SHAH ZAMAN BABAR, J.--This is an appeal under section 417, Cr. P. C. from the judgment dated 23rd December 1967, whereby Mr. Mohammad Jan Khan, Special Judge, Anti-Corruption Establishment, Peshawar, acquitted Ghulam Ahmad accused-respondent of the charge under section 409, P. P. C.
2. The charge against Ghulam Ahmad accused was that he while serving the State as a Dark Room Assistant, T. B. Clinic, Lady Reading Hospital, Peshawar, on or about 26-10-1965, abused his official position, by criminally misappropriating Rs, 5,438.25, which he received on account of charity box collections from the public, and thereby he appears to have committed an offence punishable under section 409, P. P. C.
3. Sardar Fakhri Alam, Advocate-General for the State and S. Ghazanfar Ali Shah Bokhari, Advocate, for Ghulam Ahmad respondent heard. The investigation file and the judicial file of the Court perused.
Since the year 1952 a charity box, affixed with a lock, used to be placed in the T. B. Clinic of the Lady Reading Hospital, Peshawar. Charity donations in money used to be put in the charity box at day time. The key of the box used to be in possession of the medical officer in charge. The box used to be placed in store-room at night time. The collections in the charity box used to be taken out from the box at the end of each month by the Medical Officer. The amount recovered used to be entered in the Ward Register maintained by the outdoor clerk. The money so collected was to be handed over to Dark Room Assistant-cum-Store Keeper for transmission to the Account Branch, and a signature to this effect would be obtained on the outdoor register from the Dark Room Assistant.
The Dark Room Assistant would hand over the amount to the Accoun-tant, who would deposit the said amount in the Government Treasury. Ghulam Ahmad respondent served as Dark Room Assistant T. B. Clinic in the year 1964-65, and he after signing the outdoor register in token of the receipt of monthly collection of the charity fund was required to hand over the amount each month to the accountant in charge. In October 1965, it was found that the donations of T. B. charity box were not being sent to the Account Section every month at its end by Ghulam Ahmad. Karam Elahi Accountant informed Dr. Ali Gohar incharge of the T. B. Clinic about this. On checking, it was found that Ghulam Ahmad had not sent T. B. donation collections to the Account Branch for the last 13 months. Dr. All Gohar made inquiries from Ghulam Ahmad, who it is alleged, admitted that he had misappropriated the amount and would pay the same in instalments. Ghulam Ahmad deposited s. 1,020.75 regarding charity donations of the months of July and August 1965, on the basis of two receipts, with Karam Elahi Accountant. The accountant deposited the amount in the Government Treasury. Thereafter Ghulam Ahmad failed to deposit the remaining amount of Rs, 5,438.25 Dr. Mohammad Arshad Khan, then Medical Superintendent, L. R. H., Peshawar, wrote letter No, 7062/LRH., dated 23-10-1965, to the Senior Superintendent of Police, on the basis of this letter a case under section 409, P. P. C. was registered vide F. I. R. Exh. P. W. 1/A on 26-10-1965, at Police Station East Cantt., by Sher Ali Khan, M. H. C. The case was investigated by lsrar Khan, then posted as Additional S. H. 0., Police Station East Cantt., Peshawar. He took into possession from Dr. Abdur Rauf Khan, then Deputy Medical Superintendent (P. W.), three outdoor registers of T. B. Clinic, 12 challan forms, one for the month of August 1964, signed by Dr. Dost Mohammad pertaining to an amount of Rs, 583,75, seven challan forms signed by Dr. Abdur Rauf Khan, respectively, for the months of September for Rs, 573.75, October for Rs, 521.50, November for Rs, 399, December for Rs, 368, January for Rs, 334, February for Rs, 415, and March for Rs, 524.25. Another challan for the month of April 1965 for Rs, 455 in the hand of Dr. Inder Sein Rajpal, three more challan forms respectively for the months of May for Rs, 610, June for Rs, 654.25 and July for Rs, 602.25 signed by Dr. Sabzali Shah, an application by Ghulam Ahmad accused, two deposit receipts for the months of July and August 1965, two papers with respect to the total amount of collections recoverable from the accused were also taken into possession, and a recovery memo. was prepared with respect to all these documents on 26-10-1965. The challan of the case was put in Court by Shah Nazar Khan, then S. H. 0. of the Police Station. Sanction (Exh. P. W. 2/A) for the prosecution of Ghulam Ahmad accused for offence under section 409, P. P. C. and under section 5(2) of the Prevention of Corruption Act for criminal misappropriation of a sum of Rs, 5,438.25 pertaining to charity box collections between August 1965, was also obtained.
4. The case against Ghulam Ahmad accused-respondent was put in the Court of Special Judge, Peshawar, on the basis of a report (challan) setting forth the names of the parties, the nature of information, and the names of the persons, who appear to be acquainted with the circumstances of the case as required under section 173, Cr. P. C. after the investigation of the case was completed. In the column of witnesses in the challan, (1) Mohammad Arshad Khan, Medical Superintendent.
(2)Dr. Abdur Rauf Khan, formerly DMH, L. R. H., Peshawar.
