesses and no illegality whatsoever has been committed by Nijabat Hussain (P.W.17) while doing the needful and no provisions of Qanun- e-Shahadat Order, 1984 have been violated. The learned Advocate Supreme Court when confronted with this situation could not point out any Article of Qanun-eShahadat Order, 1984 violation whereof could render the entire proceedings vitiated as pressed time and again in this regard. At this juncture it must not get lost sight of that no objection worth the name was raised qua the admissibility of the documents in question, manner or recovery, source of recovery and recovery memos. The authenticity of genuineness of the said documents and signatures of the petitioner were never questioned at opportune moments before appropriate forum for the reasons best known to the learned counsel. All these objections could have been replied only by Nijabat Hussain (P.W.17) who was not cross-examined in such terms. How such objections could have been answered by anybody else except Nijabat Hussain (P.W.17) who was only cross-examined about different projects of PARC, provisions of funds and its utilization? In such view of the matter it can be inferred safely that the documents in question were admitted which could have been taken into consideration and relied upon after its admission by the learned Accountability Court in the absence of any legal bar which could not be pointed out by the learned Advocate Supreme Court on behalf of petitioner. We have also examined the documents Exh.P.W.7/1 to Exh.P.W.7/22 which were taken into possession by Shahzad Haider, Inspector, F.I.A., State Bank Circle (P.W.7) through recovery memo. Exh.P.J. And subsequently, the same were handed over to Mr. Tariq Butt, Assistant Director, F.I.A. The only objection raised was that the said documents being unpublished could not be tendered in evidence which being untenable has rightly been ruled out by the learned Accountability Court because these documents were neither privileged nor any such privilege was ever claimed. The original documents were taken into possession by means of recovery memos.
(Exh.P.J.) and copies whereof were made available to the petitioner and hence the question of any prejudice does not arise. Learned Division Bench has adverted to the question of production and admissibility of such documents in judgment impugned, relevant portion whereof reproduced hereinbelow for ready reference is:- "Before proceeding further in the matter we deem it proper to deal with the said primary argument of the learned counsel for appellant regarding the admissibility of the said documents. Now all the said documents formed part of the Reference which was filed in the learned trial Court by the Chairman NAB. There is no allegation that all the said copies were not delivered to the appellant in the manner prescribed. Now documents Exh.P.W.7/1, Exh.P.W.7/14 and Exh.P.W/7/22 were produced by the P.W.7 in the course of his statement on oath. The objection was raised that these being unpublished documents cannot be tendered in evidence. The objection was overruled with the observations that the concerned department has not claimed any privilege and original were supplied to the prosecution and copies have been given to the accused. These documents were taken into possession by the witness through memo. Exh.P.J. The witness having thus made statement on oath was subjected to cross-examination by the learned counsel for the appellant.
We do not find any suggestion that the documents are fabricated or that these do not bear signatures of the appellant. The document Exh.P.107 was produced by P.W.17 Nijabat Hussain, Inspector, in his statement on oath. We do not find any objection having been taken to the production of the same."
6. The above determination of the learned Division Bench of High Court is well-based and hardly warrants any interference as no illegality or infirmity could be pointed out by the learned Advocate Supreme Court on behalf of the petitioner. The concurrent findings of fact as recorded by the learned Accountability Court and learned Division Bench of High Court cannot be reversed on hypertechnical assertions and without any lawful justification which is lacking in this case.
7. After having gone through the entire record with the eminent assistance of learned counsel, we are inclined to endorse the conclusion of learned Division Bench which is strictly in accordance with law and settled norms of justice which is reproduced hereinbelow for ready reference:--- "As per contents of Exh.P.W.7/l said Muzaffar Nishat put up a note stating that during the fiscal year 1995-96 an amount of Rs,13.373 million was allocated for purchase of vehicles under ARP-II budget.
