ZULFIQAR ALI SANGI, J. Through instant petition the petitioners, being aggrieved and dissatisfied with the impugned order dated 25.10.2019 in Reference No.11 of 2005 passed by the Accountability Court No.IV Sindh at Karachi, have sought declaration to the effect that since the offences under sections 9(a)(ix) and 9(a)(x) of National Accountability Ordinance, 1999 after substitution of the previous offence as it stood being separate and distinct offences cannot be charged together being exclusive of each other and a direction may be issued in the shape of mandate to the respondent to apply the correct law, change and alter the charge.
2. The relevant facts of the case as per reference are that on 28.7.1992, the petitioner Mian Abdul Jabbar and accused Sultan Ahmed Sani established a partnership deed which was also registered with the Registrar of Firms Karachi. After 1992, many changes were made in the partnership and the accused/ petitioners remained partners from time to time. The owners of Messrs Jason Builders had undertaken a construction project known as 'Jason Beach View'. On receipt of complaint that accused made fake bookings for shops and apartments to the public at large for monetary consideration on the false pretext for constructing the same on ground and fourteen floors, whereas the approved plan was on ground and four floors only, an investigation was authorized by NAB. The I.O. submitted his investigation report. It is stated that according to his investigation the said firm had been granted approval for construction of ground and four floors only by the KDA vide approval dated 15.03.1993 but up till December, 1993 the work on the ground floor had not even started. Thereafter, vide letter dated 08.12.1993, accused Sultan Ahmed Sani also gave an undertaking on behalf of the firm that the construction will be carried out according to the approved plan. It is alleged that the accused intended to cheat the public at large which is established by the fact that the accused actually booked 148 shops on the ground floor instead of the permitted 18 shops and similarly they booked 753 flats against the permitted 131 flats. The deception practiced by the petitioners/accused is also established by the fact that they allowed the general public to believe that they were constructing 14 upper stories when all along it was in their knowledge that they could construct ground and 4 upper stories only. In this way the petitioners/accused actually collected Rs.10,81,11,413/- against these booking up to 22.03.2000. It is further alleged that they returned Rs.1,88,28,842/- to some allottees or adjusted by handing over flats and shops in other projects whilst the project in hand was never completed. It is averred that during investigation efforts were made to obtain relevant record of the project from the Builders but they deliberately avoided to deliver the same and instead shifted the record from the known office situated at Jason Trade Centre, 39-A/ 1, Block-6, PECHS, Karachi. During investigation information was received that the relevant record was hidden in house No.171, PECHS, Karachi as such a search warrant was obtained from the Magistrate, the said house was searched from where 651 files of the project were recovered along with other record which was seized under a memo in presence of witnesses. The petitioners/ accused realizing the consequence came forward and handed over 250 more files. It is alleged that during investigation on the basis of the said record, 150 allottees were located and their statements were recorded in which they all confirmed that they got booked flats and shops in Jason Beach View Project for which they had deposited huge amount in installments and despite lapse of many years the builder (accused) neither completed the project nor gave possession or returned their amount. This aspect of the matter clearly establishes that the petitioners/accused were legally entitled to construct ground and four upper storeys only as approved by KDA but they illegally charged booking amount from the public at large for ground and 14 upper stogeys. An amount of Rs.8,92,82,571/- is still outstanding against accused and they have failed to return the same to the affectees. It is further alleged that the evidence collected during investigation establishes that the accused had criminal intent to cause wrongful gain for themselves and corresponding wrongful loss to the public at large. The petitioners/accused committed the offence of cheating and criminal breach of trust as defined in sections 415 and 405, P.P.C. and thereby dishonestly induced members of the public at large to deposit or entrust the money to them. By corrupt, dishonest or illegal means, the petitioners / accused obtained for themselves pecuniary advantage. They thereby committed the offence of corruption and corrupt practices as defined in clauses (iv), (ix) and (x) of section 9(a), punishable under section 10(a) of the National Accountability Ordinance 1999 and Schedule thereto. After completing the investigation a reference against the petitioners was filed and is pending adjudication before the Accountability Court No:IV Karachi, Sindh, where an application under section 227, Cr.P.C. was filed on behalf of the petitioners and the same was dismissed by the trial court vide order dated:25-10-2019.The petitioners challenged the same through instant petition.
