' This is an appeal by one Ch. Khadim Hussain who, vide order, dated 24th May, 1980, was convicted by Mr. Justice Sardar Said Muhammad Khan, Judge Special Court, of an offence under section 10 (as amended) of the Co-operative Banks (Repayment and Recovery of Loans) Ordinance, 1978 (hereinafter to be referred as loan Ordinance) and sentenced to a fine of Rs, 5,000. In default of payment of fine, rigorous imprisonment for two months was also ordered.
' I have heard the learned counsel for the parties and examined the relevant files minutely.
2. As many as six charges were levelled against the appellant but barring one he has been acquitted of all others. The charge of which the appellant stands convicted (in the words of the Learned Judge) is :- " the accused owed a sum of rupees 2,22,50,199.48 and another sum of Rs, 1,22,40,354 as a debt to be paid to the Defunct-Kashmir National Co-operative Bank but despite notice the accused failed to repay the amount of his share to Registrar Co-operative Societies."
' In the Complaint, however, the charge is different from the one translated by the learned Judge in many ways. To know the disparity, it would be proper to reproduce the charge as stated in the complaint. The charge reads as under :- {{URDU TEXT}}
3. It would thus appear that the charge as translated by the learned Judge is pointedly different from the charge as put forth in the complaint. The original charge no doubt is ambiguous and not specific, nevertheless when read as a whole it clearly denotes that the Directors of the defunct- Kashmir National Co-operative Bank were under debt to the bank, on 31-3-1978 to the tune of Rs, 4,44,90,553.48 (Mirpur Branch Rs, 2,22,50,199.48 and Chechian Branch Rs, 2,22,40,354 and Ch. Khadim Hussain, appellant, one of the Directors, failed to pay back his share of debt within time and thus made himself liable to,a penalty under section 10 of the Loan Ordinance along with section 419/420 of the Azad Penal Code. The allegation, as entered in the complaint, makes the appellant liable for penalty for non-payment of the loan in his capacity as Director of defunct- Kashmir National Co-operative Bank to the extent of his share received by him from Mirpur and Chechian Branches of the bank which comes to Rs, 2,22,50,199.48 and Rs, 2,22,40.354 respectively.
On the other hand the allegation in the judgment, so far Chechian Branch is concerned, is with regard to Rs, 1,22,40,354 and not Rs, 2,22,40,354. Likewise. The original charge does not contain that the appellant, "despite notice", failed to repay the amount of his share while the charge translated in the judgment says in unequivocal terms that the appellant, "despite notice", failed to repay the amount of his share to the Registrar Co-operative Societies. Similarly, the original charge in respect of the loan received by the appellant is in his capacity as one of the Directors of the defunct- Kashmir National Cooperative Bank while the charge translated does not make him liable as such. I have highlighted the disparity because in my view it has vital bearing in the disposal of the case.
This aspect, however, would be attended to at its proper place.
4. Before I dispose of the legal consequence of the disparity in the charge, as referred to above, I think whether the appellant, even on the basis of the charge in the complaint or translated by the learned Judge, can be said to have contravened the provisions of section 3 of the Loan Ordinance is the fundamental question to be answered. To meet this question, it would be in the interest of justice to know as to how the provisions of a statute are interpreted. In construing the provisions of a statute it is essential for a Court in the first instance to give effect to the natural meanings of the words used therein; if those are clear enough. It is only in the case of any ambiguity that a Court is entitled to ascertain the intention of the legislature by construing the provisions of the statutes as a whole while taking into account the circumstances which led to the enactment of the statute. The rule is well-founded that a statute has to A be construed as a whole and every part of the statute is to be given a meaning consistent with the other provision thereof. So was held in State v. Zia-ur- Rahman and others (1) and I feel myself in total agreement with the law enunciated in the case.