It was proposed to purchase six Toyota Hilux double Cab at the rate of Rs,12,75,000. Each and a Toyota Land Cruiser at Rs,46,00,000 Total amount was Rs,12.250 million. The request was made for transfer of Rs,12.250 million. The request was made for transfer of Rs, 12.300 million to TARI Karachi for payment to the motor companies. This note was put up on 18-10-1995 by all three co-accused namely, Muzaffar Nishat, Aslam Pervaiz Durrani and Moazzam Rashid Dar. It was stated that since there was a business shut down in Karachi the members of the Purchase Committee visited Lahore Market and conducted a survey on 25-10-1995 and 26-10-1995 and after some hectic efforts and thorough investigation the price of M/s. Wings Motors (Dawood Meer co-accused) were found to be lowest. According to this note Toyota Hilux was quoted at Rs,11,75,000 each while Land Cruiser was quoted at Rs,45,00,000. The payment shall be made in advance upon delivery. The Project Director (Abdul Jabbar co-accused) approved on 8-11-1995 and the appellant gave his approval on the same date. Now there is evidence available on record in the statement of Sajjad Yaqub P.W.11 Manager Sale of Toyota Capital Motors. According to this witness, as per report Exh.P.93 prepared by him, the price of Toyota Hilux was Rs,9,24,500 while the price of Land Cruiser was between Rs,25 to 28 lacs. Now according to the appellant as per his said statement, all the Rules in the matter of purchase/procurrent were kept intact. Still he did not notice the obvious i,e, violation of the said Rules inasmuch as the provision regarding calling of tender, furnishing of bank guarantee against advance payment were violated. The manner of said purchase is not countenanced by any rules of which the appellant was fully aware according to his own statement.
Similarly as per Exh.P.W.7/14 it was reported that for fiscal year 1995-96 a sum of Rs,20.373 million was kept under the said head. Four Suzuki Potohar vehicles and one Toyota Corolla was proposed to be purchased for total costs of Rs,6.20 million. The note/initiated by Muzaffar Nishat in the same manner on 16-1-1996. In the similar manner it was stated that there is strike in Karachi and Market at Lahore was surveyed. Lowest bid reported for Suzuki Potohar was Rs,7,80,000 each while Toyota Corolla at Rs,l million. The note was sent up by Abdul Jabbar co-accused and was approved by the appellant as Member Finance. Now no notice was taken of the fact that in the earlier note it was pointed out that Rs,13.377 million had been kept under the said head of the purchase. Expenditure of Rs,11.550 million had already been approved whereas in this note initiated on 16-1-1996 it was stated with impunity that the amount kept under the head was Rs,20.373 million. There is also evidence on record that price of the said Toyota Corolla at the relevant time was Rs,5,99,000 (P.W.11 and Exh.P.93) vide Exh.P.W.7/21 similar proceedings were conducted for purchase of Toyota Corolla Japan assembled Diesel Model Car for Rs,14,00,000. Evidence has also come on record that quotation by the parties other than Wings Motors' and Alpha Motors were bogus.
(9) Now effect of said change in the matter of payments.Brought about by the appellant on the instigation of Moazzam Rashid Dar co-accused was that the entire Department of Finance including the Senior Director, Director and Deputy Director, the entire Accounts Department and the entire Procurement Department stood excluded from the process of the said purchase. All the matters practically came into the hands of said Moazzam Rashid Dar the Accounts Officer and Project Director Abdul Jabbar. The Purchase Committee was also selected accordingly. This fact is apparent from the said documents i,e, Exh.P.W.7/1, P.W.7/4 and P.W.7/21. The deed was done in absolute violation of the applicable Rules, and, it is but apparent, with full confidence that these will be approved by the appellant and consequently the Chairman co-accused. There is evidence on the record as to how the amount embezzled ended up in the personal accounts of the said members of the Committee and withdrawn."
8. The entire evidence has been scrutinized and examined in depth by the learned trial and Appellate Courts. It would be a futile and academic exercise to examine at this belated stage the admissibility of documentary evidence which was never questioned, objected or challenged before the learned trial Court but on the contrary it was admitted. The only objection raised was that the privileged document could not be tendered in evidence which being not tenable has rightly been overruled by the learned trial and Appellate Courts.
9. We may mention here that documents exhibited without objection can be taken into consideration and no such objection can he raised in appeal or revision. In this regard we are fortified by the dictum laid down in cases titled Gulzar Hussain v. Abdur Rehman 1985 SCMR 301, Abdullah v. Abdul Karim PLD 1968 SC 140.
10. It is well-settled by now that "where the objection as to the manner of proof of a document is not taken at the time the document is sought to be proved in the lower Court and the document is freely referred to by the parties before the lower Court, it cannot be raised in second appeal. Where the objection to be taken is not that the document is in itself inadmissible but that the mode of proof put forward is irregular or insufficient, it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. A party cannot lie by until the case comes to a Court of appeal and then complain for the first time of the mode of proof.
