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Criminal Appeal No. 334 of 1963, decided on 18th January 1967.

, Ss. 234 (2) & 537 Joint trial of offences of different nature‑Not allowed by law-- Offences under Ss. 408 & 381, P. P. C. Not of same kind Accused alleged to have committed criminal breach of trust under S. 408, P. P. C. and subsequently after a period of 11/2 year to have committed theft under S. 381, P. P. C. Joint trial not mere irregularity but an illegality‑Not curable under S. 537.

S. 537‑Clause (b) introduced in section by Code of Criminal Procedure (West Pakistan Amendment) Act (XVII of 1964)‑Not retrospective in effect.

Ch. Muhammad Sadiq and Raja. Abdur Razzaq for Appellant.

Mian Aslam Riaz Hussain, A. A.‑G. and Mian Qamar‑ud‑Din for the State.

Raja Muhammad Akhtar for the Complainant.

Date of hearing : 18th January 1967.

Imdad Ali Shah, son of Muhammad Bakhsh, aged 55 years, resident of Chak No. 46/15‑L, was sent up to stand his trial under sections 408/381, P. P. C. by Police Station Mian Channu. He has been convicted under both the heads to a term of 6 years' rigorous imprisonment by section 30 Magistrate, Khanewal, on the 30th of April 1963. The sentences are however ordered to run concurrently. The convict has approached this Court in appeal.

2. The appellant was working as a clerk with Sher Muhammad Arhati of Mian Channu at his firm known as Sher Muhammad & Sons. On the 5th of March 1962, Hafiz Muhammad Abdullah, son of Ch. Sher Muhammad, lodged a report with the Police Station Mian Channu against the appellant to the effect that the complainant was residing in England when on the 7th of February 1962, he received a telephone call about the sudden death of his father Sher Muhammad. Ali Muhammad another son of Sher Muhammad was also living at that time in England and Hafiz Muhammad Abdullah called him to take over the business from him so that be may return to this country and look after the affairs of his house. Ultimately Hafiz Muhammad Abdullah reached Mian Channu the 28th of February 1962 and met the appellant who was working in the firm of his father on the 3rd of March 1962 The complainant had received information from his maternal cousin that his father Sher Muhammad had withdrawn Rs. 40,000.00 from the Central Co‑operative Bank, Mian Channu about two or three months before his death and that amount he has kept in the iron safe of his shop in Mandi, Mian Channu. Similarly the complainant came to know about a sum of Rs. 5,000.00 which was also kept by Muhammad Ali, his brother‑in‑law with Sher Muhammad, his father, who has kept this amount also in the iron safe of the shop. The complainant enquired from lmdad Ali Shah appellant and called upon him to hand over the key of the iron safe which the appellant declined to give and insisted that he will return the key only in case the complainant was prepared to give him a certificate to the effect that there was nothing due from the appellant. However, on the intervention of some people of Mandi the keys were handed over by the appellant to the complainant who opened the iron safe and found that instead of Rs. 45,000.00 only Rs. 15,000.00 were lying in the safe. It was also reported to the Police that the appellant had made certain entries for the dis bursement of some amount in the name of deceased Sher Muhammad but the entries did not bear his signatures and as such they were forged as the deceased always used to obtain payments after fixing his thumb‑impression in the proper column of the register.

