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Criminal Appeal No. 732 of 1985, heard on 15th February,1986.

‑‑‑S. 468/34‑‑Legal infirmity‑‑Case previously remanded for re‑trial from stage of examination of accused‑‑Trial Court altered charge from under S. 5(2) of Prevention of Corruption Act (11 of 1947) to one under S. 468/34 of Penal Code‑‑Trial Court, held, could not alter original charge‑‑Appeal was accepted and accused acquitted of charge due to legal infirmity.

Muhammad Siddiq Chaudhry for Appellant.

Noor Muhammad Paris for the State.

Date of hearing: 15th February, 1986.

This Criminal appeal arises from the judgment of learned Special Judge Anti‑Corruption, Jhang at Sargodha whereby he on 7‑12‑1985 convicted Nisar Ahmad appellant under section 468, read with section 34, P.P.C. and sentenced him to six months' R.I. and a fine of Rs.4,000 in default thereof four months' R.I.

2. The facts giving rise to this appeal are that a case under section 420/419/467/468, P.P.C. was registered against Nisar Ahmad appellant and Muhammad Yousaf co‑accused. The challan was submitted in the Court of Special Judge, Anti‑Corruption, Sargodha and Faisalabad Division, with Headquarters at, Sargodha who, vide judgment, dated 24‑5‑1983 convicted both the accused under section 5 of the Prevention of Corruption Act, 1947 read with section 109, P.P.C. and sentenced them to one year's R.I. and a fine of Rs.1,000. They filed appeal. The High Court set aside the conviction and sent back the case for re‑trial from the stage of the examination of the accused persons under section 342/364, Cr.P.C. On remand the learned trial Court recorded the statement of the accused persons on 7‑5‑1985. The accused appeared as witnesses and made statement on oath in disproof of charge against them. Instead of deciding the case, the trial Court framed new charge under section 468, read with section 34, P.P. C. and has convicted and sentenced them under this charge alone.

3. Since after hearing the learned counsel, I feel inclined to set aside the conviction and sentence of the appellant on account of legal infirmity. I need not set out prosecution case and discuss the evidence produced by the parties. I find that the case was remanded by the High Court to the learned Special Judge, Anti‑Corruption, Sargodha for re‑trial from the stage of the examination of the accused under section 342/364, Cr.P.C. and as such he could not have altered the original charge under section 5(2) of the Prevention of Corruption Act, 1947 into section 468/34, P.P.C. and tried and Convicted him under the new charge.

4. For what has been said above, the appeal is accepted and the appellant is acquitted of the charge.

S.A. Appeal accepted.

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