(1)PLD1973SC49
5. It is also fundamental principle of criminal law that punishment can be imposed only if a case falls clearly within the words of an enactment. If there is an ambiguity in the words which set out the element of an act or omission declared to be an offence, and it is doubtful whether B the act or omission in question falls within the statutory words, the ambiguity will be resolved in favour of the person charged. This, in practice, is the most important guideline for strict construction of penal laws. Maxwell on Interpretation of Statute, 12th Edn., p. 239, observes:- "The principle applied in construing a penal act is that if, in construing the relevant provisions, 'there appears any reasonable doubt or ambiguity', it will be resolved in favour of the person who would be liable to the penalty. 'If there is a reasonable interpretation which will avoid the penalty in any particular case', said Lord Esher M. R., 'we must adopt that construction. If there are two reasonable constructions we must give the more lenient one. That is the settled rule for the construction of penal sections.' Or, as Plowman, J. Has said more recently : 'In every case the question is simply what is the meaning of the words which the statute has used to describe the prohibited act or transaction ? If these words have a natural meaning, that is their meaning, and such meaning, is not to be extended by any reasoning based on the substance of the transaction. If the language of the statute is equivocal and there are two reasonable meanings of that language, the interpretation which will avoid the penalty is to be adopted.' The Court must always see that the person to be penalized comes fairly and, squarely within the plain words of the enactment."
6. In view of the cardinal principles governing the interpretation of a statute, the controversy can well be looked into while examining and placing in juxtaposition the relevant parts of sections 3, 4 and 5 of the Loan Ordinance. Section 3 reads :- "Notwithstanding anything contained in any other law for the time being in force or in any agreement or other instrument, award or decree of any Court every loan payable to a Co- operative Bank shall unless repaid earlier, be repaid to the Provincial Co-operative Bank in case of Co-operative Banks which stand dissolved under section 42, subsection (4) of the Establishment of the Federal Bank for Co-operatives and Regulation of Co-operative Banking Ordinance, 1976, as adapted in Azad Jammu and Kashmir, and to the successor Co-operative Society in case of Co- operative Banks which have been converted into non-banking societies under subsection (5) of the said section, in the following manner, that is to say :-
(a) not less than twenty per cent of the loan shall be paid within sixty days from the commencement of the Ordinance No, XXXIV of 1977 or in such extended period not exceeding thirty days as the Registrar may fix.
(b) the balance of the loan after payment as aforesaid shall, within one month from the expiry of the period mentioned in clause (a), be secured by mortgage, pledge, hypothecation or assignment of such property of the borrower or his surety or of both as the Registrar may think adequate and shall be repaid in such instalments within a period not exceeding one year from the commencement of the Ordinance XXXIV of 1977 as the Registrar directs : ' Provided that the Registrar may, if he considers necessary in case in which not less than fifty per cent of the loan has been repaid within the aforesaid period of one year, extend the period by a further period and such further period shall not exceed nine months."
' Section 4 of the Loan Ordinance reads :- " (1) If the amount of any loan or any part thereof to be repaid in accordance with the provisions of section 3, is not paid within the period or periods specified in the said section, the same may be recovered by the Registrar according to the law and under the rules for the time being in force for the recovery of arrears of land revenue and while doing so he may exercise all or any of the powers of Collector under the Land Revenue Act and the rules made thereunder.
(2) . .
(3) . . .
' Section 5 says : " (1) In respect of Co-operative Banks which stand dissolved by the operation of section 42, subsection (4) of the Establishment of Federal Bank for Co-operatives and Regulations of Co- operative Banking Ordinance, 1976, as adapted in Azad Jammu and Kashmir, the Provincial Cooperative Bank and in respect of the Co-operative Banks which have been converted into non- banking societies under subsection (5) of section 42 of the said Ordinance, such societies, shall, within thirty days of the commencement of Ordinance XXXIV of 1977 or within such extended period as the Registrar may allow, furnish to the Registrar full particulars in respect of all cases of loans required to be repaid under section 3;
(2) On receipt of information under subsection (1) in respect of any loan the Registrar may cause notice to be issued to borrower requiring him to repay and secure the loan.
