' AFTAB AHMED GORAR. J.--The appellant was tried by the learned Additional Sessions Judge Shandadpur and was convicted and sentenced under section 420, P.P.C. To suffer R. I. For 7 years and to pay fine of Rs,20,000, under section 466, P.P.C.. To suffer R.I.For 7 years with fine of Rs,20,000, under section 467 to suffer R.I. For 10 years and to pay fine of Rs,50,000, under section 471, P.P.C. To suffer R.I. For 10 years and to pay fine of Rs,50,000, under section 468 to suffer R.I. For 7 years and to pay fine of Rs,20,000, and under section 474, P.P.C. To suffer R.I. For 7 years and to pay fine of Rs,30,000 in S.C. No,54 of 2011. In case of failure to pay fine, appellant was directed to suffer imprisonment for 60 days more. All the sentences were ordered to run concurrently.
2. Brief facts of the prosecution case are that on 27-4-2010 at 1600 hours, complainant Inspector Noor Muhammad Mari S.H.O. Police Station Shahpur Chakar lodged report with Police Station Shahpur Chakar on the directions of this court vide letter No,SH/Hyd/C.P.D 321/ 08/5404/2010 dated 21-4-2010 against the appellant Mir Faiz. Muhammad son of Mir Muhammad Bachal. According to F.I.R., the appellant in order to usurp the condemned Government machinery and iron lying near Jamrao Wah Shahpur Chakar, prepared false and forged documents and with fraudulent intent and used the same as genuine and also filed petition before the High Court of Sindh Circuit Court Hyderabad and has committed fraud, hence case was registered against him.
3. Formal charge under sections 420, 465, 468, 471, P.P.C. Was framed against the appellant at Exh.2 by the learned Magistrate, to which he did not plead guilty and claimed his trial vide his plea at Exh.3. Learned State counsel filed an application under section 227, Cr.P.C. For alteration of the charge by adding sections 466 and 467, P.P.C., which was allowed vide order dated 14-3-2011 and consequent thereupon the case was sent up to the learned Sessions Judge, Sanghar, wherefrom it transferred the same to learned Additional Sessions Judge Sanghar. Charge against the appellant was again framed at Exh.5 to which he pleaded not guilty and claimed his trial.
4. In order to prove its case, prosecution examined P.W.1. Muhammad Naeem at Exh.7. He produced attested copy of letter dated 2-2-2009 at Exh.7/A, attested copy of letter dated 6-2-2009 at Exh.7/B, copy of order in Constitutional Petition No,321 of 2008 at Exh.7/C, copy of letter dated 9-2-2009 at Exh.7/D, copy of letter dated 4-2-2009 addressed to the Additional Registrar of this court at Exh.7/E, copy of letter sent to Executive Engineer by the Additional Registrar of this court as Exh.7/F.
Prosecution further examined P.W.2 Saleem Ahmed. He produced copies of orders passed in Constitutional Petition No,D-321 of 2008 at Exhs.8/A and 8/B, certified copy of inquiry report submitted by learned Sessions Judge, Hyderabad at Exh.8/C. P.W.3 Hidayatulah was examined at Exh.9. He produced mashirnama of site inspection at Exh.9/A. P.W.4 Muhammad Mora was examined at Exh.10. P.W.5 complainant Inspector Noor Muhammad was examined at Exh.11. He produced copy of letter of DPO dated 23-4-2010 at Exh.11/A and copy of order of letter of this court dated 21-4-2010 at Exh.11/B, F.I.R. At Exh.11/C. P.W.6 Nooruddin was examined at Exh.12. He produced mashirnama of documents as Exh.12/A, specimen signature of Naeem Barkzai at Exh.12/B, mashirnama of documents at Exh.12/C, copy of letter dated 10-10-2008 allegedly written and signed by the Assistant Registrar of this court as Exh.12/D. Prosecution lastly examined Inspector Sher Bahadur A fridi at Exh.13. He produced letter of S.P. Investigation as Exh.13/A and then closed its side.
5. The statement of accused was recorded under section 342, Cr.P.C. At Exh.15, wherein he denied the prosecution allegations and pleaded his innocence. However, neither he examined himself on oath nor led any defence evidence.
6. The learned trial Court after hearing the parties and appraising the evidence convicted the appellant as mentioned above.
7. Learned counsel for the appellant at the very outset, argued that the charge framed by the learned trial Court is defective as the required particulars of the alleged offence were not mentioned therein. He further contended that the charge does not contain, the alleged date and time as well as place of alleged occurrence, therefore, it is a defective charge and conviction on such defective charge does not sustain. Learned counsel further argued that the impugned judgment is the result of misreading and non-reading of the evidence available on record. He submitted that the impugned conviction is totally based on hearsay evidence as none of the witness deposed that they saw the appellant while preparing the fake and forged documents. He contended that learned trial Court did not pin out the alleged additions or interpolation in the orders passed by this court in Constitutional Petition No,D-321 of 2008. Learned counsel further raised a legal plea that the evidence brought on record by the prosecution was not put to the appellant in his statement under section 342, Cr.P.C, which is a mandatory requirement of law. He further argued that the alleged forged documents were not produced in original before the trial Court to substantiate allegation against the appellant. He contended that the enquiry conducted by the learned Sessions Judge could not be used as evidence against the appellant as it was an ex parte and no opportunity was provided to the appellant to cross-examine the witnesses examined therein. He again referred to the statement of the appellant under section 342, Cr.P.C. And contended that no question with regard to the enquiry report of learned Sessions Judge was mentioned to put the same to the appellant to explain the same. Learned counsel added that even the persons, whose signatures were allegedly forged by the appellant were not examined by the prosecution in order to verify their alleged forged signatures. Even such signatures were not sent for expert opinion and in absence of such expert opinion, the alleged signatures could not be held to be forged. Learned counsel submitted that since charge was defective, no strong evidence has been produced against the appellant and the statement under section 342, Cr.P.C. Also was not recorded in accordance with law, therefore, the appellant is entitled to be acquitted. In support of his arguments he has relied upon the case of Habibullah alias Bhutto and 4 others v. The State (PLD 2007 Karachi 68), Jehandad v. The State (PLD 1994 Peshawar 279), Nazir Ahmed and others v. The State (PLD 2005 Karachi 18), Jan Muhammad v. The State (2004 PCr.LJ 1412), Habib Ahmed v. The State (1996 PCr.LJ 1783), Bashir Ahmad and 2 others v. The State (PLD 2008 Lahore 146), Muhammad Yasin and another v. Additional Sessions Judge, Okara and 2 others (2007 PCr.LJ 799).
