This criminal appeal arises from the judgment, dated 14-1-19'91 of the learned Special Judge (Central) Anti-Corruption, Anti-Smuggling and Emigration, N: W.F.P., Peshawar, wherebv he convicted Bahadur Sher and Shahab Gul appellants under sections 18(b) and 22(b) of the Emigration Ordinance (XVIII of 1979) (hereinafter called as the Ordinance) and sentenced them to rigorous imprisonment for 10 years and a fine of Rs.3,00,000 or in default further rigorous imprisonment for one year and for another period of 10 years and a fine of Rs.3,00,000 or in default further one year's R.1 each respectively. The sentences were, however, to run concurrently with the benefit of section 382-B, Cr.P.C.
2. In pursuance of an application Exh.P.W.1/1 by Muhammad Yusuf, Muhammad Hakim and Hastam Khan to the then Martial Law Authorities, the accused were alleged to have received a sum of Rs.1,65,000 fraudulently on the false pretext of sending them to Saudi Arabia with a view to providing them with an employment but they did neither abide by their undertaking nor did they intend to do so. This application was later on endorsed to Muqarab Khan, S.I., F.I.A. (P.W.7). He summoned the applicants and recorded the statements in support of their allegations contained in the application. After obtaining the requisite sanction, the enquiry was conducted and the case vide FIR. Exh.(P.W.7/1) was registered against them by Fida Muhammad Khan (P.W.6). Shahab Gul appellant was arrested while his co-accused Bahadur Sher was absconding. Since the charge against Shahab Gul appellant is also significant for the disposal of this appeal it is reproduced in extenso:-- "Q.I, Mr. Abdul Wahid Seth, Special Judge (Central) Anti-Corruption etc. N.-W.F:P., Peshawar charge you Shahab Gul son of Darvesh resident of Shakir Dhand Sardheri, Tehsil Charsadda, District Peshawar that you in the year 1984 with the connivance of absconding co-accused Bahadur Sher fraudulently received an amount of Rs.1,65,000 from Muhammad Yusuf etc. On the pretext of sending them to Saudi Arabia and providing them employment over there which you could not.
You were not an authorised Employment Promoter and therefore, committed the offences punishable under section 18-B/22-B of the Emigration Ordinance, 1979 within my cognizance.
Show cause why you should not be convicted for the same.
A.No. I claim trial.
R.O.& A.C.
3-4-1988 Sd/- Special Judge (C) Peshawar.
3. Shahab Gul did not plead guilty to the charge and claimed trial. In consequence, the prosecution evidence was recorded and the prosecution case was closed on 1- 8-1988. In the meantime, Bahadur Sher was arrested and the learned Judge, who succeeded the previous one, charged him on 1-10-1988. The charge against Bahadur Sher, on the other hand, was framed in the following manner:-- "I, Jawaid Nawaz Khan Gandapur, Special Judge (Central), Anti---Corruption, N.-W.F.P., Peshawar do hereby charge you:-- Bahadar Sher son of Haji Mira Jan caste Mohmand aged about 45 years resident of Shakar Dhand Tehsil and District Charsadda, as under:-- That in the year 1984 you and your co-accused Shahab Gul son of Darwesh took Rs.1,65,000 from Muhammad Yusuf etc. Fraudulently and on the false promise/undertaking of sending them to Saudi Arabia where they were to be provided with employment, that in fact you and your co- accused did not do so because both of you were not Authorised Employment Promoters, that in the circumstances, therefore, you appear to have committed offences punishable under sections 18-B and 22-B of the Emigration Ordinance, 1979 and within my cognizance.
And I hereby direct that you be tried by me on the said charges.
R.O.& A.C.
1-10-1988.
Sd/- (Jawaid Nawaz Gandapur)
Special Judge (Central)
Anti-Corruption, N.-W.F.P.
Peshawar.
Again all the prosecution witnesses were examined.
4. The learned trial Judge who was then seized of the case convicted both the appellants aforesaid and sentenced as stated above.
5. The first contention of the learned counsel for the appellants is that after transfer of Mr. Abdul Wahid Seth all the proceedings including the charge in the earlier trial against Shahab Gul appellant would be wiped off. In consequence, the appellants were required to be charged afresh and trial de novo was warranted under section 350, Cr.P.C., and, therefore, both the appellants have been misled in their defence by the absence of a joint charge as aforesaid and thus this Court would be competent to direct a new trial to be held upon the charge to be jointly framed against them. In support of his argument the learned counsel referred to W.Y. Zincke v. Emperor AIR 1936 Nag.