3. Between 3rd of March 1962 and 5th of March 1962 when the above F. I. R. was lodged by the complainant the gap of two days was explained by him saying that some efforts were made in this period to prevail upon the complainant to return Rs. 30,000.00 which he had misappropriated from the iron safe of his father but as there was no out come of the efforts of the complainant he lodged the F. I. R. with the Police on the 5th of March 1962. The case was investigated by Rao Abdul Jalil P. W. The appellant is alleged to have made a statement that he was prepared to lead the Police party to the recovery of Rs. 30,000.00 and the pass book and consequent to this statement the appellant while in Police custody led them to his house in Chak No. 46/15‑L and from inside a tin suitcase he brought out a bundle clad in a piece of cloth R. 13 which was opened by the accused and it was found that it contained pass book P. 9 of Sher Muhammad deceased and three bundles of currency notes of the value of Rs. 30,000.00 of the denomination of Rs. 100 notes. Rao Abdul Jalil S. I. took into possession the incriminating article by memo. Exh. P. C. in the presence of Muhammad Abdullah, Fazal Muhammad and Muhammad Akram P. Ws. The examination of the account book which was taken from the appellant earlier by the complainant dis closed that the appellant had misappropriated some amount of Rs. 13,000.00 by making some forged entries. The trial Magistrate found the appellant guilty of the theft of Rs. 30,000.00 from the iron safe and convicted him under section 381, P. P. C. and ordered that the appellant should suffer six years' rigorous imprisonment under this head. About certain entries relating to a sum of Rs. 7,190.00 which were shown to have been paid to the deceased by the appellant according to the cash book P. 6 and P. 7 the learned Magistrate did not accept the contention of the prosecution that no payment of these entries was made to Sher Muhammad deceased and in the absence of any corroborative evidence he held that it was not possible for him to hold that this amount was not paid to the deceased by the appellant. However, about Rs. 13,000.00 which were admitted by the appellant to have been received from Ch. Muhammad Ali and were entered by him in the cash register P. 6 on the 30th of July 1960 the trial Court found that this amount was not carried forward by the appellant in the grand total on the income side on the 1st of August 1960 and, therefore, he presumed that the appellant had been guilty of misappropriating this amount of Rs. 13,000.00 also. Consequently he was also convicted of the offence under section 408, P. P. C. and was ordered to undergo six years rigorous' imprisonment on this count also.

4. In his statement under section 342, Cr. P. C. the appellant admitted that he was employed by Sher Muhammad father of the complainant in his firm and that it was his duty to maintain the account books, cash registers, etc., and the entries in the account books were in his hand though some entries were in the hand of some other person by the name of Manzoor Hussain. About the sum of Rs. 13,000.00 the appellant admitted that on the 31st of July 1960 this amount was received from Ch. Ali Muhammad and he had entered this amount as Exh. P. 6/C on the income side of the cash register. ' On question as to why this amount was not carried forward on the 1st of August 1960 the appellant stated that he had done this under the instructions of the deceased as he wanted to use this amount for building up the capital of the firth. He explained that on the 12th of November 1960 Rs. 2,000.00, on 9th of November 1960 Rs 4,000.00 on 12th of December 1960 Rs. 3,000.00, on 15th of December 1960 Rs. 2,000.00 and on the 20th of December 1960 Rs. 2,000.00 were contributed out of this amount of Rs. 13,000.00 towards the capital of the firm by Sher Muhammad on page 9 of the Khata Exh. P. 8/B. However, the appellant denied any knowledge about the withdrawal of Rs. 40,000.00 from the Central Co‑operative Ba ink of Mian Channu on the part of the deceased or that the said amount was kept by the deceased in the safe. He also denied his knowledge about Rs. 5,000.00 which were alleged by the prosecution to have been kept in the safe by Sher Muhammad as a trust for Muhammad Ali P. W. The appellant stated that soon after the death of Sher Muhammad the charge of the firm was taken over by his son‑in‑law Muhammad Ali who had also kept a key with him. The appellant also denied the recovery of Rs. 30,000 from a tin box from his house when he led the Police to his house in Chak No. 46/15‑L, but claimed that this amount of Rs. 30,000.00 belonged to him and he was asked by the Sub- Inspector to show this amount to him because he wanted to compare the numbers of the notes. He, therefore, had gone to his house and brought the amount at the Police Station and denied the production of pass book P. 9. The appellant has also examined six witnesses in his defence.

5. In support of its case the prosecution examined as many as 11 witnesses. The defence evidence is to the effect, that the appellant entered into partnership with Lal Din D. W., Muhammad Sharif, D. W. and Muhammad Hayat D. W. vide partnership deed Exh. D. 3 on the 24th of January 1962 and on the 3rd of March 1962 Lal Din D. W. gave Rs. 30,000.00 to the appellant. The other partners, namely, Muhammad Sharif and Muhammad Hayat also contributed Rs. 5,000.00 and Rs. 6,000.00 respectively. However, I need not dilate upon the evidence of various witnesses produced on behalf of both sides because I propose to dispose of this appeal on a point of law.

6. As already observed the appellant was challaned under sections 408/381, P. P. C. by the police on the allegations mentioned above and his trial proceeded, in the first instance, in the Court of Ch. Muhammad Islam, section 30 Magistrate, Khanewal, who after recording some evidence framed the charge against the appellant under section 381, P. P. C. and after that the case was transferred to the file of Ch. Muhammad Din Rafiq, section 30 Magistrate, Khanewal who framed another charge against him under section 408, P. P. C. and he was tried by the Magistrate for both the charges at one trial and convicted accordingly.

