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Criminal Appeal No. 81 of 1985, heard on 7th November, 1985.

‑‑‑S. 231‑‑Penal Code (XLV of 1860), Ss. 408 a 477‑A‑‑Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984), S.5‑ Charge‑‑Special Judge after framing charge against accused proceeded to record evidence‑‑During pendency of trial Ordinance IX of 1984 was promulgated and case stood transferred to Court of Presiding Officer of Special Court of Banks‑‑Transferee Court amending charge and bringing on record evidence of a prosecution witness previously recorded‑‑In charge framed by first trial Court amount alleged to have been misappropriated, was thirty thousand and in second charge framed by Special Court of Banks amount allegedly misappropriated was increased‑‑Prosecution witness who was examined after framing of first charge was not re‑examined after framing of second amended charge‑ Witness in his deposition had exceeded amount allegedly, misappropriated in first charge‑‑No attempt was made to alter charge before recording deposition of witness though he proposed to testify in excess of amount and item mentioned in charge framed earlier‑‑Special Court of (Offences in Respect of Banks) framing second charge in which amount allegedly misappropriated was increased and with exception of one offence, offences were also changed‑‑Second trial Court convicting accused after recording other evidence‑‑Special Court observing in order of conviction that prosecution witness whose statement was transferred on record of Special Court not resummoned as accused did not wish to cross‑examine him‑ Such observation of trial Court found against record ‑‑Misjoinder of offences also found in amended charge‑‑Provisions of S.231, Cr.P.C. with regard to recall of witnesses when charge is altered, held, had not been properly complied with‑‑Conviction of accused set de and case remanded for retrial.

‑‑‑S. 234‑‑Offences in Respect of Banks (Special Courts) Ordinance (1X of 1984), S.5‑‑Penal Code (XLV of 1860), Ss. 408 & 477‑A‑‑Misjoinder of offences iii charge‑‑Five different transactions discovered during investigation‑‑Charge vaguely stating that within period of one year accused received certain amount in all from several parties which he misappropriated as such offences fell under Ss. 408 a 477‑A, Cr.P.C.‑ Held, both offences, were different in nature and could not be bunched together‑‑Three offences of criminal breach of trust committed within one year may be put together in charge and likewise three offences relating to falsification of accounts committed within one year could be put in a charge‑‑Trial of two or more charges of criminal breach of trust could not legally be joined with two or more charges of falsification of accounts‑‑Charge, should have been framed in view of five transactions in order to find out as to which relate to criminal breach of trust and which to falsification of accounts‑‑Charge even otherwise found to have been framed in contravention .of S. 231, Cr.P.C.‑‑ Conviction set aside and case remanded for retrial.

Nagendra Nath Sen v. Emperor A I R 1932 Cal. 486 rel.

Raja Qureshi for Appellant

A. Sattar for the State.

Dates of hearing: 6th and 7th November, 1985.

This appeal is directed against the judgment dated 31‑3‑1985 of learned Presiding Officer, Special Court of Sind (Banks) at Karachi, impugned herein, whereby appellant has been convicted for offence under section 408, P.P.C. and sentenced to R.I. for 5 years and fine of Rs.1,20,000 or in default R.I. for 1 year. Appellant is also convicted for offence under section 477‑A, P.P.C. and sentenced to R.I. for 5 years and fine of Rs.10,000 or in default R. I. for 1 year. Both the sentences awarded have been directed to run concurrently. It is also directed that from fine recovered, a sum of Rs .53, 910 shall be paid to Jatia Goth Branch of U.B.L. as the offences alleged against the appellant were committed in that branch.

Briefly stated the relevant facts giving rise to this appeal are that on 3‑2‑1980 Ghazanfar Ali Khan, Zonal Development Manager of United Bank Limited sent a written complaint to the S.H.O. Police Station Shahdadpur for registration of F.I.R. against Ghulam Muhammad Lutfi appellant in this case. It is alleged in the written complaint that its author on 31‑10‑1979 inspected branch of the United Bank Limited situated in Jatia Goth and detected some acts of misappropriation and breach of trust committed by the appellant who was at the relevant time Manager of the branch, having served therein up to 21‑6‑1977. Four such instances were quoted involving amounts of Rs.25,910, Rs.30,000, Rs.12,539.80 and Rs.2.100. It is further stated that in the complaint that amounts misappropriated have been recovered from the appellant. This complaint was forwarded to Inspector F.I.A. who filed F.I.R. on the basis of it and investigate the case. F.I.R. was registered on 21‑6‑1980 and the offences alleged therein are Under sections 409, 421, 467, 468 , P.P.C. read with section (2) , Prevention of Corruption Act I of 1947. After the completion I of investigation challan was presented in the Court of Special Judge (Central), Karachi on 2‑11‑1981. Charge was framed and only one witness Zafarul Haq was examined in that Court after which present law i.e. the Offences in Respect of Banks (Special Courts) Ordinance No. IX of 1984 (hereinafter to be referred as said Ordinance) was promulgated and the case stood transferred to the Court of Presiding Officer of the Special Court of Sind (Banks) Karachi, whose judgment is impugned in appeal before us.