"Dogar. Mal v. Sunam Ram 1944 L 58, Ayyavar Thevar v. Secretary of State 1942 M 528, Girindra Chandra Ganguli v. Rajendra Nath Chatterjee 1 CWN 530, Dii Muhammad v. Sain Das 1927 L 396, Gopal Das v. Sri Thakurji 1943 PC 83, Yaggana Obanna v. Kutugulla Gangaiah 1945 M 361, Abdul Samad v. Gunendra Krishna Roy 1925 C 452 (Law of Evidence, M. Monir, 740). "The documents admitted in evidence without raising objection can be considered as a concrete proof of the signature and contents of the documents." Reference in this regard can be made in the case of Muhammad Yousuf Khan v. S.M. Ayub PLD 1972 Peshawar 175.
11. As mentioned hereinabove "the objection as to the mode of proof of document must be made before the document is marked as exhibit." If any authority is needed reference can be made to Khizrat Muhammad v. Ghulam Muhammad PLD 1962 Lah.492. No objection whatsoever was raised either before learned Accountability Court at appropriate juncture as such at this stage the objection qua admissibility of documents cannot be raised.
12. The second contention agitated on behalf of petitioner that the petitioner was not confronted with the incriminating material collected against the petitioner and produced during trial in his statement got recorded under section 342. Cr.P.C. Is baseless and appeared to have been made in oblivion of the statement of petitioner got recorded under section 342. Cr.P.C. The petitioner had admitted himself in a categoric manner while answering question No,1 that the entire evidence presented against him was heard and understood by him. It was never the case of petitioner that any documentary evidence was concealed or suppressed or its contents were based on any particular document which was never brought to his knowledge or copy whereof was not made available. The question No,3 and its answer would make the position abundant clear which is as under:--- "Q.No,3. It is in evidence that an amount of Rs,12.373 was kept in the brought of ARP-II for purchase of vehicle. But you approved/recommended the expenditure of Rs,22.140 million for purchase of vehicles. In this way an amount of Rs,9.769 million was incurred over and above the allocated budget. This expenditure was recommended by you in order to facilitate fraudulent payments?
' Answer. No, This is incorrect. There is no such evidence on the file. The sphere of activity of Member Finance was in PARC Council.
' Making recommendation, checking the availability of budget personally was not a function of Member Finance in PARC.
' Various Officers had been delegated different powers for purchase of different items. The Chairman, PARC had full powers to sanction expenditure for purchase of vehicles which did not require concurrence of Member Finance.
' It was a duty of the Procurement Officer to check the funds position from finance/accounts before submitting the case to the competent authority for accepting the quotations. The D.D.O. Was required to keep a watch on the expenditure and budget. D.D.O. And Audit Officer were required to examine quotations, lowest offer and the budget provision. The Chairman was to approve."
13. Question No,4 and its answer have removed all the doubts that the petitioner was either not aware about the exact nature of accusation or any documentary evidence was not within his knowledge. Question No,4 and its answer is reproduced hereinbelow for ready reference:--- "Q.No,4. It is in evidence that you recommended separation of payments system from Finance Division PARC to ARP-II despite the objection of Deputy Director Accounts, Director of Accounts and Senior Director Finance. As a result of this act of yours, fraudulent payments were made for purchase of vehicles in 1995-96?
Answer. No, This is not correct. No witness has made any statement to this effect. The Chairman had given undertaking to streamline the accounting and financial procedure. ARP-II initiated and moved the proposal. In the process I had the case examined by subordinates i,e, Director Accounts and Director Finance, who, in turn had got the proposal examined by their subordinates. There was no deviation in the process. When the case reached me, I incorporated all necessary checks and safeguards.
' So far as I was concerned the financial discipline was not allowed to be slackened. All payments were to be made after checking by Auditors, pre-audit by Audit Officer, authorization by the D.D.O., two signatories for all cheques, maintenance of all books of account according to the prescribed Accounting Manual, submission of monthly expenditure statement by the 8th of next month, internal audit by Main Finance Division and post audit by commercial as well as Government Auditors, all remained intact. The PARC rules were kept firmly intact. The pre-audit, Auditors and the D.D.Os. The Account Officers and the post audit remained intact. Procurement procedures were not changed.