(3)Dr. Inder Sein Rajpal, Incharge Dispensary, (4) Karam Elahl, Accountant, (5) Ghulam Jilani, Office Superintendent, (6) Dr. Sabzali Shah, (7) Dr. Dost Mohammad Khan, (8) Dr. Ali Gohar Khan, lncharge T. B. Hospital, of the Lady Reading Hospital, Peshawar, (9) Mr. Rafiq Hassan, City Magistrate, Peshawar, (10) Mr. Mohammad Ashraf, Government Examiner of questioned documents and Director, Forensic Laboratory, Peshawar, (11) Israr Khan S. I., (12) Shah Nazar Khan, S. H. O., and (13) Sher Ali Khan, A. S. I. of Police Station East Gantt., Peshawar, were cited as witnesses for the prosecution. The nature of the information set forth in the last column of the challan is that Ghulam Ahmad accused while acting as Dark Room Assistant in the T. B. Centre, L. R. H., Peshawar, in the year 1964-65, on different dates, misappropriated the sum of Rs, 5,438.25, which he collected for deposit in favour of State and that the Registers which contained entries in the handwriting of the accused have been opined by the handwriting expert to be in the hand of the accused.
5. The procedure or trial of offences by a Special Judge under the Pakistan Criminal Law (Amendment) Act, 1958 is that of the trial of summons cases under Chapter XX of the Code of Criminal Procedure. The Special Judge (under section 242, Cr. P. C.) stated to Ghulam Ahmad accused the following particulars of accusation :- "The charge against you Ghulam Ahmad formely Dark Room Assistant T. B. Clinic, L. R. H., Peshawar is that you while serving the State as such on or about 26-10.1965, by abusing your official position, criminally misappropriated Rs, 5,438.24 Paisas which you received on account of Charity Box collection from the public and thereby you appear to have committed an offence punishable under section 409, P. P. C.
Show cause why you should not be convicted accordingly" Ans.--I am innocent and will show cause. R.
O. & A. C. Certified under section 364, Cr. P. C.
(Sd.) Ghulam Ahmad (Sd.) Special Judge, accused. Peshawar. 13-11-1967."
6. The trial of the accused also commenced on 13-11-1967. On this day the testimony of P. W. 1., Dr. Mohammad Arshad Khan, formerly Medical Superintendent L. R. H., Peshawar, Dr. Abdur Rauf Khan, formerly DMH, L. R. H., Peshawar, P. W. Ghulam Mani, formerly posted as Superintendent L. R. H., Peshawar, P. W. 4 Karam Elahi, formerly posted as Accountant, L. R. H., Peshawar, and Dr. All Gohar Khan, formerly in-charge T. B. Unit, L. R. H., Peshawar, was recorded. On 13-11-1967 P. W. Rafiq Hassan, then C. M. P., Peshawar, was abandoned by the Special Prosecutor, as he was reported to have gone to U. K. It appears that in the presence of this witness the specimen signatures of Ghulam Ahmad were taken.
On 6-12-1967 Israr Khan, formerly Additional S. H. 0. Police Station East Gantt. was examined. On this day P. Ws. Shah Nazar Khan (S. H. O.), Sher Ali Khan M. H. C., both of Police Station East Cantt., Peshawar and Malik Mohammad Ashraf, Handwriting Expert, were abandoned by the Special Prosecutor. Malik Mohammad Ashraf was reported to have gone to U. S. A.
On 19-12-1967 the deposition of P. W. 7 Dr. Dost Mohammad formerly incharge of T. B. Clinic, L. R. H.
Peshawar, was recorded. On this day P. W. 8 Dr. Inder SeinRajpal was produced, but abandoned by the Special Judge. On the same day the Special Prosecutor abandoned P. W. Dr. Sabzali Shah as unnecessary. The prosecution evidence was closed on this day, and a statement under section 342, Cr. P. C. of Ghulam Ahmad accused-respondent was recorded. This statement is reproduced below :- "Q. Did you serve the State as an Assistant in the Dark Room of the L. R. H., Peshawar during the year 1965 ?
A. Yes.
Q. Did you by abusing your official position as such criminally misappropriated a sum of Rs, 5,438.25 paisas on account of charity fund ?
A. No, Q. What is your statement and why are you charged ?
A. I am innocent and falsely charged in this case. I was posted as an Assistant in the Dark Room whereas the collection was to be made by the outdoor clerk as admitted by P. W. Dost Mohammad Khan in his statement in Court. The key of the box used to remain in possession of the doctor incharge as admitted by the said P. W., I was never entrusted with any Government money nor it was my duty to collect or deposit the same.
Q. Will you produce defence ?
A. No, R. O. & A. C. Certified under section 364, Cr. P. C.
(Sd.) Ghulam Ahmad (Sd.) Special Judge, Accused. 19-12-1967,"
7. The judgment was announced by the learned Special Judge on 23-12-1967, whereby he acquitted the accused under section 245, Cr. P. C. and cancelled the police case, with the direction that the case property be returned to the Department concerned. In the concluding para. 21, the learned Special Judge, observed :- "As discussed above under the statements of the various P. Ws. I come to the conclusion that the hospital authorities have got no record to show as to what amount was lying in the box and from whom the same was collected because the outdoor clerk neither used to issue receipts for the donations nor he used to prepare a list of the persons from whom the amounts were collected. It is similarly not proved by the prosecution as for how many months the box was not opened. In addition to this the prosecution failed in proving the guilt of the accused exclusively if there was any, because P. W. No, 7 Doctor Dost Mohammad Khan clearly rejected the statements of Doctor Ali Gauhar Khan and others in this respect. I, therefore, acquit the accused under section 245, Cr. P. C. and cancel the police case."