(3) Where any borrower to whom notice under subsection (2) is issued does not admit the loan or any liability arising therefrom, he shall within thirty days of the receipt of notice, or within such further period as the Registrar may, in special circumstances allow, submit either personally or by registered post (acknowledgement due), a written statement to that effect to the Registrar, who thereupon shall cause notice to be issued to the Bank or society concerned, and shall, after making such inquiry as he considers necessary, and giving the parties reasonable opportunity of being heard, decide about the liability ;
(4) The decision of the Registrar under subsection (3) shall be final and shall not be called in question in any Court."
7. The close combined study of sections 3, 4 and 5 of the Loan Ordinance would show that they are interlinked and are to be read together. None of them has its independent features. Section 3 (a) enjoins upon a borrower to make payment of twenty per cent of loan within sixty days from the commencement of the Loan Ordinance and the remaining amount of the loan under subsection
(b) of section 3 of the Ordinance is to be secured within one month after the expiry of sixty days.
The important question, which requires consideration, is as to how a borrower would know the exact amount which he is required to pay or secure under section 3 of the Loan Ordinance?
Whether he himself is required to locate! The exact amount or the Ordinance stipulates some other method and procedure for this purpose ?
8. On the above point the societies, under section 5 of the Loan Ordinance, are required to furnish to the Registrar full particulars in respect of loans required to be repaid and secured under section
3. On receipt of information under subsection (2) of section 5 of the Ordinance, the Registrar may cause a notice to be issued to the borrower requiring him to repay and secure the loan. The word 'may' as would be seen presently is not directory but is used in a mandatory way.
' It would not be without interest to point out that originally under subsection (2) of section 5 of the Ordinance, notice was required to be given to the borrower to pay and secure the loan in accordance with the provisions of section 3. The original subsection (2) of section 5 of Ordinance No, XCVIII of 1978 reads as under :- "On receipt of information under subsection (1) in respect of any loan the Registrar shall cause notice to be issued to the borrower requiring him to repay and secure the loan in accordance with the provisions of section 3."
' It would be noticed that the word "shall", appeared in the original Ordinance, which was later on substituted by "may" and the words "in accordance with the provisions of section 3" were deleted by virtue of amending Ordinance No, CLXXX of 1979 which reads :- ' In the Co-operative Banks (Repayment and Recovery of Loans) Ordinance, 1978 (Ordinance CLXXVI of 1978) hereinafter referred to as the said Ordinance, in section 5, for subsection (2) the following shall be substituted and shall be deemed always to have been so substituted :-
(2) On receipt of information under subsection (1) in respect of any loan the Registrar may cause notice to be issued to borrower requiring him to repay and secure the loan."
' The amendment, to me, is not in good taste but despite this, it fails to change the character and spirit of the law. Even on the face of the amendment it has positive reference to section 3; especially when we look to the words "required to be repaid under section" appearing under section 5(1) and "repay and secure" used under section 5(2) of the Loan Ordinance. Besides, under subsection (3) of section 5 where a borrower to whom a notice under subsection (2) is issued does not admit the loan or any liability arising therefrom he shall, within thirty days of the receipt of the notice or within such further period as the Registrar may allow, submit a written statement to that effect to the Registrar who thereupon shall cause a notice to be issued to the Bank or society concerned and shall, after making such inquiry as he deems necessary and giving the parties proper opportunity of being heard, decide about the liability. What is that liability? It is the liability which a borrower is required to discharge under section 3 of the Loan Ordinance.
9. It is settled principle of interpretation of law that the words of a statute should be construed with regard to the object of the statute which F appears to govern the class of cases. This thing should always be borne in mind that there are certain objects which the Legislature is presumed not to intend and a construction which would frustrate any of the purposes of the Act is, therefore, to be avoided. While interpreting such a Legislation which amends the law, one thing is clear that such an interpretation is to be avoided which may give to alter the previous policy of the law unless the language, the Legislature had used, obliges the Court to come to the conclusion that they did so intend. Besides, it is the sacred duty of a Judge to make such construction of the statute as will suppress the mischief and advance the remedy. Even where the usual meaning of the language falls short of the whole object, a more extending meaning may be attributed to the words if they are fairly susceptible of it. This is called the beneficial construction of a statute.
