Lawyers Directory Listing
Chat with us free on WhatsApp — tell us your city and legal matter and our team connects you with the right lawyer. No form, no fee.
Criminal Appeal No. 334 of 1959, decided on 30th November 1959.
Criminal Procedure Code (V of 1898), S. 239‑"Same transac tion"‑What constitutes‑Two accused found in possession of forged currency notes on separate occasions‑Neither charge, nor evidence nor examination of accused disclosed any close relation between the two‑Joint trial, held, illegal‑Retrial ordered.
Community of purpose or design and continuity of action are sine qua non, if the separate acts are to be linked together so as to constitute one transaction under section 239 of the Criminal Procedure Code, 1898. Where, the two accused were found in possession of forged notes on separate occasions but neither the charge nor the evidence nor the examination of the accused disclosed any close relationship between the two, it was held that the two accused committed the offence under section 489‑C Penal Code independently and, in the circumstance, their joint trial was illegal. Re‑trial was, therefore, ordered in the case. [pp. 114, 115, 116] A, B, C, D & E
Md. Mosaddar Hoque's case P L D 1958 S C (Pak.) 131 rel.
S. A. Ashfaq for Appellant.
Khalid Ishaque, A. A. G. for Respondent.
Dates of hearing : 5th and 23rd November 1959.
This is an appeal by Mohammad Murtaza son of Hussain Bhai against the judgment of the Ist Additional Sessions Judge, Karachi, convicting him and Muhammad Siddiq for an offence under section 489‑C, P. P. C., and sentencing each to four years' R. I.
The prosecution story as related in the F. I. R. made by Mr. G. H. Butt, D. S. P., C. I. D., Karachi on 20 6‑58 at 15 hours against Muhammad Siddiq under section 154, Cr. P. C. was that on 19‑6‑58 in the evening information was conveyed to him that Mohammad Siddiq alias Buddho was a member of a gang who circulated forged currency notes and used to sell forged Indian currency notes of Rs. 100 to the poor innocent and needy refugees @ Rs. 50 per note. After receiving this information, the S. P. (Crime) C. I. D., D. S. P., C. I. A., along with Abdul Wahid Khan Inspector of Crime with a Police party as also Mashirs Abdullah Khan and Niamat Shah reached the first Bus stop of Shahid‑e‑Millat Road where Mohammad Siddiq was sitting at the said Bus stop and six forged Indian currency notes, each of Rs. 100 were recovered in an envelope from beneath his feet. He was arrested on the ‑spot. Investigation was started by the Police on the same day. Mohammad Siddiq led the police party to the house of Murtaza in the Thattahi‑Compound. They found Murtaza present in his house. Murtaza opened a suit‑case from which he took out four Indian currency notes enclosed in an envelope. Another similar forged note was found from Murtaza's coat which was hanging by a peg in the second room. All these notes were sent to the State Bank of Pakistan for opinion about the genuineness of the notes. The Bank opined (Ex. 19) that the notes were forged. Both the accused Mohammad Siddiq and Murtaza were tried together. Mohammad Siddiq has not appealed. This judgment therefore deals with the case of Murtaza only.
On behalf of the prosecution, the D. S. P. Mr. Butt, Abdul Rauf P. W. 2, Omer, P. W. 4, and Abdul Waheed P. W. 7 were examined in evidence on the facts.
P. W. 2 Abdul Rauf said that Siddiq was a rickshaw puller. P. W. 2‑Abdul Rauf was the person to whom Siddiq offered to sell hundred‑rupee. notes. He deposed that Siddiq took him to his Saith who is the second accused in the case. The witness told Murtaza that he would talk the matter to some one and let him know the next day. Accused Siddiq had offered to give him a commission of Rs. 10 per note after the witness could sell his notes to Bohries.
It appears that in the Magistrate's Court he did not say that the accused Mohammad Siddiq took him to the house of Murtaza accused. This statement therefore is an improvement on his first statement. Omer P. W. deposed that Murtaza appellant opened the lock of a suit case and took out an envelope con taining four notes of hundred‑rupee in Indian currency and then a hundred‑rupee note was secured from the pocket of his coat which was hanging on a peg. He signed the recovery list Ex. 15. This witness is a hotel keeper in Gandhi Garden. He further said that the Inspector searched the pocket of the accused and secured the note from his pocket. He said that he had searched the person of the Inspector. In his statement before the Magistrate the witness said that he did not know the accused before nor did he know Murtaza's house before this. Abdul Waheed P. I. said that the accused Siddiq led him to the house of Murtaza on the same day from where the accused opened his suit‑case and took out four notes of hundred‑rupee in Indian currency. This witness said that he himself secured one hundred‑rupee note from the pocket of a coat which was hanging on a peg. He said that Murtaza was the only occupant of the flat. A brother of Murtaza was also living there. The brother was not available at the time of the search. .