' There is evidence on the file to the effect that "PARC Accounting System and Procedures" remained fully in force."
' In any case the streamlining of the procedures had no nexus with the fraudulent payments.
' Similar payment systems are in practice in NARC (Islamabad), KARINA (Jaglot), AZRI (Quetta), TARI (Karachi) and no fraud has been reported there. A separate payment system, within the PARC Headquarters building, could not be expected to lead to frauds."
14. The petitioner in fact has admitted about the novel and unique device evolved in deviation of procedure for making payments of huge amount worth whereof runs into millions by excluding all the concerned functionaries and conferring all the financial powers upon co-accused namely Moazzam Rashid Dar enabling him to create financial havoc by making huge payments to fake firms which were never in existence. The similar system was adopted by NARC (Islamabad), KARINA (Jaglot), AZRI (Quetta), TARI (Karachi) or not but how the fake firms can be made genuine by following the system of other Departments.
15. We have also adverted to the question that what should be the impact of non-compliance of the provisions as contemplated in section 342. Cr.P.C. We have thrashed out all the most entire precedent law. PLD 1969 Peshawar 12, 1969 SCMR 416. PLD 1960 Lahore 822, PLD 1960 Lahore 547, AIR 1962 SC 1229. AIR 1961 SC 175, AIR 1960 Raj. 80, AIR 1954 SC 692, AIR 1956 SC 731, AIR 1954 SC 660, PLD 1956 Lahore 174, PLD 1957 SC (Ind.) 133, ILR (1956) 2 All. 127, 1954 FCR 223. AIR 1961 SC 175, AIR 1960 Raj.
80, AIR 1954 SC 692, DLR FC 123, DLR FC 139. And judicial consensus seems to be that "every error or omission amounting to non-compliance with the provisions of this section does not necessarily.
Vitiates the trial; such errors fall within the category of curable irregularities and the question whether the trial is vitiated, in each case depends upon the degree of the error and upon the question whether prejudice has been or is likely to have been caused to the accused." It must not be lost sight of that "every defect or error in the examination under section 342, Cr.P.C. Would not be consequential unless it is shown that prejudice has been caused and moreso, the nature of prejudice must be stated. AIR 1960 Rajastan 80, AIR 1956 SC 536, AIR 1956 SC 241. There is no cavil with the proposition that "there must be proof of prejudice to the accused and unless miscarriage of justice is shown to have occurred, particularly in a case where the accused was represented by counsel, inadequate examination under S.342 cannot be made a ground for setting aside the conviction." 21 DLR 377, PLD 1955 Dacca 68, AIR 1961 Calcutta 240, AIR 1956 SC 536. It may be mentioned here that the provisions as contained in section 342, Cr.P.C. Have been discussed on different occasions by various judicial forums by holding that reasonable opportunity must be afforded to the accused while recording his statement under section 342, Cr.P.C. Enabling him to explain his position. The provisions as contained in section 342, Cr.P.C. Were discussed in the case of Abdul Wahab v. Crown PLD 1955 Federal Court 88 which still holds the field is reproduced herein below for ready reference:--- "The opening words of the section are very important. It is 'for the purpose of enabling the accused to explain the circumstances appearing in evidence against him' that his examination is needed.
Where 'the circumstances appearing in evidence against him' are not put to the accused and his explanation is not taken thereupon, it cannot be said that the purpose of section 342 has been fulfilled. It is not a mere formality, but is an essential part of the trial that the accused should be given notice of the point or points which he must meet in order to exonerate himself. In Tani's case 20 Cr.LJ 12 (Nag.), it was held 'in order that the accused may explain all the facts appearing in the evidence against him, it is necessary that his attention should be directed to all the vital parts of the evidence against him, especially if he is an ignorant person who cannot be expected to know or understand what particular parts of the evidence are or are likely to be considered by the Court to be against him.' In Alimuddin's case (52 Cal. 522), it was laid down the Court should not only point out to the accused the circumstances appearing in the evidence which require explanation but it must out of fairness of the accused exercise that power in such a way that the accused may know what points in the opinion of the Court require explanation and failure or refusal on the part of the accused to give the explanation will entitle the Court to draw an inference against him.' In the Calcutta case cited above, it was also pointed out that the word 'generally' does not limit the nature of the questioning to one or more questions of a general nature relating to the case, but it means that the questions should relate to the whole case generally, and should not be limited to any particular part or parts of it. The word 'generally' does not mean that the accused cannot be subjected to a detailed examination by the Court. The law intends that the salient points appearing in the evidence against the accused must be pointed out to him in a succinct form and that he should be asked to explain them if he wished to do so.