3. Learned counsel for the petitioners contended that the case of the prosecution is that after the approval of construction of the project known as Messrs Jason Beach View in the year 1992, the construction in violation of the approved plan was undertaken and publicity was made for booking of flats/shops; that as per Investigation Report (IR), the period for booking was from 03.03.1993 to 27.01.1996; that investigation was conducted only for the period from 1993 to 1996 by the investigating officer; that petitioner became partner in the firm later on and was not partner from 1993 to 1996; that petitioner could not be implicated in the alleged misconduct/ defalcation amounting to cheating which had occurred in the past and his involvement is in violation of law; that the charge framed on 26.11.2011 is not clear and is confusing in nature as the affectees who have allegedly been cheated/breach of trust committed have not been shown in the charge, the same requires amendment/alteration. He further contended that the offences of cheating and breach of trust as defined under section 9(a)(iv)(ix) and (x) of the National Accountability Ordinance, 1999 are distinct offences, therefore, the provision of section 233, Cr.P.C. will be applicable in this case and the charge so framed is jumbled and law requires separate distinct offences to be separately, tried to exactly know the allegation against them and offences allegedly committed by them. He further contended that his application under section 227, Cr.P.C. was wrongly rejected by the trial court; that the trial court has not applied judicial mind while deciding the application under section 227, Cr.P.C. Lastly, he prayed that the impugned order dated 25.10.2019 may be set-aside and trial court may be directed to amend/alter the charge. He relied on the cases of Muhammad Muzammil Ali v. A. F.M.A. Majid, Special Magistrate (Food) Sylhet (PLD 1960 Dacca 943), Becharam Mukherji v. Emperor and another (AIR (31) 1944 Calcutta 224), Emperor v. John McIver (AIR 1936 Madras 353) and un-reported order dated 23.08.2007 passed by this Court in C.P. No. D-2316 of 2006 (Abdus Sattar Khan v. Abdul Hafeez Siddiqui and others).
4. Learned Special Prosecutor, NAB, contended that learned trial court has passed a well-reasoned order while rejecting the application under section 227, Cr.P.C. filed by the petitioners; that proper charge was framed against the petitioners by the trial court. He further contended that after framing the charge prosecution examined about 63 witnesses and produced documentary evidence; that petitioners being partners of Messrs Jason Builders illegally booked 148 shops on ground floor and 753 flats in thirteen upper floors in the project of Jason. Beach View situated at Clifton Karachi from 03.03.1993 to 27.01.1996, whereas, the KDA approved their plan with ground plus 04 upper floors only which consists upon 18 shops and 131 flats only: that the NOC for sale was also suspended by the KBCA on 22.10.1993 due to violation of said approved plan; that accused persons have committed the offence and dishonestly received an amount of Rs.10,81,11,413/- from the allottees against bogus booking of shops and flats and have committed the offence of corruption and corrupt practices as defined under section 9(a) (iv) and (ix) of the National Accountability Ordinance, 1999. Lastly, he prayed that the petition filed by the petitioners may be dismissed.
5. We have heard learned counsel for the parties and have gone through the material available on the record so also the relevant law including that cited at the bar with the able assistance of the parties.
6. There is no cavil to the proposition that charge once framed would not become rigid or irrevocable it can be altered or changed if it is so warranted by the circumstances. The provision/powers for alteration/amending the charge is provided in the Criminal Procedure Code, 1898 and defined under section 227, Cr.P.C. It would be advantageous to reproduce section 227, Cr.P.C., which reads as under: "227. Court may alter charge.
(1) Any Court may alter or add to any charge at any time before judgment is pronounced I J.
(2) Every such alteration or addition shall be read and explained to the accused."
A bare reading of the above Section reveals that there is no bar on the trial. court to reframe/alter/amend the charge at any stage of trial before pronouncement of judgment.