In the instant case the reading of the Ordinance as a whole conveys a clear impression that the Legislature never intended to penalise a person without giving him an opportunity to explain his position regarding the debts which he was to pay to the bank at the time of its dissolution. This G basic policy engrained in the Ordinance cannot be snatched away by any unintelligible and stray amendment as is in the present case. It is significant to note that, as stated earlier, in the original ordinance it was unmistakably stipulated under section 5 (2) that a notice shall be issued to the borrower after getting the requisite information from the societies regarding the debt which he has to pay and secure under section 3 of the Ordinance. No doubt, the Legislature later on substituted the word "may" instead of the word "shall" and deleted the words "in accordance with the provisions of section 3" but the consequences which flowed for violating the section embodied in subsections (3), (4) and (5) of section 5 of the Loan Ordinance are left intact. Therefore, there is no escape but to hold that the word "may" shall be construed to be must and in the presence of the words "pay and secure" appearing in the amended Ordinance, it has positive reference to section 3 of the Loan Ordinance. The irresistible conclusion to which I have come is that notice is a prerequisite for violating section 3 of the Loan Ordinance.
10. My conclusion, therefore, is that the question of payment of twenty per cent of the loan and securing the remaining would arise only when the provisions of section 5 of the Loan Ordinance nave been complied with. If these provisions are not complied with, no penal action under section ,0 of the Ordinance for violation of section 3 of the Loan Ordinance is permissible. In a nutshell non- issuance of notice under section 5 of the Loan Ordinance can validly be pleaded as a defence for non-payment of twenty per cent of the debt and for getting the balance secured and the issuance of notice for compliance of section 3, therefore, is a condition precedent and a person cannot be said to have contravened the provisions of section 3 of the Loan Ordinance without such notice. My view gets approval from the fact that the words "payment" and "secure" only find a place in section 3 of the Loan Ordinance and nowhere and, therefore, wherever these words occur in other part of the Loan Ordinance, they would be referable to section 3 of the Ordinance.
11.The reading of the ordinance as a whole also takes me to the same conclusion. The Ordinance covers two fields; firstly it provides for repayment of twenty per cent of loan and securing the balance by mortgage etc.; and secondly it deals with the method and procedure for repayment and recovery of loan stipulated under section 3 of the Ordinance. The procedure prior to taking action under section 3 of the Ordinance is covered under section 5 of the Ordinance. Both the sections, in my view, are interwoven and cannot be read in isolation. Repayment stipulated under section 3 is voluntary act of the borrower to be done within the stipulated period laid down therein, but a notice under section 5 of the Loan Ordinance to know the amount outstanding against him for its payment and securing under section 3 is prerequisite. Section 3, therefore, in my view, does insist upon for a notice prior to taking action for its violation. As the prosecution in this case against the appellant for violation of section 3 of the Loan Ordinance has been taken without a notice under section 5 of the Ordinance, the same is illegal. In view of the above, the dictum of this Court in case Ch. Mazhar Hussain v. State (Criminal Appeal No, 1 of 1980) that there is no need for a prior notice before taking action under section 3 of the Loan Ordinance, stands reconsidered.
12. Now I take up the issue regarding the defective charge. Judging the case from the settled principle of law, I am satisfied that the charge as framed by the learned Special Public Prosecutor does not come under section 3 of the Loan Ordinance. If a person fails to fulfil the condition under this section, he is liable for action under section 10 of the Loan Ordinance. For the applicability of section 3, the requirements stipulated under section 5 of the Loan Ordinance have to be complied with ; otherwise the charge cannot be sustained. Here in this case the allegation does not show that the appellant failed to pay back the amount outstanding against him despite notice and inquiry as postulated under section 5 of the Ordinance. It, however, appears that the learned special Judge most probably was laboring under the wrong impression that the ingredients of section 5 had been complied with and that is why the charge, as translated by the Judge, specifically says that he failed to repay his amount of debt to the Registrar Co-operative Societies despite notice.