8. Subsection (2) of section 172, Cr. P. C. permits a Court to use police diaries of a case for its aid. We have, therefore perused the police diaries and the record of the judicial file thoroughly, and have come to the conclusion that the prosecution and the trial of the case has been conducted in a most perfunctory manner. Mr. Piarai Lal, T. B. Assistant, L. R. H. Peshawar, who maintained the outdoor register of the T. B. Clinic during the period in question in the case, was examined for this statement by Israr Khan S. I. but Piarai Lal has neither been cited as a prosecution witness in the challan, nor he has been summoned as an additional witness for the prosecution or a Court- witness at the trial. On a further perusal of the statements of the prosecution witnesses cited in the challan and their testimony in Court, we are of the view that full particulars of documentary evidence in their previous statements during investigation have not been brought on file. Further the statements of the witnesses abandoned by the Special Prosecutor or the Court have been erroneously withheld at the trial. The particulars of accusation of Ghulam Ahmad accused- respondent and his statement under section 342, Cr. P. C., reproduced verbatim above, have not been recorded in strict compliance of the mandatory provisions of sections 242 and 342, Cr. P. C.
In Ramanlal Pathi v. The State it is ruled:- "A retrial may be ordered when the original trial has not been satisfactory for particular reasons, for example, if evidence had been wrongly rejected which should have been admitted, or admitted when it should have been rejected, or the Court had refused to hear certain witness who should have been heard."
In Abdus Sattar v. The Crown the dictum is :- "As a general rule, an order for retrial would be proper only where the trial in the lower Court had1 2 been illegal, irregular, or otherwise defective. A retrial may also be ordered if the trial Court had allowed inadmissible evidence to come on the record, or had wrongly excluded evidence which was relevant to the case."
Again in The State v. Barkat Ali and others it is held :- "The failure of the Magistrate to examine all the prosecution witnesses is an illegality which is not curable and which vitiates the trial in its entirety."
In the above quoted authority of Lahore it is also ruled that the provisions of section 342, Cr. P. C. are mandatory and if they are not strictly complied with, the omission vitiates the trial even though the accused has been eventually acquitted.
In Gopal Krishna Saha and others v. Mati Lal Singh , it is laid : "The omission to state to the accused the particulars of the offence (under section 242, Cr. P. C.) with which he is charged when he appears or is brought before the Court is an omission to comply with an express Provision of the Code as to the mode of trial, and is more than a mere irregularity and cannot be cured by section 537.
In Mulkrai Bodhrai Chabra v. Nagpur Municipal Corporation, Nagpur , it is laid :- "The requirement of the law under section 242 of the Code of Criminal Procedure is performance of a judicial act. The law enjoins that the particulars of the offence have to be stated to the accused by the Magistrate and the record must show that were the particulars which were explained or stated to the accused by the Magistrate. This requirement is not a formality. It is essential in the cases of trials held by summons procedure that the accused must know what is the charge that he has to meet. There is no framing of charge in summons trials and the only opportunity the accused has to know what the accusation against him is by the statement of the particulars which the Magistrate is in law bound to explain to the accused. The Magistrate must bear in mind this requirement of the law in summons cases and non-compliance thereof is likely to result in serious prejudice to one side or the other."
In A. M. Nur Mian v. Mokhlesur Rehman Almansuri the rule laid is that examination of the accused under section 342 of the Criminal Procedure Code is an integral part of the scheme for enabling the Court to discover truth, that proper non-compliance with the provisions of this section may cause prejudice to either party, and that the grievance can be made about improper examination even where trial ends in acquittal of the accused.
9. In the result, while following the principle of law laid down in the above reported decision, we accept the State appeal, set aside the impugned judgment of acquittal of the Special Judge, Peshawar, and order that Ghulam Ahmad accused-respondent be retried from the initial stage of his examination under section 242, Cr. P. C. Thereafter all the witnesses, who appear to be acquainted with the facts and circumstances of the case mentioned in the challau and Piarai Lal T.
B. Assistant be examined as prosecution witnesses. They be examined on full particulars of the case, preferably keeping in view their statements recorded during investigation pertaining to the documentary evidence. If Malik Muhammad Ashraf, Handwriting Expert, is still not available, another handwriting expert be examined in the case.
The record of the case be returned to the Court of Special Judge, Peshawar. We are informed that Mr. Muhammad Jan Khan, Special Judge, Peshawar who tried the accused-respondent, has been transferred from the post. AIR 1951 Cal. 305 PLD 1954 FC 120 PLD 1960 Lah. 140 AIR 1927 Cal. 1963 4 5 6 1 2 3 4