7. The main contention of the learned counsel for the petitioners is that section 9(a)(iv) and section 9(a)(x) NAO are distinct offences and are mutually exclusive of each other, therefore, a separate trial is required and a combined charge cannot be framed and the charge framed by trial court needs to be altered. We find such contentions to be without force as the allegations against the petitioners as per reference are that they in connivance with each other made booking and received amount from innocent people and announced their project in violation of the rules and regulations, cheated the public at large with dishonest intention hence committed all the offences in one series. For ready reference,' sections 9(a)(ix) and 9(a)(x)_ are reproduced as under: "9 (a) A holder of a public office, or any other person, is said to commit or to have committed the offence of corruption and corrupt practices?
(ix) if he commits the offence of cheating as defined in section 415 of the Pakistan Penal Code, 1860 (Act XLV of 1860), and thereby dishonestly induces members of the public at large to deliver any property including money or valuable security to any person; Or
(x) if he commits the offence of criminal breach of trust as defined in section 405 of the Pakistan Penal Code, 1860 (Act XLV of 1860) with regard to any property' including money or valuable security entrusted to him by members of the public at large"
8. We have carefully examined Section 233 of the Criminal Procedure Code, 1898 which is reproduced as under: "233. Separate charges for distinct offences. For every distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately, except in the cases mentioned in sections 234, 235, 236 and 239."
On a bare reading of Section 233 supra we found that it excluded the cases mentioned in sections 234, 235 and 239 of the Cr.P.C., whereas in the present case section 235 is applicable which reads as under: "235. Trial for more than one offence. (1) If, in one series of facts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence.
(2) Offence falling within two definitions. If the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the person accused of them may be charged with, and tried at one trial for, each of such offences.
(3) Acts constituting one offence, but constituting when combined a different offence. If several acts, of which one or more than one would by itself or themselves constitute an offence, constitute when combined a different offence, the person accused of them may he charged with, and tried at one trial for, the offence constituted by such acts when combined, and for any offence constituted by anyone, or more, of such acts.
(4) Nothing contained in this section shall affect the Pakistan Penal Code, Section 71."
9. The object of the charge is to inform the accused precisely and concisely of the nature of the offence for which he is charged. The rational for laying down detailed procedure for framing of the charge is that the accused should know nature of accusation against him so that he may be put on notice at the start of the trial of the allegations against him so that he may put up a solid defence to the offence so charged and ensure that he is not misled by vagueness in the said accusation. The spectrum of charge should be that all eventualities and exigencies till conclusion of trial can be made with caution that no prejudice is caused to accused. For reference section 222, Cr.P.C. is reproduced as under: "222. 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 reasonably 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 speck 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."
10. In the present case the prosecution has already examined 63 witnesses who were cross- examined by the defence counsel and after closing side of prosecution, statements under section 342, Cr.P.C. of the petitioners were recorded, final arguments on behalf of petitioner Mian Abdul Samad were already completed before the trial court however the arguments on. behalf of Mian Abdul Jabbar are proceeding. In the above circumstances it is quite clear that the petitioners/accused knew the nature of the charge for which they had to defend themselves as the trial is now almost finished. Had the petitioners had any doubt about what charge they had to defend themselves against they would not have been able to cross-examine the B witnesses and would have raised this matter much earlier rather than at the fag end of the trial. Instead the fact that the petitioners/accused were able to cross-examine all 63 witnesses fully shows that the charge was clear and unambiguous and they had been put on notice as to the allegations against which they had to defend themselves (and have defended themselves).
11. We notice that the reference was filed in the year 2005 and about 15 years have passed and the same has still not yet been decided and in our view this belated petition is a further delaying tactic on the part of the petitioners.
12. In conclusion, we carefully examined the charge framed by the trial court and found no illegality or any violation of provisions of Cr.P.C. in respect of the same. Furthermore the order passed by the trial court is well reasoned and does not require any interference by this court.
13. Based on the above discussion, we uphold the order dated 25.10.2019 passed by the Accountability Court No. IV Sindh at Karachi, while dismissing the instant petition.
14. The office shall fax a copy of this judgment to the concerned trial court which is free to pronounce its judgment in the reference.