7. The offence as disclosed according to the prosecution evidence about the criminal breach of trust are supposed to have been committed by the appellant when he did not carry forward the balance of Rs. 13,000.00 in the cash book of the deceased Sher Muhammad on the 1st of August 1960 while the offence under section 381, P. P. C. for the theft of Rs. 30,000.00 from the iron safe of Sher Muhammad deceased has been committed some time between 7th of February 1962 when Sher Muhammad died and 5th of March 1962 when on his return from England on the 28th of February 1962 Hafiz Muhammad Abdullah complainant found that Rs. 30,000.00 were missing from the iron safe of his father. In these circumstances both these offences were committed at different times on different occasions and the offence of theft was committed more than one and a half years after the alleged commission of the offence of criminal breach of trust and could not be said to have been committed during the course of the same transaction.

7‑A. When questioned about the legality of the trial under two charges, i.e. 381 and 408, P. P. C. at one and the same time the learned Assistant Advocate‑General rightly conceded that the appellant could not be tried jointly for both these offences at one trial as both the offences were of different nature and a joint trial for both the offences under section 234(2), Cr. P. C. coda not be held. However, the learned Assistant Advocate‑General urged that it was a mere irregularity in the mode of the trial and vas curable under section 537 of the Code of Criminal Procedure. It was further submitted that no failure of justice has occurred in this case and the appellant who was represented by a counsel, had taken no objection to this irregular mode of his trial and, there fore, the objection should not be allowed at this stage. In support of his argument about the absence of the objection on the part of the appellant before the trial Court reliance was played on Emperor v. Harjivan Valji (A I R 1926 Bom. 231). In this case the accused was tried by a Bench of Magistrates for three offences committed by him under section 77 (clause 2) of the Bombay District Municipal Act of 1901 on three different occasions it was held that although the offences were committed on different times it was irregular on the part of the Magistrate to consolidate more than one complaints but the irregularity was one which is curable under section 537 of the Criminal Procedure Code. This case has, therefore, no application to the facts of the present case.

8. The other cases cited in support of his contention by the A. A. G. are (1) In Muhammad Qasim Khan v. Emperor (A I R 1934 Lah. 827) the appellant, Muhammad Qasim Khan, was convicted for an offence of embazzlement of certain amount while in service in British Legation at Kabul. Since the charge related to an offence committed by him at a place beyond the limits of British India he could be dealt with under section 188, Cr. P. C. if the Political Agent certified that the charge ought to be enquired into in British India, Muhammad Qasim Khan was arrested on the 27th of March 1933 in the Attock district and brought before the Additional District Magistrate on the 28th of March 1933 and on the 26th of April 1933 when the evidence was being recorded in the presence of the accused a certificate containing the required declaration was produced in Court which was signed on the 13th of April 1933 by the Minister at Kabul. This certificate was held to be invalid by the Magistrate as the Minister was not considered a Political Agent within the definition of General Clauses Act 10 of 1897, however, the sanction of the local Government was duly received by the Magistrate as required by section 188, Cr. P. C., on the 15th of May 1933. No objection about the absence of this certificate was taken on behalf of Muhammad Qasim Khan between 27th of March 1933 up to 15th of May 1933 and this objection was raised for the first time in appeal and it was held by the High Court that it was defect curable under section 537, Cr. P. C. and having regard to the omission to raise any objection to its absence before the 15th of May 1933 no failure of justice was occasioned by the absence of this certificate between the above‑mentioned dates. But this case is quite distinguishable. In the first instance a certificate for the prosecution of Muhammad Qasim Khan was issued by the Minister of Kabul which was presented in Court on the 13th of April 1933. The learned Magistrate disregarded that certificate as the Minister in Kabul was not a Political Agent within the meaning of section 188 of the Code of Criminal Procedure. Further the presentation of a sanction under section 188 by a competent authority was only a procedural formality and the learned Judge who decided Muhammad Qasim Khan's appeal was right to conclude that no failure of justice was occasioned in that case. The authority is quite distinguishable from the facts of the present case in which two offences of different nature committed by the appellant after one another after more than 11/2 years have been heard and disposed of together at one trial although the offences were of different nature and they were not committed ire the course of one transaction.

