' SYED MUHAMMAD KAZIM RAZA SHAMSI, J.---Muzammal Hussain, Khalid Mushtaq, Usman Siddique, Muhammad Nasir Makhdoomi alias Nasir Butt, Anjum Majeed, Asghar Ali and Muhammad Aslam, have faced trial in case F.I.R. No.31 dated 4-5-2010, registered under sections 409, 420, 468, 471, P.P.C. Read with section 5 of the Prevention of Corruption Act, 1947 with Police Station Anti- Corruption Establishment Region Faisalabad and at the conclusion of the trial, first five persons were convicted in the manner stated in the judgment impugned in the appeals while Asghar Ali and Muhammad Aslam were acquitted from the charge. Muzammal Hussain and others feeling aggrieved by their conviction and sentence have challenged the same in four separate appeals bearing Criminal Appeal No.541 of 2012, Criminal Appeal No.436 of 2012, Criminal Appeal No.621 of 2012 and Criminal Appeal No.622 of 2012. Since, in all the appeals common judgment has been impugned, therefore, are being taken up together and decided by this single judgment.
2. The criminal machinery was set into motion by Administrative, Iqbal Town, Faisalabad by writing a letter to District Coordination Officer, Faisalabad regarding illegal payments in respect of four development schemes with the assertions that the amounts disbursed to the accused persons for undertaking the work in the schemes was embezzled and in fact no work was carried out by them at the sites, thus he recommended for registration of case against the appellants and two acquitted accused persons. On this recommendation, Muhammad Khan, Head Constable of Anti- Corruption Establishment had recorded F.I.R. Exh. PK/1.
3. Formal investigations in the case were carried out by the relevant authority and recommended the prosecution of all the appellants along with the acquitted accused by submitting report under section 173, Cr.P.C. To the court and the learned trial court after conducting the trial proceedings convicted and sentenced the appellants in the terms specified in the impugned judgment.
4. The learned counsel for the appellants at the start of the arguments has preferred to make his submissions on the technical defects with which the impugned judgment as well as the trial proceedings suffer and has sought decision of this court on these points. Perhaps, he is willing to make his submissions on merits also if the objections raised by him are not sustained. First of all, learned counsel has referred to the form of charge framed by the learned trial Court against the appellants and submitted that it is a novel form of the charge in which the appellants have not been confronted with the precise allegation of what they had done thus termed it joinder of charges without specifying as to which accused had performed what criminal act in the matter. He has also referred to Para-32 of the impugned judgment with the submissions that the appellants were never charged for the offence falling under section 9 of the Pakistan Criminal Law Amendment Act, 1958 nevertheless the appellants were convicted and sentenced under that offence. Same is the position with Para-39 of the impugned judgment where again the appellants were convicted under Act ibid without framing any charge in this respect. Thereafter, the learned counsel has referred to the statements of P.W.1, Ghulam Rasool, ASI and P.W. Muhammad Khan, Head Constable, Anti-Corruption Establishment, Faisalabad and submitted that the right of examination upon the statements made by both the witnesses was reserved in respect of the accused but thereafter they were not provided any opportunity to cross-examine the witnesses thus the argument of learned counsel is that these statements of P.W.1 and P.W.2 cannot be treated as evidence. Again, learned counsel while referring to the statement of P.W.6 recorded in vernacular has pointed out that the court itself did not record statement of the witnesses rather note has been given thereunder that the statements were written on his dictation but no certificate as required by section 364, Cr.P.C. Has been provided thereon, thus on the basis of these statements, conviction recorded by the learned trial Court against the appellants suffer from illegality. Similarly, while referring to the statement of accused recorded under section 342, Cr.P.C., it is the submission of the learned counsel that all the documentary evidence has been confronted to all the appellants jointly without specifying as to which document relates to which accused, therefore, there is procedural lapse committed by the learned trial Court in this respect. The learned counsel while summing up his arguments has reached at a conclusion that the proceedings taken by the learned trial Court and thereupon the judgment pronounced against the appellants is based upon such illegality which has vitiated the proceedings, -thus prayed for acquittal of the appellants from the charges.
