' MEHMOOD MAQBOOL BAJWA, J.---Appellants in both the appeals question the legality and validity of judgment dated 7th of August, 2007 handed down by the learned Judge Accountability Court No.V, Lahore whereby after conclusion of trial in Reference No.3 of 2005, conviction was recorded against the appellants, under sections 468, 471 of The Pakistan Penal Code, 1860, as well as clause 12 of The Schedule and section 10(b) of The National Accountability Ordinance, 1999 (Ordinance XVIII of 1999) (hereinafter called Ordinance XVIII of 1999) and were awarded sentences of imprisonment and tine besides disqualifying them to hold public office for a period of 10 years.
2. Since both the appeals have been preferred against one and the same judgment, therefore, we intend to dispose of both appeals through this consolidated judgment.
3. Initially two crime reports bearing F.I.R. No.714 of 2002 and 365 of 2002 were registered against Mumshad Nadeem (appellant) under sections 409, 419, 420, 467, 468, 471 of The Pakistan Penal Code, 1860, read with section 5 of The Prevention of Corruption Act (II), 1947. Allegation in brief against the said appellant being. Sub-Accountant, Treasury Office was embezzlement of amount and holding of assets beyond his ostensible resources.
' Cognizance was ultimately taken by The National Accountability Bureau (Hereinafter called The NAB).
' During the course of investigation, Muhammad Amanullah, Muhammad Ishaque, Muhammad Arif Jan and Sh. Javaid Hassan (appellants in Criminal Appeal No.1001 of 2007) were also found involved in the scam and supplementary Reference was submitted to their extent.
4. After conclusion of trial, judgment of conviction was recorded against all the appellants.
5. Though conviction was assailed on legal as well as factual premises but the learned counsel for the appellants in Criminal Appeal No.1001 of 2007 at the very outset has drawn our attention to a legal infirmity contending that the whole incriminating evidence led by the prosecution was not put to the appellants in their statements under section 342 of The Code of Criminal Procedure, 1898 (Act V of 1898) (Hereinafter called The Code) and as such the documents banked upon by the learned trial court to record conviction could not be taken into consideration.
' Elaborating the argument, referring to the discussion made by learned trial court at pages 18 and 19 of the judgment impugned, it was contended that learned Accountability Court referred to the different documents suggesting the involvement of the appellants in order to prove their culpability, but none of the documents was put to them in order to explain their position, causing serious prejudice to the case of appellants and as such judgment of conviction, is legally not sustainable. Help was sought from the dictum laid down in "Sher Muhammad Baloch v. The State and another" (2008 SCM R 32) and "Muhammad Shah v. The State" (2010 SCM R 1009).
6. Factual position explained by learned counsel for the appellants in Criminal Appeal No.1001 of 2007 could not be controverted by the learned Additional Deputy Prosecutor General.
7. Keeping in view the contentions of learned counsel for the appellants which were not controverted by the learned law officer representing the NAB, we have carefully gone through the evidence adduced by prosecution and statements of appellants in Criminal Appeal No.1001 of 2007 recorded under section 342 of The Code.
8. It is desirable to add that no such legal infirmity was pleaded by the learned counsel for the appellant in Criminal Appeal No.993 of 2007.
9. Perusal of page 18 of the judgment impugned reveals that the learned trial court has made reference to the documents Exh. P. W . 2-10 to Exh.P.W.2-41, Exh. P. W .2-162 to Exh.P.W. 2-167, Exh.P.W.2-199 to Exh.P.W.2-200, opining that the appellants initialed-signed these documents.
' Reference has also been made to commutation schedules/ advices (Exh . P. W . 2-162 to Exh. P. W .2-167 , Exh.P.W.2-199).
10. We have also gone through the statement of Syed Tariq Hussain, Assistant Accounts Officer (Pension) who produced document Exh.P.W.69-2 to Exh. P. W .69-51.
' Statements of Shamim Akhtar Zaidi, District Accounts Officer, Sahiwal (P.W.71) and Shaukat Ali, Inspector, HA (I.O.) (P.W.94) have also been examined who made reference to various documents including P.W.71-48, P.W.94-1 and 2.
11. Keeping in view the statements of witnesses and documents referred to, we have examined the statements of appellants recorded under section 342 of The Code.
12. Perusal of statement of Arif Jan, appellant clearly reveals that document Exh. P. W.2-10, Exh. P.W.
2-24 to Exh. P. W .2-41 P.W.2/162 to Exh.P.W.2/167, Exh. P. W .71/48, Exh.P.W.94-1 were not put to the said appellant.
' Though documents (Exh.P.W.2-10 to P.W.2-13) were put to appellant Muhammad Ishaque but he was not confronted with rest of the documents referred earlier.
' Statements of Aman Ullah and Sh. Javaid Hassan (appellants) also suffers from similar infirmity.
13. We specifically inquired from the learned law officer whether the documents referred to pertain to the culpability of all the appellants in Criminal Appeal No.1001 of 2007 who admitted the same without any hesitation.
14. Dealing with purpose and object of statement of accused under section 342 of The Code of Criminal Procedure, 1898 (Act V of 1898) the apex Court concluded in the case of "Asif Ali Zardari and another v. The State" (PLD 2001 SC 568) that underlying object of section 342 of The Code of Criminal Procedure, 1898 is to enable the accused to explain the incriminating circumstances in the prosecution evidence appearing against him.
15. Examination of the accused under section 342 of The Code is based on the principle of "Audi- Alteram Partem" and is not a formality keeping in view the use of expression "shall" in later part of subsection (1).
' The language, of provision under reference clearly demonstrates that whole incriminating evidence shall be put to the accused in order to rely upon the evidence, oral as well as documentary, to base conviction.
16. Same rule of law was enunciated by the Apex Court in "Sher Muhammad Baloch v. The State and another" (2008 SCM R 32) and "Muhammad Shah v. The State" (2010 SCM R 1009) relied upon by the learned counsel for the appellants.
17. Omission on the part of learned trial court has prejudiced the case of appellants in Criminal Appeal No.1001 of 2007.
18. However, the omission is an irregularity which will not vitiate the trial.
19. We are conscious of the fact that no such infirmity can be pointed out in the statement of Muhammad Mumshad Nadeem (appellant in Criminal Appeal No.993 of 2007) but nevertheless, his case cannot be examined on merits in view of legal infirmity in the judgment impugned to the extent of four appellants-convicts.
20. Pursuant to above, there is no option with us but to accept both the appeals, as such while setting aside the judgment handed down on 7th of August, 2007 by the learned Accountability Court No.V, Lahore, matter is remanded to the learned Accountability Court No.V with the direction to re-record the statements of appellants in (Criminal Appeal No.1001 of 2007) under section 342 of The Code and then decide the Reference in accordance with law.
21. All the appellants in attendance before the court whose sentence was suspended are directed to appear before the learned trial court on 27th of January, 2015 who shall decide the case within two months from the date of appearance of appellants on the notified date.
22. Compliance report shall be sent to the Deputy Registrar (Judicial) for perusal of the Court.