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Criminal Appeal No. 111 of 1949, decided on 14th June 1949, from the order of Magistrate First Class, with Section 30 Powers, dated 25th
November 1948.
(a) Criminal Procedure Code (V of 1898), Ss. 35, 367 (2) Separate sentences for convictions on separate charges, not passed- Irregularity is curable under section 537 (a) -Penal Code (XLV of 1860) S. 71.
The trial Court should have passed separate sentences for convic tions on separate charges. The direction to this effect in the High Court Rules and Orders, Volume III, Chapter 19-A, para. 5 is in the following words :-
"When a person is convicted of more than one offence, the Court should be careful to pass a separate sentence for each offence, so that if the conviction is set aside on appeal with respect to one of the offences, there should be no room for doubt as to the sentences passed with respect to the rest."
The failure of the trial Court to specify the sentences under each count may, however, be treated as an irregularity and the sentence passed may be treated as a concurrent sentence under both the sections. [p. 181]. I L R 10 All. 58 ;.A I R 1933 Sind 9 referred to. A I R 1924 All. 492 followed.
(b) Penal Code (XLV of 1860), Ss. 232 and 235-Separate convic tions and sentences under these two sections are illegal.
The offence described in section 235, Indian Penal Code, is included in the offence described in section 232, Indian Penal Code and separate convictions and sentences under these two sections are improper and illegal. [p. 182]. 14 P R 1904 ; A I R 1924 Lah.. 78, followed.
It is clear from the wording of section 235, Penal Code, that it is the possession of any instrument or material for the purpose of counterfeiting that is made punishable, not -the knowledge that some one else is in such possession. [p. 183]. A I R 1933 Patna 272. followed.
(d) Criminal Procedure Code (V of 1898), S. 439-Conviction of accused who had not appealed can be set aside by High Court under S. 439 while disposing of appeals of other co-accused.
Mst. Sharifan has not appealed, but in view of my finding that no offence has been proved against her, I take cognizance of her case under section 439, Criminal Procedure Code, and set aside her conviction and sentence.
(e) Criminal Procedure Code (V of 1898), S, 510-Report of the Mint Master who was not produced as witness, is not evidence and conviction on the basis of this evidence is illegal.
According to section 510, Criminal Procedure Code, the report of the Chemical Examiner or Assistant Chemical', Examiner to the Govern ment may be used as evidence in any inquiry or trial ; but there is no such provision for reports by any other officers of the Government. [p. 184]. A I R 1936 All. 142 relied on, 88 Ind. Cas. 848, referred to.
Hamid-ud-Din, for Appellant.
Iftikhar-ud-Din Ahmad, for Advocate-General.
-Zamir Hussain, his brother Riaz Hussain, his wife's father Jowahar Khan, his wife's brother Muhammad Latif and his wife Mst. Sharifan, were convicted under sections 232 and 235, Indian Penal Code, by Ch. Qadir Bakhsh, Section 30 Magistrate Lahore. Zamir Hussain was sentenced to seven years' rigorous imprisonment and Rs. 2,000 fine; in default of payment to two years' further rigorous imprisonment. The other four accused were sentenced to three years' rigorous imprisonment and Rs. 500 fine ; in default to one -year's further rigorous imprisonment each.
In a separate trial Zamir Hussain, Riaz Hussain and Latif were convicted under sections 240 and 243, Indian Penal Code. Zamir Hussain was sentenced to seven years' rigorous imprisonment and Rs. 2,000 fine ; in default to two years' further rigorous, imprisonment. Riaz Hussain' and Latif were sentenced to five years' rigorous imprisonment and Rs. 100 fine each ; in default to one year's further rigorous imprisonment. In the case under sections 232 and 235, Indian Penal Code, Zamir Hussain, Riaz Hussain, Jowahar Khan and Latif have filed .separate appeals. Mst. Sharifan has filed no appeal. In the case under sections 240 .and 243, Indian Penal Code, all the three convicts, namely Zamir Hussain, Riaz Hussain and Latif, have filed separate appeals. The four separate appeals against convictions under sections 232 and 235, Indian Penal Code, and the three separate appeals against convictions under sections 240 and 243, Indian Penal Code, will all be disposed of by this order.