9. Munshi Lal v. Emperor (A I R 1948 All. 278). It was a case under Hoarding and Profiteering Prevention Ordinance (XXXV of 1943) and according to the procedure laid down under the Ordinance itself it was to be tried summarily but the Magistrate proceeded to try nit the case as a warrant case. During the course of evidence the prosecuting inspector applied to the Court for adopting a summary procedure but the accused opposed the application on the ground that it would be unnecessary harassment for him to have the case tried de novo according to the summary procedure. The objection of the petitioner succeeded and the Court proceeded with the case as an ordinary warrant case and held that the procedure would neither prejudice the accused nor the prosecution. Taking into consideration that the procedure was adopted with the consent of the accused it was held by the learned Judges that at first it was a case of irregularity which was curable by the provisions of section 537, Cr. P. C. as they stood at the relevant time in India. To the similar effect is Ahmad Husain v. State (A I R 1958 All. 443) and Willie William Slaney v. State of Madhya Pradesh (A I R 1956 S C 116).

10. The last case cited by the learned counsel for the State was Amir Bakhsh v. State (P L D 1960 Lah. 15). In this case "A" was challaned and tried by the Sessions Judge on a charge under section 302, P. P. C. for committing murder of two persons by running them over by his truck while they were sleeping on their charpais on the pavement of the road in Multan. "A" was convicted under section 304, Part II and sentenced to seven years' rigorous imprisonment. On appeal a learned Single Judge of this Court held that the charge against the accused under section 302, P. P. C. was that be had committed the murder of two persons by running them over by his truck while they were sleeping on their charpais on the pave ment of the road and on these facts there was an element of doubt as to whether "A" has committed an offence under section 302, 304 or 304‑A, P. P. C. In view of the Provisions of section 239, Cr. P. C. "A" would have been charged with having committed all or any of such offences or he should have been committed with any one or some of the charges. Consequently the conviction. of "A" was altered from 304 Part (II) to 304(A), P. P. C. although he was not specifically charged with that offence. In this case it was found that the accused knew very well at his trial what evidence he had to lead and, therefore, the question of prejudice was not accepted.

11. To the case of the present appellant none of the authorities cited above will be attracted. So far as the case decided by the Allahabad High Court is concerned it related to a period when section 537 Cr. P. C. had been amended in India in the year 1955 but in the present case the appellant was challaned, tried and convicted at a time when a similar amend ment in Pakistan was not introduced. I am not prepared to follow A I R 1956 S C 116 for the reason that the Supreme Court of Pakistan had decided quite differently on he subject and I am bound by it. In Mosaddar Hoque v. State { P L D 1958 S C 1 3 1) in a case under section 161, P: P. C. read with section 5(2) of the Prevention of Corruption Act, 1947, the accusation put to one accused who was Sub‑Registrar was that he received in his official capacity an illegal gratification of Rs. 15 for registering a deed presented to him. There was no reference in the charge to what the second appellant, the Muharrir, was alleged to have done. Similarly in the allegation to the second appellant that he in his official capacity received an illegal gratification of Re. 1 for issuing a receipt in connection with the registration of a deed there was nothing to show that the act alleged against the second appellant had any connection with what was alleged against the first appellant. Their Lordships of the Supreme Court observed that:‑

"There was nothing to link the acts alleged against the appellants into the "same transaction". It cannot be said of either act that it was a cause or effect of or the occasion for the other. On the other hand, each was a transaction by itself. There was no common object in the sense that one helped the other in receiving an illegal gratification. The object of the sub‑Registrar was to receive an illegal gratification of Rs 15 for himself and the object of the Moharrir was to receive a rupee for himself.

In the circumstances the joint trial of the appellants was illegal. No question as to whether prejudice was caused or not need be considered as illegality had resulted from adopting a mode of trial prohibited by the Code and it cannot therefore be cured under section 537, Criminal P. C."

With reference to section 233 of the Cr. P. C. in this case their Lordships proceeded to observe as follows:‑

"Section 233 lays down the primary rule that there should be a separate charge and a separate trial for every distinct offence and it is obvious that the principle of this rule is that embarrassment to the accused and confusion to the jury should not be caused by a number of charges based on disconnected allegations being tried together. Section 233 itself indicates the exceptions to the general rule but it is clear from their language that their object is only to avoid duplication of proceedings. They should therefore be construed with strictness and not to defeat the right of separate trial conferred under the section."