152. It was next contended that the convictions and sentences recorded against the appellants were vitiated, in that mandatory provision of subsection (6) of section 24 of the Ordinance providing for sanction of the Federal Government for prosecution of the accused had not been complied with. Reliance was placed on the precedent case of Zamurrad Khan and another v. The State-1987 SCMR 800. The sanction at page 42 on the file of the learned trial Court, according to the learned counsel for the appellants, was neither consciously taken cognizance of by the learned trial Court nor was it exhibited by the prosecution and, therefore, the object of subsection (6) of section 24 of the Ordinance was again frustrated vitiating the trial on this score also.
6. Hlian Muhammad Ajmal, learned Deputy Attorney-General, on the other hand, submitted that the first omission pointed out by Mr. M. Zahurui Haq may be treated as an irregularity curable under section 537, Cr.P.C. In so far his second objection was concerned, he urged that statutory sanction of the Federal Gov.Rnment had been accorded and merely because it was not exhibited would not be tantamount to disregarding any express provision as to the mode of trial concerning a vital matter.
7. The first point for determination is whether, in the circumstances set out in paras. 2 and 3 ante, transfer of first Mr. Abdul Wahid Seth and then of Mr. Jawaid Nawaz Gandapur, warranted trial de novo under section 350, Cr.P.C., including framing of fresh charge against both the appellants. In this context, the relevant portion of section 350 ibid runs as follows:-- "(1) whenever any Sessions Judge or Magistrate, after having heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein, and is succeeded by another Sessions Judge or Magistrate who has and who exercises such jurisdiction, the Sessions Judge or Magistrate so succeeding may act on the evidence so recorded by his predecessor, or partly recorded by his predecessor and partly recorded by himself; or he may re-examine the witnesses and recommence the inquiry or trial:-- Provided that:
(a) where the conviction was held before a Sessions Judge, the High Court; and
(b) where the conviction was held before Magistrate, the High Court or the Court of Session, may, whether there be an appeal or not, set aside any conviction passed on evidence not wholly recorded by the Sessions Judge or Magistrate before whom the conviction was held, if such Court is of opinion that the accused has been materially prejudiced thereby, and may order a new inquiry or trial."
It would be noticed that the provision of section 350(1), Cr.P.C. As amended has revoked the right of the accused to demand trial de novo on the ground of transfer of the category of the Presiding Officers who were seized of this case. On the contrary, the amended proviso empowers the Presiding Officer to recommence the trial, in which case all that had happened would be wiped out and the case would start afresh particularly in the present case.
8. In the instant case, as stated earlier, Shahab Gul appellant was charged by Mr. Abdul Wahid Seth on 3-4-1988 when his co-accused Bahadur Sher was absconding. He examined 8 prosecution witnesses when the prosecution case was closed on 1-8-1988. In the meantime, in consequence of retirement of Mr. Abdul Wahid Seth, Mr. Jawaid Nawaz Gandapur took cognizance and he charged Bahadur Sher appellant alone on 1-10-1958 and re--examined 9 witnesses and the prosecution case was closed. It is queer to note that when the trial of Bahadur Sher appellant commenced his co-accused Shahab Gul was not charged afresh. Since the trial of Shahab Gul appellant had concluded, then either after examining him under section 342, Cr.P.C., and recording defence evidence, if any, the learned trial Judge should have pronounced the judgment against him. In the alternative, the learned trial Judge should have charged both the appellants afresh and trial do novo conducted against them and pronounced the judgment. The learned trial Judge did not adopt either of the two alternatives and in consequence, an illegality of vital importance had crept in whereby the appellants have been prejudiced in their defence.
9. These are the omissions in the case on account of which I think that it would be proper to send back the case to the Court below either to jointly charge the appellants afresh and determine whether trial de novo was or was not required and then decide the case or examine the possibility of recording separate convictions against the appellants as aforesaid. Since the case is being sent back to the Court below the second objection of the learned counsel for the appellants qua taking conscious cognizance of notice within -the contemplation of subsection (6) of section 24 of the Ordinance should be considered by the learned trial Judge and proceed with it accordingly.
10. For the reasons stated above, the appeal succeeds and convictions and sentences recorded against the appellants are set aside. The learned trial Judge shall proceed with the case in the light of the observations made above.