' The learned Judge, while dealing with the charge, observed :- "The next charge against the accused is that he had failed to repay and secure the loan as has been visualised in section 3 of the Co-operative Banks (Repayment and Recovery of Loans)
Ordinance. The prosecution has relied on the statements of M. F. A. Janjua and Lal Din Arif as well as the photokat copies Exhs. P. C., P. A. And its original P. I. It is clear from the audit report as well as the corroborative statement of Lal Din Arif that the accused didn't pay or secure the loans as required under section 3 of the relevant Ordinance. The deposition of this witness with regard to the outstanding loans of the defunct-Kashmir National Cooperative Bank has not been challenged by the defence in cross-examination. The United Corporation in which the accused is a sharer to the extent of 2/7 owed a loan to the Kashmir National Co-operative Bank to the tune of Rs, 2,30,40,354.
The accused had to pay and secure his proportionate share of the loan i,e, to the extent of 2/7 to which he was sharer in the United Corporation. He has not done so, and, in my opinion, the prosecution has amply proved that he is guilty under section 10 of the Ordinance known as the Co- operative Banks (Repayment and Recovery of Loans) Ordinance for violating the provisions of the said Ordinance."
13. In the first instance the question as to whether notice under section 5 of the Loan Ordinance was mandatory before any action, for violation of section 3 of the Ordinances, could be taken against the appellant has not been considered; and secondly the dictum recorded by the Judge not only runs counter to the charge as framed by the learned Judge (in English) but it is also incompatible with the charge entered in the complaint. It is worthwhile to note that in the charge listed in the complaint the appellant is not required to explain his position as to whether despite notice he had failed to pay twenty per cent of debt and secure the balance and thus violation of section 3 of the Loan Ordinance does not arise at all. Photostat copies of Exhs. P.C. And P.A., whose original is Exh. P.I therefore, even if we consider them to contain evidence, only enter that the accused did not pay the loan outstanding against him. They nowhere contain any evidence to suggest that notice as stipulated under section 5 of the Loan Ordinance was also issued to the appellant after receipt of the report regarding the debt stipulated under section 3 of the Ordinance. Naturally, in these circumstances no conviction can be recorded against the appellant under section 10 of the Loan Ordinance.
14. It is also important to note that the appellant has been convicted for his failure to pay his proportional share of the loan to the extent of 2/7 of which he was a sharer in the United Corporation and also for his failure to pay the outstanding amount. But the appellant has been called upon to explain his position as Director of the defunct-Kashmir National Co-operative Bank and in this capacity the allegation was leveled against him in the complaint. The conviction thus recorded for an offence for which neither the appellant was charged nor he was required to explain his position, cannot be maintained.
15. Failure to appreciate at the earliest possible stage the precise nature of the default recognised as unlawful, under section 3 of the Loan Ordinance, appears from the charge as framed by the Special Public Prosecutor. As said earlier the charge appearing in the complaint is altogether different from the charge translated by the Judge. I would say, therefore, that the charge is defective inasmuch as it fails to allege the manner (visualised under section 5 of the Ordinance) in which the appellant violated the provisions of section 3 of the Ordinance.
16. On the above statement, one important fact which emerges is that there has been no direct or clear charge against the appellant for the specific offence under section 3 of the Loan Ordinance.
The question that arises next is as to whether without such direct charge the conviction and sentence for the offence can be maintained. It appears to me quite clear that a charge against a person to violate the provisions of section 3 of the Loan Ordinance ought to be clear and if it is otherwise; it would be said that the charge does not put the person on notice to meet the allegation against him regarding the elements of offence stipulated under section 3 of the Loan Ordinance. The omission, therefore, of specific charge against the appellant as stipulated under section 3 of the Loan Ordinance in respect of which he has been sentenced to pay the fine of Rs, 5,000 is a very serious lacuna in the proceedings.