In the judgments relating to both the cases it is not specified by the learned trial Magistrate what sentences are awarded respectively under the two sections of the Indian Penal Code for which the accused were convicted. It is urged by the learned counsel for the appellants that it was the duty of the trial Court to specify separately the sentences awarded under each section. Reliance is placed on section 367 (2), Criminal Procedure Code, which lays down that a judgment shall specify the offence and the section of Indian Penal Code or other law under which the accused is convicted, and the punishment to which he is sentenced. Section 35, clause (1), Criminal Procedure Code, says that when a person is convicted at one trial of two or more offences, the Court may, subject to the provisions of section 71 of the Indian Penal Code, sentence him for such offences to the several punishments pres cribed therefor which such Court is competent to inflict. In Queen Empress v. Wazir Jan (I L R 10 All. .58) it was held by Mr. Justice Mahmood that where more than one offence is proved in respect of which . the accused has been charged and tried, a conviction for each offence must follow and, subject to the provisions of section 71, a separate sentence must be passed in respect of each such conviction. In Emperor v. Dharamdas Lilaram (A I R 1933 Sind 9), this view was followed and it was held that the word "may" in section 35, Criminal Procedure Code, did not only confer. a power but also imposed the duty of putting that power into practice.
The learned counsel for the Crown has urged in reply that the failure to pass separate sentences is a curable irregularity under section 537 (a) Criminal Procedure Code, and ,does not vitiate the conviction. One sentence on two charges should be interpreted as a concurrent sentence on both charges. . Reliance is placed on Sohan Amir v. King Emperor A I R 1924 All. 492, where the applicant Sohan was charged with two offences under sections 326 and 148, Indian Penal Code. He was convicted on both charges and sentenced to eighteen months' rigorous imprisonment. The learned Sessions judge in appeal acquitted the accused of the offence under section 148, but maintained his conviction and sentence of eighteen months' rigorous imprisonment under section 326, Indian Penal Code. In revision it was argued that where a judgment was framed in the form in which the judgment of .the trial Magistrate .was framed, it must be taken that the Magistrate intended to impose a separate sentence of nine months' rigorous impri sonment under each charge. This contention was not accepted and it was held .that .where a Magistrate convicts under two sections and intends to pass concurrent sentences, it is a very common, though some what slovenly method, to say, "I pass sentence under section so and so." In such cases, it was held, the sentence must be interpreted as meaning that the Magistrate passed concurrent sentences under each section.
I am of the opinion that the trial Court should have passed separate sentences for convictions on separate charges. There is a direction to this effect in the High Court Rules and Orders, Volume III, Chapter 19-A, paragraph 5 in the following words :-
"When a person is convicted of more than one offence, the Court should be careful to pass a separate sentence for each offence, so that if the conviction is set aside on appeal with respect to one of the offences, there should be no room for doubt as to the sentences passed with respect to the rest."
The failure of the trial Court to specify the sentences under each count may, however, be treated as an irregularity and the sentence passed may be treated as a concurrent sentence under both the sections.
Turning now to the facts, it appears from the evidence in the case under sections 240/243, Indian Penal Code, that Zamir Hussain, Riaz Hussain and Muhammad Latif went to the shop of Ghulam Hussain P. W. in Anarkali Bazar on 14th September 1948, and asked for some cigarettes. Zamir Hussain offered a coin of one rupee in payment of the cigarettes but the coin was refused on the ground that it was counterfeit. Then Riaz Hussain paid half an anna and took just one cigarette and returned the others. The three accused then went to the shop of Abdul Haq P. W. across the road, to buy some sweets. Zamir Hussain again offered a rupee coin which was returned as counterfeit and nothing was bought here. Abdul Hamid and Amir Bakhsh P. Ws. were sitting in Abdul Haq's shop at this time. From there the accused went to the shop of Rahim Bakhsh P. W. and wanted to buy some pans. Zamir Hussain offered a rupee coin which was refused as counterfeit. Then Riaz Hussain offered another rupee which was also returned as bad. Ghulam Hussain on seeing the accused going from his shop to the shop of Abdul Haq, began to suspect them and went over to Abdul Haq's shop to find out what the accused did there. He kept an eye on them and when they went to the shop of Rahim Bakhsh, Ghulam Hussain, accompanied by Abdul Hamid and Amir Bakhsh, went there and took the accused to the police station. Ghulam Hussain gave the information detailed above and a case under sections 240/243 was registered against the three accused.