' It could not, however, be overlooked that the real object of section 342 is not to subject the accused to a detailed cross-examination. It is, as a matter of fact, inviting his attention to the point or points in the evidence which are likely to influence the mind of the Judge in arriving at conclusions adverse to the accused, and before such an adverse inference can be drawn, the accused should be afforded an opportunity to offer an explanation, if he has any."
16. There is no cavil with the proposition that "section 342, Cr.P.C. Can be bifurcated into two parts.
Subsection (1) of section 342, Cr.P.C. Confers discretion to the Court while its second part is mandatory and besides that the section revolves around the maxim audi alteram partem, i,e, that no one should be condemned unheard." AIR 1940 Nag. 283, 41 Cri.LJ our 585; AIR 1957 Mys. 9, ILR 1956 Mys. 114, 1957 Cri.L. Jour 208, AIR 1936 Pesh. 211, AIR 1937 Pesh. 20, 38 Cri. Jour 3-87, AIR 1935 Cal. 605, AIR 1936 Oudh 16, 36 Cri.L Jour 1303, AIR 1934 Oudh 457. "The purpose of this section is that the Court should give an opportunity to the accused to give such explanation as he may consider necessary in regard to the salient points made against him. It is, however, not intended merely for his benefit.
It is a part of a system for enabling the Court to discover the truth, and it constantly happens that the accused's explanation, or his failure to explain, is the most incriminating circumstance against him. The result of the examination may certainly benefit the accused if a satisfactory explanation is offered by him; it may, however, be injurious to him if no explanation or a false or unsatisfactory explanation is given". PLD 1967 Dacca 503.
17. We are not persuaded to agree with Mr. Mujeeb-ur-Rehman, learned Advocate Supreme Court for petitioner that the provisions as contained in section 342, Cr.P.C. Were enacted to safeguard the interest of the accused for the simple reason that prime object of the section is "to enable the accused to explain any circumstances appearing against him in the evidence; the intention of the provision is the furtherance of the ends of justice and to enable the Court to decide the question of the guilt of the accused." PLD 1951 Cal. 14, AIR 1934 All 693, 35 Cri. L. Jour 879, AIR 1934 Oudh 457, 35 Cri.L Jour 1417, 26 Cri.L. Jour 631.
18. It may be observed on the same wake of events that "the whole object of enacting this section is that the attention of the accused should be drawn to the specific points in the evidence on which the prosecution claims that the case is made out against the accused, so that he may be able to give such explanation as he desires to give." 1969 P. Cri.LJ 259, 20 DLR 666, PLD 1961 Dacca 113, 13 DLR 407, 21 DLR 377, PLD 1952 FC 63, PLR 1951 WP 863.
19. The case of petitioner has been examined on the touchstone of the criterion as mentioned hereinabove and we are of the considered view that no proof of prejudice could be furnished nor it could be pointed out that as to how. Miscarriage of justice has been done. Even otherwise it is settled principle of law that the procedural defects and irregularities shall not demolish the prosecution case nor vitiate the trial. J We have also mentioned that the petitioner was confronted with the entire relevant incriminating material brought against him by the prosecution and hence the question of any prejudice or miscarriage of justice does not arise.
20. We have also adverted to the contention of learned Advocate Supreme Court that proper charge could not be framed by the learned Accountability Court benefit whereof should be given to the petitioner. It is to be noted that at the time of framing of charge no such objection was raised and moreso, it was not pointed out to the learned High Court that charge was defective. It is, however, to be noted that it is not the case of petitioner that he was convicted under charge different from that which he was called upon to meet. We are conscious of the fact that the view that he has been misled in his defence by the absence of a "where a person is convicted of an offence and the Appellate Court is of charge or by an error in the charge, appropriate action can be taken including remand of the case with direction for making suitable amendment in the charge". AIR 1949 All 599, 50 Cri. L. Jour 923, AIR 1958 Ker. 94, ILR 1958 Ker. 283, 1958 Cri.L. Jour 516, AIR 1942 Pat. 143, 43 Cri.L. Jour 134, AIR 1922 Lah.135, 23 Cri. L. Jour.