17. It is imperative that before a person is convicted of an offence he should (subject to certain exceptions) be formally charged with for having committed an offence specified and he can be convicted only on proof of the offence so specified and not for offence not so specified. Under law details other than those implied in the description of the offence (as this case is) cannot be taken into account against a person. Where an offence under a section consists in contravention of the provisions of another section, it is essential to mention both the sections in the charge. For instance where the section of the Penal Code with which a person is intended to be charged contains several parts; that part of the section which is applicable to the case should be stated. If a particular clause of the section is specified in the charge the prosecution is not entitled to rely on a different clause of that section. No doubt, where all the necessary particulars are mentioned though the particular clause of the section under which the offence falls is not mentioned, it matters little and it would be said that the accused has not been prejudiced. But if the particulars are different from the section quoted; the accused undoubtedly stands prejudiced.
18. It has been suggested that since a specific question was put to th appellant under section 342, Code of Criminal Procedure, the accused ha ample notice of specific case. I am sorry I cannot agree with this proposition. In the first instance the important element to constitute violation under section 3 of the Loan Ordinance has not been put to the appellant even in his statement under section 342 of the Code of Criminal Procedure. Besides, the accused has already been prejudiced and after his statement under section 342, Code of Criminal Procedure, he has no opportunity to discredit the prosecution evidence regarding the question put to him under section 342 of the Code of Criminal Procedure. Even otherwise the very fact that the charge was vague in the complaint and the learned Judge also translated it differently to the original charge is likely to mislead the appellant. The appellant in a case so serious, as the present one is, to say that the accused has not been prejudiced by the absence of the specific charge under section 3 of the Loan Ordinance is too much. My view is that as this has definitely prejudiced the appellant. Surajpal v. The State of Uttar Pradesh (1) is a case which owns my view point.
19. A charge corresponds to an "indictment" in English law and is very much more than a mere form. The charge should be precise in its scope and particular in its details. In drawing up a charge, if it is not done the charge is defective and the accused cannot be convicted on such an uncertain charge. The charge should also be carefully drawn up in accordance with the offence disclosed.
Sections 221, 2 2 and 223, Code of Criminal Procedure, specify particulars that should be stated in the charge, the object of such statement being to enable the accused person to know the substantive charge he will have to meet and to be ready for it before the evidence is given. The accused should be informed with certainty and accuracy the exact nature of the charge brought against him; otherwise he may be seriously prejudiced in his defence. The extent of the particulars necessary to be given will depend upon the facts and circumstances of each case. Girdhara Singh and others v. Emperor (2), Nayan Ullah and others v. Emperor (3), Chhakari Shaikh v. Emperor (4), Sheo Shankar and another v. King-Emperor (5), Indar Pal v. Emperor (6), S. K. Roy Chowdhury v. The
(1) PLD 1956 SC (Ind.) 21 (2) AIR 1922 Lah. 135
(3) AIR 1925 Cal. 903 (4) AIR 1926 Cal. 439
(5) AIR 1926 Oudh 148 (6) AIR 1936 Lah. 409 ' King (1), Makkhan and others v. Emperor (2), Waroo v. Emperor (3) and M. A. Motalib v. State (4), own my view.
' In Girdhara Singh and others v. Emperor, it has been observed :- " With regard to the second point, the question for the consideration of the Court is whether the prosecution has succeeded in establishing that all the essential elements of the offence as defined in section 145, Penal Code, exist in tie present case. Now in order to constitute an offence under this section, it is necessary that the prosecution should establish :-
(1) That there was an assemblage of at least five persons.
(2) That the object of the meeting Was any of the five objects mentioned in section 141.
(3) That the accused shared that object with at least four others of the meetings.
(4) That the accused intentionally joined the meeting.
(a) Having knowledge of the meeting, or
(b) He continued therein after having had the knowledge.
(5) That such unlawful assembly had been commanded to disperse.