On the same day Zamir Hussain took the police to his house and produced various instruments for counterfeiting coins. Riaz Hussain and Muhammad Latif, who were in police custody, did not go with them. Zamir Hussain's wife Mst. Sharifan and her father Jowahar Khan were in the house. The articles suspected to be instruments for counterfeiting were taken into possession by the police and marked at the trial as Exhibits. P.1 to P.38, Zamir Hussain, Riaz Hussain Muhammad Latif, Jowahar Khan and Mst. Sharifan were prosecuted for being in possession of instruments intended for counterfeiting coins, under section 235, Indian Penal Code ; and for counterfeiting coins under section 232, Indian Penal Code.
It is urged by the learned counsel for the appellants that the offence described in section 235, Indian Penal Code, is included in the offence described in section 232, Indian Penal Code, and separate convictions and sentences under these two sections are improper and illegal. This is conceded by the learned counsel for the Crown, who has cited "Bishan Das v. King Emperor" A I R 1924 Lah. 78, as an authority for the proposition that separate convictions and sentences under sections 235 and 232 are illegal. The accused in that case were convicted under sections 235 and 232, Penal Code, for being in possession of implements and materials for counterfeiting and for actually counter feiting Kings coins. They were sentenced to various terms of imprison ment under each section. It was held by Abdul Raoof, J. following "Hayat v. Emperor" 14 P R 1904, that the possession of such implements and materials is part and parcel of the transaction of counterfeiting coins and, therefore, the sentences passed on the appellants under section 235, Indian Penal Code, were illegal.
The learned counsel for the appellants has further urged that there is no evidence whatsoever that any one of the five accused in that case under sections 232/235, Indian Penal Code, was counterfeiting or knowingly performing any part of the process of counterfeiting, The conviction under section 232, Indian Penal Code, was, therefore, unsus tainable. I have gone through the evidence and found no evidence to this effect. The conviction under section 232, Indian Penal Code, is therefore, unsustainable. As regards section 235, Indian Penal Code, it is urged that only the person who is in possession of any instru ment or material for the purpose of using the same for counterfeiting coins, or knowing or having to believe that the same is intended to be used for that purpose, can be convicted under that section. Zamir Hussain appellant has admitted that he was in possession of these instruments and that he had been counterfeiting and uttering counterfeit coins. The other persons who were living with him, for example his wife Mst. Sharifan, or his relatives who may have come on a short visit to his house cannot be held guilty of this offence. Reliance was placed on "Lachminiva v. Emperor" A I R 1933 Pat. 272 where it was held that when instruments and materials for counterfeiting coins are found in a house and it is sought to fix responsibility upon any member of the family, except the head of the family, it is necessary to prove that the possession and control were not only with the head of the family but with the subordinate members also. The mere fact that a wife knows that certain implements and materials are in the possession of her husband and the place where those implements and materials are kept, does not necessarily indicate that she herself is in possession of those articles and cannot be convicted under section 235, Indian Penal Code. These observations are applicable to the brother-in-law and father-in- law of Zamir Hussain, who have, like his wife, pleaded innocence. It is clear from the wording of section 235 Indian Penal Code, that it is the possession of any instrument or material for the purpose of counterfeiting that is made punishable, not the knowledge that someone else is in such possession. All that can be said against the appellants, other than Zamir-Hussain, who has confessed his guilt in both cases, is that, living in the house of Zamir Hussain, they knew or were in a position to know that there were instruments and materials for counterfeiting in the house. People are not required by law to give information to the public authorities of all kinds of offences which come to their knowledge. Section 44, Criminal Procedure Code, specifies the offence regarding which it is the duty of every person to give information to the nearest Magistrate or police officer. Sections 232, 235, 240 and 243 do not find place in this section. Under clause (e) of section 45, Criminal Procedure Code, village headmen, village accountants, village watchmen, village police officers, owners or occupiers of land and officers employed in the collection of revenue, etc. are required to give information to public authorities relating to offences under sections 231 to 238, Indian Penal Code. The appellants do not belong to any such class of persons. It is, therefore, clear that the appellants, other than Zamir Hussain, have not been proved to be guilty of any offence under section 235, Indian Penal Code.
