' RAJA MUHAMMAD KHURSHID KHAN, ACTG. C. J.-This appeal which has come second time before this Court seeks to impeach the judgment of the learned Disqualification Tribunal No, 3 with Kh.
Aziz-ud-Din, District and Sessions Judge, as Chairman and Ch. Muhammad Rashid, a Magistrate 1st Class as its member, passed on 23-6-1980. By this order the appellant, under the provisions of the Holders of Representative Offices (Disqualification) Ordinance, 1979, was found guilty of misconduct for wilful misapplication and diversion of public money in consequence of which he stood disqualified to hold a public office of any kind for seven years.
2. The referring Authority, i,e,, Chief Secretary of the Government, moved three references against the appellant on 1-11-1978, 8-12-1978 and 22-1-1979, respectively. Charges levelled against the appellant in the first and second reference were held by the Tribunal as unproved, therefore, they need not be recapitulated here. Reference No, 3 contained three charges out of which only Charge No, 3, which is to the effect that the appellant received an amount of Rs, 10,000 from the Government funds for the completion of a scheme of water supply at Hariala, District Muzaffarabad, but out of the amount he has only spent an amount of Rs, 5,700 for the purpose and the remaining amount of Rs, 4,300 despite demand, having been not returned, was held to have been proved by the Referring Authority and the appellant is found guilty of misconduct for the wilful misapplication and diversion of public money.
3. The appellant controverted the charge with the plea that he has spent the whole amount towards the work but some material available at the site has not been taken into account towards the expenditure by the authorities concerned and the charge thus, being misconceived and ill- founded, cannot be sustained.
4. In support of the charge the Referring Authority has examined for witnesses, namely, Qazi Faizyaab, Deputy Director, Local Government and Peoples Works Programme, Mirza Muhammad Akram, Assistant Director, Local Government and Peoples Works Programme, Muhammad Tufail Overseer, Local Government and Syed Sarfraz Ali Shah, Assistant Engineer, Local Government. Qazi Faizyaab's evidence is that during the years 1975-76, for water supply scheme Hariala, an amount of Rs, 10,000 was entrusted to Ch. Raj Muhammad, M. L. A. But the scheme remained incomplete and the Assistant Director, Local Government, to assess the amount actually spent on the scheme, deputed an Overseer who, after inspection of the spot, submitted the report- that only an amount of Rs, 5,700 was spent towards the scheme and remaining amount of Rs, 4,300 remains with the appellant. The appellant, according to him, despite notice failed to pay back the amount. Mirza Muhammad Akram, P. W., also supports him to say that an amount of Rs, 10,000 for completion of the scheme, was given to the appellant as Project Leader but as per report of the Overseer and Nasir-ud-Din, Secretary, Union Council `Kai-Manja' only an amount of Rs, 5,700 was spent on the scheme and the remaining amount of Rs, 4,300 is still outstanding against the appellant.
Muhammad Tufail, Overseer, and Syed Sarfraz Ali Shah are in line with the evidence of Qazi Faizyaab and Mirza Muhammad Akram.
5. As said at the very outset this appeal before us is second of its nature. The Disqualification Tribunal, earlier to the impugned judgment, on 21-6-1979, found the appellant guilty of misconduct on the above-mentioned charge but upon an appeal to this Court on 27-10-1979 the order was discharged and the to the Disqualification Tribunal for retrial with the direction that the decision may be made afresh after examining Anwar Shah, Deputy Director, Local Government, on whose direction Nasirud-Din, Secretary, Union Council, is stated to have inspected the spot and made a report that material worth Rs. 4,230 was available at the site and for whose evidence a request, though turned down by the Disqualification Tribunal, was made by the appellant. The evidence of Anwar Shah has been recorded by the Tribunal but another aspect of the case, as would be dealt with presently, despite clear direction of this Court has not been attended.
6. Apart from the evidence of Anwar Shah in view of the fact that none of the witnesses specify the time during which the appellant was required to complete the work, the Tribunal was also required to determine the question as to whether without an agreement or undertaking specifying the time during which the work was to be completed, the appellant can be held guilty of misconduct. The relevant passage on the point appearing at page 3 of the judgment reads as under :- "It may be stated that none of the witnesses gives the time during which the appellant was required to complete the work. Without such an agreement or undertaking, can the appellant be guilty of misconduct, is a question which in or view requires consideration. But as we have decided to remand the case on another ground we decline to express ourselves on this aspect and leave it to be decided by the Tribunal.
7. It appears that the aspect of the case referred to above in para. No. Of the judgment escaped the notice of the Disqualification Tribunal and thus remained unresolved. Raja Muhammad Akram Khan, the learned Advocate General, frankly conceded that failure to determine the point is fatal and warrants quashment of the order and remand of the case for decision afresh.
8. The question whether there should be a remand is a matter of judicious discretion of the Court which is to be exercised in accordance with the dictates of justice. The nature of the error committed, the magnitude of the miscarriage of justice, the possibility and extent of prejudice to the persons charged against are all relevant factors to be duly weighed for retrial and remand. As a general rule an order for retrial would be proper where the trial in the lower Court has been illegal, irregular or otherwise defective. In this case we entertain the belief that great prejudice to the appellant has been caused by ignoring the direction of this Court to decide the issue as to whether without a period specified in the agreement, the appellant can be held guilty of misconduct. The decision on this point may tilt the scales of justice in favour of the appellant. We, therefore, agreeing with the learned Advocate-General feel advised to remand the case to the Disqualification Tribunal for deciding it afresh.
' In view of the above, we feel constrained to discharge the order passed by the learned Tribunal dated 23-6-1980 and remand the case once again to the Disqualification Tribunal with the direction that the case may be decided afresh in accordance with the observations made at page 3 of the judgment of this Court dated 27-10-1979, referred to above.