The 2nd trial Court amended the charge and brought on the record evidence of P.W. Zafarul Haq previously recorded by Special Judge on 1‑4‑1984. Four other witnesses were examined namely P.W. 2 Ghazanfar Ali Khan Assistant Vice‑President United Bank Limited, P.W.3 S.M. Sharif Farooqui, Inspector F.I.A. P.W. 4 Muhammad Islam employee of Messrs Indus Farm Service, P.W. 5 Naeemuddin, holder of Account No .37 and P.W. 6 Muhammad Yaqoob holder of Account No.27.

Before the trial Court appellant in his 342, Cr.P.C. statement denied allegation of misappropriation in respect of Rs.30,000 received for preparation of demand draft. In respect of other small amounts admitted to have deposited them not on the same day but subsequently. He stated further that prosecution witnesses were deposing against him because they were under the influence of the Bank. He further stated that Each. 4 was taken from him under duress. He has re‑paid the entire amount to the Bank on the assurance given to him that no legal action would be taken. This assurance was given by P.W. Ghazanfar Ali Khan who denied the same. Appellant further stated that he was a poor man and had remained in custody for about 6 weeks and had disposed of his entire life savings to re‑pay the entire amount to the Bank. He further stated that he had lost his job and continued suffering for past 4 years. He declined to give any evidence in ,his defence.

We have heard Mr. Raja Qureshi, Advocate for the appellant and Mr. Abdul Sattar Advocate for the State. At the very outset it was submitted on behalf of appellant that originally the first charge was framed on 13‑2‑1982 by Special Judge (Central), Karachi (Mr. Qazi Atta Muhammad) in which the amount alleged to have been misappropriated was only Rs.30,000 for preparation of demand draft in favour of E.M.I. Mills, Karachi and subsequently in the second charge framed on 12‑2‑1985 by Presiding, Officer Special Court of Sind (Banks) Karachi, amount allegedly misappropriated has been increased from' Rs.30,000 to Rs.53,910 collectively from E.M.I. Mills and three other parties namely, Messrs Indus Farm Services' Mr. Naeemuddin and Mr. Yaqoob. In this context grievance was made that Mr. Zafarul Haq, who was examined after the framing of first charge was not re‑examined after the framing of the second amended charge. We find from the record that first charge was framed on 13‑2‑1982 and Mr. Zafarul Haq A was examined by the then Special Judge (Central), Karachi on 1‑4‑1984. In the deposition witness Zafarul Haq has exceeded amount of Rs.30,000 in the first charge and testified about other items as well increasing the amount allegedly misappropriated to Rs.53,910. It appears that no attempt was made to alter the charge before recording deposition of that witness for the reason that he proposed to testify in excess of the amount and item mentioned already in the charge framed earlier. Second Charge was framed by the present trial Court on 12‑2‑1985 in which the amount was increased to 53,910 and even the offences are under different sections with the exceptions of section 477‑A. P.P.C. which is common in both the charges. We have seen the original amended charge, which is signed by the learned Presiding Officer on 6‑3‑1985 and the typed date of 12‑2‑1985 has been scored off It is submitted by the learned counsel for the appellant that after the amended charge Zafarul Haq should have been re‑examined for the reason that his previously recorded deposition was faulty on the ground that it was not consistent with amount and items mentioned in the first charge. On the subject of charge, the relevant law can be found in Chapter XIX of Cr.P.C. section 221, Cr.P.C. contemplates that every charge under this Code shall state the offence with which the accused is charged. Section 222, Cr.P.C. requires that particulars as to time, place and person must be given in the charge. Section 223 requires that manner of committing offence must be stated in the charge section. 227 provides that Court may alter or add to any charge at any time before the judgment is pronounced. Section 231 of the Code provides that after the charge is altered or added by the Court, Prosecutor and accused shall be allowed to re‑examine the witnesses who were previously examined before the alteration of the charge.