Murtaza accused denied the charge in the Court of the
Sessions Judge. He said that he was innocent and that the suit
case did not belong to him. He said that the suit‑case was not
opened in his presence nor was anything recovered from it. He
produced Noor Ahmed his elder brother to show that the house
stood in his name and he was paying rent. Noor Ahmad said
that the article C (Box) did not belong to him nor did it belong
to Murtaza. Sheikh Manzoor Ahmed, the other witness. deposed
that the wife of Noor Ahmad came to his house when 'the Police
had entered her house. There was no male member and the
police had sent her out. He could not see as to what had happened.
He had requested the‑police to allow him to get in as an observer
but the police refused to accept him as a witness. ‑
On behalf of the prosecution, it was urged before the learnea Sessions Judge that Murtaza had opened the suit‑case and had produced the currency notes and therefore a case was made out against him.
On behalf of the accused, it was said that there were two offences at two different places. The joint trial was illegal. There was no continuity of action and, therefore, presumption under section 114 did not arise. The Mashirs were not of the locality and could not be relied upon.
One Assessor found the accused not guilty and the other Assessor found him guilty.
The learned Sessions Judge who tried th came to the conclusion that the notes were forged and that Murtaza and Siddiq were more or less acting together. Murtaza had posed himself as a Saith and Siddiq was his agent that is the reason why Siddiq was able to led the police party to the house of Murtaza.
The learned Judge was of the opinion that the accused acted in collaboration with a common intention of racketeering in forged notes and therefore joint trial was justified. .
In appeal the following arguments were advanced :‑
(i) The evidence of recovery of forged notes was extremely doubtful. Appellant Murtaza was not mentioned in the F. 1. R. If Siddiq had any connection with him and the recovery of the forged notes had been made, this should have been mentioned in the F. I. R.
(ii) The recovery was of the notes and it was denied.
(iii) The joint trial was illegal and it was contrary to the provisions of section 239, Cr. P. C.
It was argued that the transaction was not the same. The charge was of possession of forged notes and it was not of acting in concert. There was no connection between Murtaza and Siddiq at all. There was no statement on the record to show their connections. It was said that he was not named by witnesses in the Magistrate's Court as acting with Siddiq accused and reference was made about him for the first time in the Court of Sessions. No question regarding conspiracy or common intention or action of Siddiq under section 239 was asked by the Court below. Siddiq might have led the police party to the house of the appellant on receipt of some information and this should not be considered sufficient to support his joint trial or even conviction. It was argued that the case could not stand on merits at all against the appellant Murtaza. The evidence against him was only of recovery of notes. Unless there was evidence to show that he was trafficking in coins, the appellant could not be convicted under section 489‑C, P. P. C.
The learned counsel (Addl. Advocate‑General) representing the State argued that both Siddiq and Murtaza were part of a gang referred to in the F. I. R. Siddiq was a rickshaw puller and had no means even to defend himself. He could not engage any lawyer and did not even appeal from Jail. He could not traffic in the notes by himself. It was according to him quite clear from the evidence that Murtaza appellant was acting with him. This is why Siddiq led the police party to the house of Murtaza. Murtaza's knowledge therefore of the currency notes must be inferred from the circumstances the recovery was made. Further, the recovery was proved by the evidence of Abdul Rauf, Waheed and Omer who had no enmity against the accused. They said that the appellant Murtaza himself opened the suit‑case and brought out the notes.
According to the learned Additional Advocate General, there was no need for a separate conspiracy charge for purposes of section 239. Reference in the F. 1. R. was enough and the evidence stowed that the accused Siddiq took the police party to the house of Murtaza.
The learned counsel for the appellant argued that the ruling of their Lordships of the Supreme Court in Md. Mosaddar Hoque's case reported in (1) was on all fours with this case and joint trial of Murtaza and Siddiq must be held to be illegal. The facts in Md. Mosaddar Hoque's case are that Md. Mosaddar Hoque was the Sub‑Registrar in the Registration Department at Gaibandha when Juhuruddin Bepari presented a Kabuliyat for registration to him. Mosaddar Hoque asked for Rs. 15 as an illegal gratification. Juhuruddin Bepari declined to give the bribe thereupon Md. Mosaddar Hoque threw away the document upon which the matter was reported to the higher authorities and a trap was laid. Juhurdding Bepari got his notes initialled by the Magistrate and went to Mosaddar Hoque who received Rs. 15 from him and asked him to pay Rs. 6 to his Moharrir as registration fee. The Moharrir wanted one more rupee and it was paid to him. As soon as the payment was made, the police officers and the Magistrate entered the office of the Sub‑Registrar and recovered Rs. 15 in marked notes from Sub‑Registrar and Rs. 7 from the Moharrir.