Mst. Sharifan has not appealed, but in view of my finding that no offence has been proved against her, I take cognizance of her case under section 439, Criminal Procedure Code, and set aside her conviction and sentence. I accept the appeals of Riaz Hussain, Jowahar Khan and Muhammad Latif against their convictions under sections 232 and 235 Indian Penal Code.
As regards the case against Zamir Hussain, Riaz Hussain and Muhammad Latif under sections 240 and 243, Indian Penal Code, the fatal objection against their conviction is that there is no proof that coins which were found in their possession or which they attempted to deliver to the witnesses, produced by the prosecution, were counter feit. They were sent to the Mint Master for examination and he made a report that the coins were counterfeit ; but the Mint Master was not produced as a witness in the case and his report is not evidence. According to section 510, Criminal Procedure Code, the report of the Chemical Examiner or Assistant Chemical Examiner to the Government may be used as evidence in any inquiry or trial but there is no such provision for reports by any other officers of the Government. In "Bhoore Singh and others v. Karam Singh" A I R 1935 All. 142, it was laid down that if a Court wishes to rely upon the report of an expert he should be produced and his evidence tested by examination and cross examination in open Court; and unless this is done the report does not by itself become evidence in the case. In "Mst. Gilli v: Emperor" 88 I C 848 the Assistant Mint Master of Calcutta was considered to be an expert witness with regard to coins and instruments for coining. Objection was taken in that case that the Assistant Mint Master was examined by the trial Court on commission instead of being examined in the trial Court. This abjection did not prevail because there is a clear provision in the Criminal Procedure Code (Section 503) that whenever, in the course of an inquiry or trial, it appears to a Court that the attendance of a witness cannot be procured without unreasonable delay, expense or inconvenience, his personal attendance may be dispensed with and a commission may be issued to the District Magistrate or a Magistrate of the First Class within the local limits of whose jurisdiction such witness resides, to take evidence of such witness. This case was cited to show that "the evidence of the Mint Master, either in Court or by commission, was indispensable. This is conceded by the learned counsel for the Crown. The result is that, in the absence of any evidence that Riaz Hussain and Muhammad Latif were uttering or were in possession of counterfeit coins, their conviction under sections 240 and 243, Indian Penal Code, must be set aside.
There remains now only the case of Zamir Hussain, who has admitted his guilt. I can see no reason why his convictions should not be maintained. Besides the evidences led by the prosecution there is his own confession, corroborated by the recovery from his possession of various instruments and materials for counterfeiting and by the evidence of Mr, Rizvi, Magistrate, before whom Zamir Hussain not only confessed his crime, but actually counterfeited two coins marked Exhibits P. 6 and P. 7. On his behalf the plea is the sentence of seven years' rigorous imprisonment and Rs. 2,000 fine is excessive. The sentences given to him in the two separate cases mentioned above were ordered to run concurrently. I maintain his convictions in both cases ; but I consider that. the sentence of seven years' rigorous imprisonment without the fine of Rs, 2,000 and the sentence in default is sufficient. I, therefore, set aside the sentence of fine and maintain the sentence of seven years' rigorous imprisonment awarded to Zamir Hussain in the two cases. The sentences will run- concurrently, as ordered by the trial Court: I accept the appeals of Riaz Hussain, Jowahar Khan and Muhammad Latif in both the cases mentioned above and order their acquittal. I also order the acquittal of Mst. Sharifan under section 439, Criminal Procedure Code, and set aside her conviction.
K.M.A. Sentence reduced
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