5. Conversely, the learned Deputy Prosecutor-General while controverting the arguments has relied upon the case reported as "Mst. Kausar Bibi v. The State" (2011 PCr.LJ 1495) has submitted that mere wrong form of the charge or non-framing of the charge does not vitiate the proceedings of the trial. While elaborating his arguments, it is submitted by the learned DPG that the appellants being conscious of the charges had defended the case before the learned trial Court, therefore, if relevant charge has not been framed against them, they are not prejudiced from this act of the court. He further added that the appellants had never raised any objection at the appropriate stage in this respect, therefore, now they are estopped by their conduct from assailing their conviction. The learned DPG has prayed for dismissal of the appeals.
6. Parties have been heard and record has been perused.
7. The judgment cited at the bar by the learned Deputy Prosecutor-General, I am afraid is not relevant for the purposes of appeals in hand as the judgment in hand was given by this court in a murder case where on the pointation of the appellant, Mst. Kausar Bibi, dead body was recovered and then she was charged under section 201, P.P.C. Which charge was not framed initially against her during the trial but in the case in hand it is a matter of quasi criminal nature in which dead body is not to be recovered rather the liability of the appellants in respect of the embezzled amount was to be determined coupled with their criminal intent forgering the documents was to be digged out, as such, the case law is distinguishable from the facts of the instant case. The objections raised by the learned counsel for the appellants have minutely been gone through and it is found that the case of the appellants was prejudiced and they were condemned unheard when some of the appellants were not afforded right to cross-examine the witnesses. Without such exercise of the right, the statements given by P.W.1 and P.W.2 cannot be termed as legal evidence rather the status of these statements would remain as simple statements which statements cannot be made basis for the conviction of any person. Similarly, it is true that by non-framing of the charge, no prejudice is caused to the accused but simultaneously, it is the requirement of law that each and every fact leading to the criminal action taken by a person is to be alleged against him with reference to the sections under which that act has become punishable, thus by not charging the appellants according to the acts performed by them and covered by the penal provisions, grave injustice has been done to the appellants. Again, the learned trial Court appears to be not conscious of the fact that a certificate of its inability is mandatory requirement of law when the court itself did not record the evidence. Similarly, the appellants were confronted with the documentary evidence jointly which confrontation shows that all the documentary evidence available on the record was confronted to each of the appellants irrespective of the fact whether that document was related to that accused or not. It was to be kept in mind by the learned trial Court while confronting the evidence to the appellants that there were four schemes which were to be executed regarding which the funds, were released but misappropriated and all the schemes were not to be executed by all appellants rather distinct work were allocated to them who would be liable for the work allocated to them and was not performed by them rather the funds issued under that scheme were allegedly misappropriated by that person. After noting down these defects in the conduct of the trial, the question arises whether such defects tantamount to irregularities which could be cured or that amounts to illegality vitiating the trial. After examining the pros and cons of the situation, I am of the candid view that the defects pointed by the learned counsel, in fact are procedural irregularities committed by the learned trial Court in conducting the trial which are curable and can be cured. When this conclusion has been drawn that the defects are curable irregularities and not illegalities vitiating proceedings then there is no other option except to remit the case to the .Learned trial court for conducting the de novo trial.
' In view of the above, all the appeals are allowed and convictions and sentences recorded against the appellants are set aside with the direction to the learned trial Court to commence the trial afresh and decide the case in accordance with law. The sentence of Usman Siddique, appellant was suspended by this court vide order dated 28-3-2012 whereas the remaining appellants are still languishing in jail who as consequence of annulment of conviction and sentence, are admitted to post-arrest bail on furnishing of bail bonds in the sum of Rs.100,000 (Rupees One hundred thousand only) each with one surety each in the like amount to the satisfaction of learned trial Court. Usman Siddique shall also furnish fresh bail-bonds before the learned trial Court and bail- bonds furnished in the office of this court are cancelled and surety is relieved of his liability. The learned trial Court is further directed to conclude the trial of the case expeditiously, preferably within the period of three months from the date of receipt of order of this court even if it has to take proceedings in the case on day-to-day basis. After conclusion of the trial, the trial Court shall transmit a report to this court through Deputy Registrar (Judicial).