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Criminal Appeal No. 1141 BWP of 1979, decided on 27th August, 1984.

‑‑‑S. 161‑‑Prevention of Corruption Act (I1 of 1947), S.5(2) Criminal Procedure Code (V of 1898), Ss. 233, 234, 235, 236 a 239‑‑Prescribed mode of trial‑‑Disregarded‑‑Effect‑‑Appellant tried in one trial and convicted for accepting bribe from 11 persons at different times‑‑There has to be a separate charge for every distinct offence and every charge to be tried separately except in cases coming within ambit of Ss.234, 235, 236 & 239, Cr.P.C.‑‑Joint trial unless case fell within exceptions to S. 233, Cr.P.C. prohibited‑‑One trial of accuser for distinct offences, held, was entirely illegal‑‑Entire proceedings including order of conviction stood vitiated‑‑Proceedings . and conviction set aside‑‑Case remanded for fresh trial.

Malik Muhammad Din for Appellant.

Ozair Chughtai for the State.

Date of hearing: 27th August, 1984.

This criminal appeal arises from the judgment of the learned Special Judge, Anti‑Corruption, Bahawalpur, whereby he on 19‑11‑1979 convicted Bashir Ahmad appellant under section 161 and section 5(2) of the Prevention of Corruption Act, 1947 and sentenced him to two years' R.I. on each count and a fine of Rs.1,000 in default thereof to further R.I. for 6 months with the direction that the sentences would run consecutively.

2. The appellant was working as Canal Patwari in Chak No. 28. The charge against him was that he accepted bribe from 11 persons at different times for giving Kharaba to them.

3. Since after hearing the learned counsel I do not desire to go into merits of the case because it is very much obvious that due to disregard of provision as to the mode of trial, the entire proceedings including the order of conviction stands vitiated, therefore, I need not set out the facts in detail. The appellant was tried on the charge that he accepted Rs.45, 45, 90, 65, 200, 45 and 30 from Muhammad Hanif, Muhammad Khan, Shara, Muhammad Ismail, Niaz, Maqbool and Abdul Rahim P.Ws. 1 to 7 and Rs.60, 30 and 30 from Mehboob Alam Faiz Muhammad Shafi and Muhammad Aslam at different times. The relevant provisions of law relatable to the mode of trial may be reproduced advantageously.

Section 233, Cr.P.C.‑‑ Separate charges for Distinct Offences.‑ "For every distinct offence of which any person is accused there shall be separate charge, and every such charge shall be separately except in the cases mentioned in sections 234, 235, 236 and 239.

Section 234.‑‑ Three offences of same kind within one year may be charged together.‑‑(1) When a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with, and tried at one trial for, any number of them not exceeding three.

(2) Offences are of the same kind when they are punishable with the same amount of punishment under the same section of the Pakistan Penal Code or of any special or local law:

Provided that, for the purpose of this section, and offence punishable under section 379 of the Pakistan Penal Code shall be deemed to be an offence of the same kind as an offence punishable under section 380 of the said code, and that an offence punishable under any section of the Pakistan Penal Code, or of any special or local law, shall be deemed to be an offence of the same kind as an attempt to commit such offence, when such an attempt is an offence.

Section 235.‑‑ Trial for more than one offence.‑‑ (1) If, in one series of acts, so connected together as to from the same trans action, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence.

(2) Offence falling within two definitions.‑‑ (2) If the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished the person accused of them may be charged with, and tried at one trial for, each of such offences.

Acts constituting one offence but constituting when combined a different offence.‑‑(3) If several acts, of which one or more than one would by itself or themselves constitute an offence, constitute when combined a different offence, the person accused of them may be charged with, and tried at one trial for, the offence constituted by such acts when combined, and for any offence constituted by anyone, or more, of such acts.

(4) Nothing contained in this section shall effect the Pakistan Penal Code, section 71.

Section 236.‑‑ Where it is doubtful what offence has been committed.‑‑ If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences.

Section 239.‑‑ What person may be charged jointly.‑‑The following persons may be charged and tried together, namely:‑

(a) person accused of the same offence committed in the course of the same transaction;

(b) Persons accused of an offence and persons accused of abetment, or of an attempt to commit such offence;

(c) Persons accused of more than one offence of the same kind, within the meaning of section 234 committed by them jointly within the period of twelve months;

(d) Persons accused of different offences committed in the course of the same transaction;

(e) Person accused of an offence which includes theft, extortion, or criminal misappropriation, and persons accused of, receiving or retaining or assisting in the disposal or concealment of, property possession of which is alleged to have been transferred by any such offence committed by the first named persons, or of abatement of or attempting to commit any such last named offence;

(f) Persons accused of offences under sections 411 and 414 of the Pakistan Penal Code or either of those sections in respect of stolen property the possession of which has been transferred by one offence; and

(g) Persons accused of any offence under Chapter XII of the Pakistan Penal Code relating to counterfeit coin, and persons accused of any other offence under the said Chapter relating to the same coin, or abetment of or attempting to commit any such offence;

and the provisions contained in the former part of ;his Chapter shall, so far as may be, apply to all such charges."

4. From the provisions of law quoted above, it is very much clear that the law favours separate charge for every distinct offence and every charge has to be tried separately except in the cases coming within the ambit of sections 234/235, 236 and 239, Cr.P.C. The law absolutely prohibits a joint trial unless the case falls within the exceptions to section 233, Cr.P.C. One trial of the appellant for all distinct offences is thus entirely illegal. In this view of the matter, there is no option but to set aside the entire proceedings including the order of conviction and to remand the case back to the trial Court for proceeding according to law. The record shall be immediately sent back to the trial Court for fresh proceedings to law. It would be open to the police to submit separate challans against the appellant.

S. A. Conviction set aside.

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