2022 PLP 695 (MLD)

LAL JAN KHATTAK, J.

This appeal under section 410, Cr.P.C. is directed against the judgment dated 14.05.2019 of learned Special Judge Anti-Corruption (Central) Khyber Pakhtunkhwa, Peshawar, whereby the appellant has been convicted and sentenced to (i) Four years imprisonment with fine of Rs.4,00,000/- (four lac) under section 409, P.P.C. (ii) Four years imprisonment with fine of Rs.4,00,000/- (four lac) under section 5 (2) of Prevention of Corruption Act, 1947 (iii) two years imprisonment under section 418, P.P.C. (iv) two years imprisonment with fine of Rs.2000/- (two thousand) under section 420, P.P.C. (v) half of the imprisonment shall be R.I. and remaining half S.I. and shall be concurrent in nature. (vi) If he pays fines out of which Rs.7,25,725/- (seven lac, twenty five thousand seven hundred and twenty five) shall be paid to the complainant party/USC under section 545(1)(B)(C), Cr.P.C. and if he fails to pay fines, he will suffer further 2/2 years and 2 months concurrent R.Is. respectively at the expiration of main imprisonments. (vii) Benefit of section 382-B, Cr.P.C. towards simple parts of the main imprisonments.

2. Brief facts of the case are that on the written report of Regional Manager USC Mardari region Muhammad Mushtaq to Director FIA, Peshawar Zone vide letter dated 13.10.2009 annexed with copy of FIR No.409 dated 12.6.2008 P.S. Topi District Swabi that earlier under the written report of RM Mardan to DPO Swabi for registration of the case against the accused Ex-Incharge USC Hamlet District Swabi regarding embezzlement of Rs.7,25,725/- case FIR No.409/08 with P.S. Topi Swabi was registered but the accused being federal subject fallen under the jurisdiction of FIA hence report to this effect for the proceedings and on receipt of report the relevant record was requisitioned from RM office and on scrutiny thereof the case was registered by Iftikhar Ali Inspector. During initial investigation the accused was found absconding and compelling process were started, therefore, proceedings under section 512, Cr.P.C were initiated against the appellant.

3. After arrest of the appellant, complete challan was put in court where he was indicated for the crime to which he pleaded not guilty and opted to face the trial. Prosecution in order to prove its case examined (09) witnesses whereafter statement of the accused was recorded wherein he professed innocence. The learned trial court, after conclusion of the trial, found the appellant guilty of the charge and while recording his conviction, sentenced him as mentioned above, hence the instant appeal.

4. Arguments heard. Record perused.

5. It reflects from the record that the learned trial court on 16.11.2018 recorded cross-examination of PWs-4 and 5 in absence of learned counsel for the appellant which exercise of powers has vitiated the entire subsequent case proceedings. Though the witnesses were cross examined by the appellant himself but when he had already engaged a lawyer to defend him in the case then in that situation the learned trial court was legally bound to adjourn the case for absence of the appellant's lawyer than proceeding with the case by directing and allowing the appellant to do the duty of his lawyer. The proceeding conducted by the learned trial court in absence of the appellant's counsel cannot be countenanced. 5(sic) For what has been discussed above, this appeal is allowed, the impugned judgment is set aside and the case is remanded to the learned trial court for its decision afresh in accordance with law and let the learned counsel for the appellant to cross examine the PWs and thereafter take the case to its logical end. It is pertinent to mention here that the appellant shall remain on bail on the already furnished bail bonds. SA/19/P Case remanded.