In G. H. Astell v. T. Eng Take (A I R 1941 Rang. 337) it was held that where an accused was alleged to have committed an offence over a period of two years the trial was plainly prohibited by the Code of Criminal Procedure and illegal and that the conviction must be set aside. It has usually been held on the authority of this case that where there has been misjoinder of charges of this kind the whole trial is vitiated and the conviction must be set aside quite apart from any question of prejudice to the accused. In the present case the allegation against the appellant is that he misappropriated a sum of Rs. 13,000.00 because he did not carry, it forward on the 1st of August 1960. This was an allegation of criminal breach of trust against the appellant. While on the complainant's return from England after the death of his father Sher Muhammad he found that the appellant had refused to deliver the key of the iron safe to the complainant and when with great struggle the complainant was able to take it back from the appellant he found that Rs. 30,000.00 were missing. This is a case of committing theft within the meaning of section 381, P. P. C. It seems to me to be clear that there was no dishonest intention on the part of the accused at the time when he committed his first offence under section 408, P. P. C. by misappropriating the alleged amount of Rs. 13,000.00 so as to connect it with the subsequent offence of theft committed by the appellant after the death of Sher Muhammad. In my opinion section 537, Cr. P. C. deals with mere errors and irregularities in the charge and not with illegalities such as trial of an accused person for more than one offences of different nature at one trial which is not allowed by law. Section 537, Cr. P. C. affords no real ground to assume that when a mandatory pro vision of the Code is violated in framing the charge and a different mode of trial is adopted then such an irregularity is always curable.

12. Learned counsel for the State tried to distinguish the case of Mosaddar Hoque v. State on the ground that it may not be considered to be a good law in view of the latest amendment of the Code of Criminal Procedure West Pakistan Amendment Act No. XVII of 1964. According to this amendment clause (b) has been inserted after clause (a) under section 537, Cr. P. C. as follows:

"(b) of any error, omission or irregularity in the charge or mode of trial, including any misjoinder of charges,".

and relied on Nura v. State (P L D 1966 Lah. 383) where "N" was tried for the murder of one and murderous assault on the other occurring different places and at different times it was held by their Lord ships of the Division Bench that the offence cannot be held to have been committed in the course of same transaction but in the absence of prejudice to the accused it was considered to be a mere irregularity curable under section 537. In this case the trial was concluded on the 13th of May 1964 when the above amendment of section 537 had already been enacted and the learned Judges held at page 388 that:

"The amendment in section 537, Criminal Procedure Code makes the misjoinder of charges as an irregularity in the proceedings curable under section 537 of the Code of Criminal Procedure provided it has not occasioned a failure of justice."

The above amendment has no retrospective effect and sitting single I should have followed the above authority of the Division Bench of this Court but the case of the appellant was concluded at a time when un-amended section 537 of the Criminal Procedure Code was in force and, therefore, the present appeal has to be determined and decided in accordance with the provisions of the law applic able at the time when the trial was concluded and the conviction was recorded. At that time the un-amended section 537 could not cure the illegality which was committed by the misjoinder of charges and the case of Mosaddar Hoque decided by the Supreme Court will be applicable to the present case. The appellant has a right to get his appeal decided according to the law applicable prevailing on the date of decision of the case. Ghazi v. State (P L D 1962 Lah. 662) Section 233 of the Code of Criminal Procedure deals with the joinder of charges whether in respect of same person or whether there were different persons in respect of different charges. It is immaterial whether the misjoinder is with respect to different offences committed by the same person or in respect of same offence committed by different persons. The words under amended section 537, Cr. P. C. related to the misjoinder of charges and these words clearly include misjoinder of offences or of accused persons. Under section 537, Cr. P. C. only an irregularity in charge is cured and that too in a case where it has not occasioned a failure of justice. The present case is not, however, of irregularity in the framing of a charge but goes further and covers an irregularity in a trial which is prohibited by law. This disregard of the provisions of the Code of Criminal Procedure cannot be considered a mere irregularity and this contravention cannot be said to fall within the description of error, omission or irregularity. The mode of trial adopted in this case is not warranted by any enactments or rules and as such the trial is much more than an irregularity.

13. As a result of the above discussion I will accept this appeal, remand the case to the trial Magistrate under section 423 of the Code of Criminal Procedure with the direction that he will try both the cases under section 408, P. P. C. and 381, P: P. C. separately in accordance with the provisions of section 233 of the Code of Criminal Procedure.

K. B. A. Appeal accepted.

Case remanded.

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