(6) That such command to disperse was in the manner prescribed by law.
(7) That the accused joined or continued in such unlawful assembly after it had been commanded to disperse.
(8) That he did so knowing that it had been commanded to disperse."
' In Nayan Ullah and others v. Emperor, it was observed :- " The first point taken in this appeal is that the conviction of Nayan 'Ullah under section 304 read with section 149, Indian Penal Code, when he was not charged with such an offence is bad in law.
We think this objection must be maintained. Ordinarily a person cannot be convicted at a Sessions trial of an offence with which he has not been charged. There are some exceptions to this rule which are to be found in sections 237 and 238, Cr. P. C."
' In Chhakari Shaikh v. Emperor, it was held :- "An accused is entitled to know with certainty and accuracy the exact value of the charge brought against him for unless he has this knowledge he may be seriously prejudiced in his defence. In framing charges it is always a sound rule for the Court to adhere to the language of the statute as far as possible., A departure from the words of the statute benefits nobody and only introduces complications in many instances."
' In Sheo Shankar and another v. King Emperor, it has been held :- ``The charge-sheet corresponds to the English indictment, and it is very much more than a mere form. An accused person is entitled
(1) AIR 1941 Rang. 1 (2) AIR 1945 All. 81
(3) AIR 1948 Sind 40 (4) PLD 1960 Dacca 897 to be informed with the greatest precision what acts he is said to have committed, and under what sections of the Penal Code these acts fall."
' In Indar Pal v. Emperor it has been observed :- " It is one of the elementary principles of criminal law that an accused person must know what the precise accusation against him is before he is called upon to enter on his defence."
' In S. K. Roy Chowdhury v. The King, it was held :- "When a person charged with a criminal offence he must be told with particularity not only the act he is alleged to have committed which is said to constitute it but also what is the law which he is said to have infringed.
' In Makkhan and others v. Emperor, it has been held :- " The whole object of framing a charge is to enable the defence to concentrate its attention on the case that he has to meet, and if the charge is framed in such a vague manner that the necessary ingredients of the offence with which the accused is convicted is not brought out in the charge then to my mind the charge is defective. Further, the whole object of enacting section 342, Criminal Procedure Code, was that the attention of the accused should be drawn to the specific points in the charge and in the evidence on which the prosecution claims that the case is made out against the accused, so that he may be able to give such explanation as he desires to give."
' In Waroo v. Emperor, it is held :- " There must be a charge for every distinct offence and it must be formulated with precision. The precise charge framed is to be tried and tried separately, except in the cases mentioned in sections 234 to 236 and section 239."
' In M. A. Motalib v. The State, it was observed :- " Where the charges are so defective that they do not give any notice to the accused as to the nature of the case which the prosecution sought to make out against him, the accused is prejudiced and his conviction on such defective charges cannot be sustained."
20. The question then arises for consideration is whether or not this lacuna prejudices the appellant in the trial. The charge as framed in the complaint in the first instance, does not disclose the exact way in which section 3 of the Loan Ordinance was violated. Besides, the charge as translated by the trial Judge is at variance with the charge in the complaint. Above all, the conviction recorded by the trial Judge is neither in prolife of the charge listed in the complaint nor it is in conformity with the charge translated by the Judge. When the charge is vague, it would be said that the attention of the appellant was not directed, in his defence, to the question as to how the provisions of section 3 of the Loan Ordinance he has violated. I am, thus, of the considered view that the appellant has been convicted for having committed an offence for which he has not been tried at all. Such a conviction naturally, being in vacuum, cannot be sustained. The learned Special Public Prosecutor (Advocate-General) when confronted with the above legal and factual position had nothing to offer to repudiate the above conclusion.
' In view of the above while accepting appeal I set aside the conviction recorded by the learned special Judge and acquit the appellant. This finding, however, would neither absolve the appellant of any civil liability to pay back the debt if proved outstanding against him nor it would exonerate him from prosecution afresh, if law so allows.