5. The case of petitioner does not fall within the ambit of provisions as contained in section 232, Cr.P.C. As no such complaint was made either by the petitioner himself or learned counsel on his behalf before the forums below. It is to be noted that "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 with which the accused is convicted is not brought out in the charge, then the charge is defective. Makhan v.
Emperor AIR 1945 All.
81. In other words it can be said that "the main object of framing of charge is to ensure that the accused had sufficient notice of the nature of accusation with which he was charged and secondly to make the Court concerned conscious regarding the real points in issue so that evidence could be confined to such points." 15 Born. 491, AIR 1958 Ker.94, ILR 1958 Ker.283, 1958 Cri. L. Jour 516, AIR 1916 Cal. 188, 16 Cri. L. Jour 497, AIR 1916 All. 60, 17 Cri.L. Jour 675, 29 Cri. L. Jour 1022, 1869 Pun. Re. (Cr): No,39, AIR 1918 Pat. 448, 19 Cri. L. Jour 169.
21. There is no cavil with the proposition that "the charge must allege all facts which are essential factors of the offence in question." AIR 1936 Nag. 275, 38 Cri.L. Jour 380, 1897 Rat. 921, 16 Suthj., WR (Cr.) 53, 12 Cri. L. Jour 483 (Lah.), 3 Born. HCR (App. 1), but no yardstick can be fixed qua the particulars which should be mentioned in the charge as it depends upon circumstances of each case. AIR 1925 Ca1.603, 26 Cri. L. Jour 849, 14 Suth W.R. (Cr.) 13, AIR 1933 Cal. 676, 34 Cri.L. Jour 1219). It would suffice to observe that "charge must contain all facts and circumstances which are essential ingredients of the offence with which the accused is charged." AIR 1936 All 275, 38 Cri. L. Jour 380, 1897 Rat. 921, 12 Cri.L. Jour 483. It must be kept in view that "omissions in a charge cannot be.
Regarded as material unless in terms of 5.225 it is shown by the accused that he has in fact been misled by such omissions or that there has been a failure of justice as a result of such omissions.
Where the accused is not misled, a defect in the charge is not material. Where the accused is prejudiced, the defect is material." PLD 1950 Pesh. 6, AIR 1956 SC 575, 1956 SCR 483, 1956 Cri.L. Jour 1116, AIR 1952 Tray-Co. 11, ILR 1951 Trav-Co.254, 1952 Cri.L. Jour 157, AIR 1956 SC 469, 1956 SCR 206, ILR 1956 Cut 409, 1956 Cri.L. Jour 831, AIR 1950 All. 167, ILR 1950 All. 1256, 51 Cri.L. Jour 571.
22. In our considered view the objection regarding improper charge has been made in oblivion of the provisions as contained in section 237, Cr.P.C. Which enables the Court to convict a person of an offence which is disclosed in the evidence and for which he might have been charged under the provisions of sections 236, although he was not charged with it." PLD 1965 Kar. 541 (DB), AIR 1952 SC 159, 1952 SCR 526, 1952 Cri.L. Jour 839, AIR 1925 PC 130, Cri.L. Jour 1059, AIR 1958 SC 141, 1958 SCR 774, 1958 Cri.L. Jour 271, AIR 1955 SC 274, 1955 Cr.L. Jour 721, 1955 SCR 1201, ILR 1955 Punj. 154, AIR 1952 SC 105, 1952 SCR 202, 1955 Cr.L. Jour 644). In view of what has been mentioned hereinabove it hardly matters as to whether the charge was improper or all the particulars were not mentioned therein because no prejudice whatsoever has'been caused to the petitioner and the nature of accusation has been mentioned in a categoric manner in the charge eliminating the possibility of any confusion or prejudice.
' The upshot of the above discussion is that the prosecution has established the guilt to the hilt. No illegality or infirmity whatsoever has been committed either by the trial Court or learned High Court.
The judgment impugned being well-based does not warrant interference. The petition being devoid of merit is dismissed and leave refused.