It was argued before their Lordships that there was a separate transaction and the appellants should have been tried separately.
Their Lordships held that 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.
The above observations of their Lordships of the Supreme Court would apply in this case as there is nothing to show that the act alleged against appellant Murtaza had any connection with the other accused Siddiq. Both committed the offence independently and there is no satisfactory evidence to connect one1A with the other.
It was argued that, in this case, Murtaza came at a later stage and had nothing to do with the finding of the notes with Siddiq and similarly Siddiq had nothing to do with the finding of the notes with Murtaza. Even if the prosecution case is accepted as it is, Siddiq took the Police Party to the house of Murtaza and nothing beyond that was proved.
The learned Sessions Judge has dismissed this plea of joinder of trial as in his opinion the accused were acting in concert.
The questions that were put to the accused Siddiq and Murtaza show that the prosecution were not sure about their acting in concert. Siddiq was definitely asked if he led the police party to the house of Murtaza but he denied this fact. Murtaza, however, was not asked any question about Siddiq. It is, there fore, apparent that the fact of their acting together or that offences being part of the same transaction was not put to either of the accused by the Court concerned. Reference to Murtaza in the examination of Siddiq does not mean that he had been told that the charge against him was that he was acting in concert with Murtaza. He was merely asked whether he took the police party to the house of Murtaza which tie has denied.
(1) P L D 1958 S C (Pak.) 131
The F. 1. ft. no doubt makes a reference to a gang who circulated forged currency notes but it has no reference to Murtaza. It is somewhat. curious that the report was made by Mr. Butt on the 20th June, 1958, at 15 hours and it does not mention the name of Murtaza. The U. S. P. further admitted that Abdul Rauf informed him that Murtaza and Niddiq were trafficking in Indian currency forged notes. There is no reference to Siddiq acting in concert with Murtaza. Abdul Rauf who is the person relied on by the learned Sessions Judge did not say in the Magistrate's Court that Siddiq had taken the police to another accused namely Murtaza. Neither the charge nor the evidence nor the examination of the accused discloses any close
relationship between Siddiq and Murtaza. t‑‑Even if the evidencel of Abdul Rauf is believed that Siddiq led the police party to the house of Murtaza from where the forged notes were recovered, the most that can be said is that Siddiq probably was informed by some one that Murtaza was in possession of forged currency notes. Neither the accusation nor does the evidence, in this case establish "that community of purpose of design and continuity of action are sine qua non, if the separate acts are tI0 be linked together, so as to constitute one transaction." 1
cannot be said of either recovery that "it was a cause or effect of or the occasion for the other." On the other hand, "as Their Lordships of the Supreme Court observed, "each was a transaction by itself". There was no common object in the sense that one helped the other in trafficking in currency notes. Both were found in possession of forged notes on separate occasions. The accusation read to the two accused does not show that the prosecution ever suggested at the beginning of the trial that the two accused were acting in concert. The case of the appellant is obviously prejudiced as no question was put to him whether he was acting in concert with Siddiq. The F. 1. R. does not refer to Murtaza at all.
Under Section 239, Cr. P. C. the relevant provisions regarding persons, who can be tried jointly are contained in Clauses (a), (c) and (d)
"(a) persons accused of the same offence committed in the course of the same transaction ;
(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 ;
Clause (a) does not apply as Siddiq and Murtaza did not commit the same offence in the course of the same transaction. There. is no evidence that there was one transaction only. Clause (c) I also does not apply because both of them did not commit the
offences jointly. Clause (d) obviously is not applicable.
There is no common purpose although it may be the same in the minds of both the accused persons. There is no evidence
to show that Siddiq brought these notes from Murtaza or that he was acting as an agent of Murtaza appellant.
The objection against the joint trial was taken in the Court blow before the decision was arrived at. The appellant, therefore,
had a right to argue the question of joint trial in this Court. I accordingly accept the contention that the trial of this case has been vitiated.
The learned Additional Advocate General pressed that in the event of my accepting this plea, a re‑trial may be ordered in this case. I agree. The order passed by the learned Sessions Judge is accordingly set aside and, in the circumstances of the case, re‑trial is ordered.
x. B. A. Re‑trial ordered.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer