' SA RDAR SAID MUHAMMAD KHAN, 3.-The accused appellant was convicted and was awarded sentence of fine of Rs, 25,000 by the Special Court under section 6 (5) of Public Office (Misconduct)
Ordinance, 1 in default of payment of fine the appellant has to undergo rigorous imprisonment for a term of six months.
2. The brief facts resulting in the present appeal are that the accused-appellant faced trial in the Special Court under the provisions of the Ordinance, known as the Holders of Representative Offices (Trial of Offences) Ordinance, 1978 (hereinafter shall be referred as the Ordinance), on various charges. He was exonerated from all the charges except the charge enumerated as charge No, 2 in the impugned judgment. For the sake of convenience the said charge is reproduced as under "2. That the accused after relinquishing the charge of Speaker, did not return the Government vehicle No, A. J. K. 3038 which was on Assembly pool and repeated communications on the subject also proved futile. The vehicle, thereafter, was found damaged in the year 1977 lying in front of Allied Bank Building Mirpur, the accused then was asked by the authorities to pay an amount of Rs, 22,900 as costs of vehicle, but he failed to make the payment."
3. As is evident from the charge that the allegation against the accused-appellant is that after relinquishing the office of Speaker he failed to return the Government vehicle No, A. J. K.. 3038, which was provided to him as Speaker of the Azad Jammu and Kashmir Legislative Assembly, despite various demands by the concerned authorities. Consequently, the said A vehicle, when it was in the use of the accused-appellant, met an accident and was badly damaged. The appellant was asked by the concerned authorities to pay Rs, 22,900 as the price, of the vehicle, but the accused failed to satisf the demand.
4. The findings of the Tribunal are that the accused-appellant after relinquishing the charge of the Speaker of the Azad Jammu & Kashmir Legislative Assembly retained the Car from 28-6-1975 to 7- 11-1975 when he was only a Member of the Azad Jammu & Kashmir Legislative Assembly and was not entitled to retain, the Government vehicle in that capacity. A perusal of the. Record reveals that there is overwhelming evidence in support of the allegation that the accused-appellant retained the aforesaid Government vehicle despite the fact that he with no more occupying the office of the Speaker and was only a Member of the Azad Jammu and Kashmir Legislative Assembly. A reference may be made to the statement of Mr. Ghulam Ahmed Abbasi and Khalil Ahmed Qureshi, who were examined by the prosecution and the documents exhibited as P. C., P. G., P. L. And P. N.
The allegation against the accused appellant mentioned above has been amply proved and in fact the learned counsel for the appellant did not assail the factual aspect of the findings of the trial Court so far as those pertain to the aforesaid allegation. The learned counsel simply assailed the impugned judgment on the ground that the accused-appellant could not be convicted for committing misconduct as a Member of the Legislative Assembly because he was not charged in terms that he committed misconduct by misusing his power and position as a Member of the Legislative Assembly, rather the learned counsel maintained, he was charged in the capacity B of the Speaker of the Legislative Assembly and Advisor to the Azad Jammu and Kashmir Council and the trial Court has given verdict that he cannot be tried and convicted for misconduct, if any, in the said capacities. The learned counsel has further argued that it was not mentioned in the complaint, filed by the State, that the accused-appellant committed misconduct by misusing his power and position as a Member of the Azad Jammu and Kashmi Assembly.
5. There is no controversy with regard to the fact that the office of the Speaker is not included in the definition of 'Holders of Representative Offices' and that the accused-appellant could also be not indicted for having committed misconduct in the capacity as Advisor to the Azad Jammu and Kashmir C Council, but the fact remains that the vehicle in question was retained by the accused- appellant from 28-6-1975 to 7-11-1975, despite various demands for its return. The accused- appellant had no legal justification to retain the said vehicle for his personal use after he had ceased to hold the office of the Speaker. A perusal of para. 2 ( c) of the complaint would reveal that the appellant took the vehicle after he relinquished the office of the Speaker without any legal justification. The complaint is not happily worded ; in para. 2 ( c.) of the complaint is mentioned that by taking away vehicle the the accused-appellant, who had been Speaker of the Azad Jammu and Kashmir Assembly and President of the Azad Jammu and Kashmir, made illegal use of his position. It has not been averred in the complaint as to in which capacity the accused-appellant committed the misconduct by misusing his power and position. It may also be observed that it is paradoxical to say that the accused misused his power or position as Speaker of the Azad Jammu and Kashmir Legislative Assembly when he was no more Speaker of the Assembly, as is the case of the prosecution. Thus, the question which falls for determination is as to whether the conviction of the accused appellant is bad in law because he was not specifically charged for D committing misconduct as a Member of the Assembly, despite the fact tha his misconduct as such stands proved by the evidence on record.
6. The learned counsel for the appellant has referred to the cases reported as Chief Secretary!
Referring Authority v. Sardar Muhammad Abdul Qayyum Khan (1) and Sardar Khan Bahadur Khah v.
Chief Secretary Azad Government off & K (2) in support of his contention that if the evidence travels beyond the charge, it cannot be looked into even if any misconduct stands proved by the evidence. It may be stated at the very outset that both the above-mentioned cases were under the provisions of Azad Jammu and Kashmir Holders of Representative Offices (Disqualification)
Ordinance and as such proceedings were of civil nature. Therefore, the view expressed in the aforesaid cases has no relevancy to the case in hand. Moreover, under section 4(2) of the aforesaid Ordinance the charge had to be notified in the official Gazette before making reference to the Disqualification Tribunal. It was in view of the aforesaid provision that departure from original charge was held to be violative of law.
7. In the instant case the accused was tried under the provisions of the Ordinance known as the Holders of Representative Offices (Trial of Offences Ordinance and as such this being purely a criminal case is to be decide according to the norms of procedure prescribed for such trials. In criminal cases, even if the accused is charged with one offence, he can be convicted for committing another offence, if such other offence is made out of the fact proved, it is not a major offence as compared with the offence with which the accused was originally charged and the accused is not prejudiced by conviction for such other offence. Whether in the aforesaid eventuality an accused is likely to be prejudiced in a particular case depends upon the particular facts of that case. If the offence for which the accused is convicted does not flow from the facts which constituted original charge and there is material variation between the facts originally alleged and the facts proved, the accused may be said to have been prejudiced if he is convicted for an offence with which he was not charged. But, if on the other hand, the facts proved are no substantially at variance with the facts originally alleged and the variation in the facts alleged and facts proved is of no substantial nature, it cannot said that the accused has been prejudiced by conviction for committing offend merely because facts proved do not tally with the facts originally alleged in all details. A reference may be made to Rafique v. State (3) wherein it has been opined that slight variation in facts established from those alleged in charge cannot be said to have caused any prejudice to the accused and conviction is not bad in law. {{FOOT NOTE}}
(1) PLD 1983 SC (A J & K) 95 (2) PLD 1983 SC (A J & K 199
(3) 1968 P Cr. L J 645 {{FOOT NOTE}} ' In Muhammad Anwar v. The State (1) it was opined that a conviction can be legally obtained of any offence which appears from the evidence to have been committed, although the accused was not expressly charged with it.
' In Nadir Shah v. The State (2) it was held that errors or omissions in proceedings in stating either the offence or particulars required to be stated in charge or omission in such behalf is not material, unless the accused in fact is shown to have been misled by such errors or omissions and failure of justice has occasioned. Such an -mission was held curable under section 537 of Cr. P. C.
8. Coming to the facts of the instant case it may be observed that the offence for which the appellant has been convicted remains the same whether he committed it as Member of the Legislative Assembly or in any other capacity as visualized under the relevant provision of law. The facts constituting the charge, i,e,, the use of vehicle without entitlement also remains the same.
Therefore, the mere fact that the appellant was not specifically charged for having committed the offence in his capacity as Member of the Azad Jammu and Kashmir Legislative Assembly would not render his conviction illegal on the ground that the appellant has been prejudiced. The material allegation against the accused remains the same and mere difference in status in which he committed the offence if, of course, that status falls within the relevant provision of law cannot be said to be a material variation between the facts alleged and facts proved. In the aforesaid view of the matter we repel the argument that the appellant could not be convicted for committing the misconduct as Member of the Assembly because he was not charged .In that capacity.
9. Coming to the quantum of punishment, we feel that the conviction of the accused carries with it his disqualification for holding any representative office for seven years. This aspect of the matter persuades us to reduce the fine imposed by the trial Court. In the aforesaid view of the matter we reduce the fine imposed on the accused-appellant from Rs, 25,000 to 20,000 and direct that the accused-appellant shall deposit the amount in the Government treasury before the 16th of June, 1984, failing which the appellant shall be arrested and be committed to prison to undergo the term of his imprisonment of six months as ordered by the trial Court. Out of the aforesaid sum Rs, 18,000 shall go to the Assembly Secretariat, whose vehicle was damaged.
' The result is that conviction of the accused-appellant is maintained, but quantum of punishment stands altered as indicated above.
Order accordingly. {{FOOT NOTE}}
(1) PLD 1956 SC 440 (2) 1980 SCM R 402 {{FOOT NOTE}}