8. On the other hand, learned Assistant Prosecutor General Sindh supported the impugned Judgment and argued that prosecution has proved its case beyond shadow of doubt. He argued that the appellant not only prepared fake letters of the officers of the Irrigation Department but also manipulated the orders of this honourable Court and the copies of the letters as well as orders of this court were produced in evidence. He argued that the prosecution has proved its case against the appellant and his conviction does not suffer from any illegality or infirmity.
9. I have heard the learned counsel for the parties and examined the record carefully. The main crux of the arguments of learned counsel is that the charge framed against the appellant by the learned trial Court is defective. In this respect, he has submitted that no required particulars were mentioned in the charge, which is the first notice of the offence to the appellant in order to defend his case. For the sake of convenience section 222, Cr . P. C . Is reproduced as under:- "Particulars 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 reasonable 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 which 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; ' Provided that the time included between the first and last of such dates shall not exceed one year".
The learned trial Court has framed charge against the appellant under sections 420, 466, 467, 468, 471, 474, P.P.C. The bare perusal of the charge Exh.5 does not show, the alleged date, time and manner in which the accused cheated, prepared forged documents and used the same as genuine. It is mandatory that the charge shall contain all the material particulars as to time, place so also specific name of alleged offence in order to afford opportunity to the accused to explain the matter with which he is charged and to prepare his defence as the charge is the first notice to the accused for his trial. It appears that the learned trial Court has not framed the charge in accordance with the provisions of section 222, Cr.P.C.
10. The second plea of the learned counsel for the appellant is that the statement under section 342, Cr.P.C. Also does not contain the material questions with regard to the evidence produced by the prosecution and used against the appellant. I have also perused the statement of the appellant recorded under section 342, Cr.P.C. And observe that the same is also not in accordance with law and the learned trial Court has mere reproduced the charge as question No,
1. No other question with regard to the production of the fake and forged documents by the appellant as well as inquiry report produced in evidence was well as the mashirnamas, has been mentioned in the statement under section 342, Cr.P.C. From the examination of the statement, it appears that the learned trial Court did not go through the evidence brought on record so as to put questions to the accused on incriminating facts brought in evidence, enabling the appellant to explain the circumstances appearing in the evidence against him. It was mandatory upon the learned trial Court to frame charge against the appellant in accordance with law by incorporating the necessary particulars as envisaged under section 222 Cr.P.C. And to put the questions about evidence came on record, in his statement under section 342, Cr.P.C. But same was not done.
Learned Assistant Prosecutor General has also conceded this position to the effect that the charge as well as statement of the appellant under section 342, Cr.P.C. Have not been recorded by the learned trial Court in accordance with law.
11. I am fortified with the case-laws submitted by the learned counsel for the appellant wherein on account of non fulfilment of provisions of law while framing charge as well as recording evidence, the matters were remanded to the learned trial Court for disposal of the case in accordance with law. I need not to discuss each case separately as all the cases are on the same point of non- compliance of relevant provisions of law while framing charge and recording statement of the accused respectively. I find this case fit for remand because of non-compliance of relevant provisions of law while framing charge and recording statement of accused under section 342, Cr.P.C. Respectively.
' In the case of Muhammad Yasin and another v. Additional Sessions Judge Okara and 2 others (supra), it was held that the trial Court had failed to frame charge in accordance with the provisions of section 222, Cr. P. C . ---While framing charge under section 420, P.P.C. Trial Court had not mentioned the manner in which the accused had cheated the complainant. Charge framed against the accused must have contained all the material particulars as to time, place, specific name of the offence, manner in which the offence was committed and the particulars of the accused, in order to afford them opportunities to explain the matter with which they were charged and to prepare their defence at the commencement of the trial. It was held that trial Court in not framing the charge according to section 222 Cr.P.C. Had committed material error, whereby accused had been misled which had occasioned failure of justice. In said case, Judgment was set aside and case was remanded to trial Court for decision afresh on merits in accordance with law after a valid charge.
12. For the foregoing reasons, I dispose of this appeal, set aside the, impugned Judgment and remand the case to the learned trial Court with direction to frame the charge strictly in accordance with section 222, Cr.P.C. By incorporating all necessary particulars. After recording evidence, record statement of appellant under section 342, Cr.P.C. Putting all the material brought in evidence by the prosecution in order to afford him an opportunity to explain about the same and thereafter pronounce judgment on merits in accordance with law. However, looking to the fact that the matter pertains to the year 2008 and the appellant is behind the bars, learned trial Court is directed to decide the same expeditiously within short possible time.