In the impugned Judgment it is stated that since the appellant did not wish to cross‑examine P.W. Zafarul haq after amendment oil charge, the said P.W. was not re‑summoned. In the light of this observation made by the trial Court when the record was seen, it appeared that the charge was altered or amended by the trial Court on 6‑3‑1985 and before that on an earlier date that is 11‑2‑1985 the trial Court had already examined P.W.2 Ghazanfar Ali Khan and P.W.2. Inspector Sharif and the latter witness was also cross‑examined. Case was adjourned to 6‑3‑1985 and on that date charge was amended. Perusal of the original record shows an order passed by the learned Presiding Officer in the order sheet is undated but it can be presumed that that order was passed on 6‑3‑1985 because it is stated therein that the case was reserved for judgment on 31‑3‑1985 and on 31‑3‑1985 the judgment was announced. In the paper book it appears in the order sheet on page 5 that the accused in his 342, Cr.P.C. statement' denied certain B allegations and did not wish to lead any evidence and further did not wish to cross‑examine P.W.1 Zafarul Haq after amended charge. It was surprising to note as to why accused should say anything about not choosing to cross‑examine a particular witness in his 342, Cr.P.C. statement as such statement under section 342, Cr.P.C in original was scrutinised in which neither there was found any such question nor any such answer with regard to the expression of desire by the accuses not to cross‑examine P.W. Zafarul Haq after amended charge. When original as diary was seen in the record (one of 2 files not exhibit portion) it appeared that the order was written in long hand in dim ink and subsequently a sentence appeared to have been added with bright ball point saying that accused does not wish to cross‑examine P.W. Zafarul Haq after amended charge. Now if added sentence in this order is omitted then the order will give impression that the prosecution closed its case and 342, Cr.P.C. statement of accused was also recorded and the arguments were heard and the case was reserved for judgment.

In the deposition of Ghazanfar Ali Khan on page 13 (file with exhibit portion) a note appeals at the bottom saying that further cross examination of this witness is reserved and is directed to produce Cash Transfer Register. Deposition is closed under the signature of the Presiding Officer and after that there is another note in which it is stated that the Prosecuting Inspector has pointed out that in the' charge framed by Special Judge, four other items of misappropriation are not mentioned as such the charge is to be re‑framed and P.Ws. re‑examined. It is observed by the learned Presiding Officer that since the case is already adjourned to 6‑3‑1985, the P.Ws. be bound down for that date and on that date he would consider the question whether the charge be re‑framed or hot. It appears that or, 6‑3‑1985 most probably this fact escaped the notice and the remaining P.Ws. were examined in the ordinary course and even the statement of accused under section 34: Cr.P.C was also recorded and the arguments were heard find the case was reserved for judgment. After that this fact was noticed and by way of completing the formality a sentence was subsequently added in different ink in the order sheet which is undated but it appears that, that order was passed on 6‑3‑1985, but sentence was added on 31‑3‑1985. Amended charge in original (file exhibit portion) also shows that the date typed for it was 12‑2‑1985 which was scored off anti the learned Presiding Officer has signed it on 6‑3‑1985. It, therefore, appears that provision of section 231. Cr.‑P.C. with regard to the re‑call of witnesses when the charge is altered have not been properly complied with.

Another defect in the conduct of proceedings before the trial Court relates to the joinder of offences in the subsequent amended charge. Section 234, Cr.P.C. contemplates that only three offences of the slime kind committed within one year may be charged together. Amended charge vaguely states that from 1‑8‑1978 to 8‑7‑1979 accused received in all Rs.53,910 from several parties which he misappropriated as such the offence fell under sections 408 and 477‑A, P.P.C. Section 408 , P .P.C. is criminal breach of trust by clerk or servant and section 477‑A P.P.C is falsification of accounts. Both offences are different in nature and cannot be bunched together. Three offences of criminal breach of trust‑committed within one year may be put together in the charge and likewise three offences relating to falsification of accounts committed within one year could be put in a charge. Trial of ‑two or more charges of criminal breach of trust cannot legally be joined with two or more charges of falsification of accounts. In support of proposition stated above reliance is placed on the case of Nagendra Nath Sen v. Emperor A I R 1932 Cal. 486. In the instant case if original charge sheet/challan (file exhibit portion), dated 17‑10‑1981 filed in the, Court of Special Judge is perused, it would appear that in the result of investigation by F.I.A. five different transactions were discovered relating to dates from 5‑8‑1978 to 8‑1‑1979. Charge should be framed, keeping in view these transactions in order to find out which relate criminal breach of trust and which to falsification of accounts.

For the reasons stated above we set aside the impugned judgment and allow the appeal and remand the case to the trial Court with directions to commence proceedings from the stage of framing of charge rind then proceeding further strictly according to law. We observe further that since this case is very old, it would be satisfactory if the trial Court disposes of this case within one month.

H.A.K. Appeal accepted and case remanded.

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