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Criminal Appeal No. 114 of 1961, decided on 19th December 4961.

S. 5 (7)‑Joint trial permissible only in accordance with provisions of Criminal Procedure Code (V of 1898).

Ss. 234, 235, 236‑ Joint trial of several charges of misappropriation and corresponding charges of falsification of accounts for more than three offences illegal‑Penal Code (XLV of 1860), Ss. 409 and 477‑A.

Syed Azizul Haq for Appellant.

M. A. Rab for the State.

This appeal is against the conviction and sentence of the appellant under sections 409 and 477‑A of the Pakistan Penal Code by the whole‑time Special Judge, Dacca Division, Dacca in Special Pass No, 12 of 1960.

The case for the prosecution is that the appellant Abdul Latif Bhuiya was the seasonal Assistant Tahsildar of Murapara Government Acquired Estate in 1957‑58. The duty of the appel lant was to realise rent from the tenants by granting rent receipts and to enter such collections in the daily Collection Register maintained for the purpose. The appellant is alleged to have dishonestly misappropriated a total sum of Rs.40‑4‑8 out of Rs. 83‑1‑0. This is said to have been committed within the period from 28‑10‑57 to 13‑6‑58. He collected Rs. 11‑13‑8, Rs. 7‑4‑6, Rs. 10‑8‑8, Rs. 3‑4‑6, Rs. 4‑1‑4, Rs. 5‑0‑4, Rs. 4‑4‑6, Rs. 11‑1‑6, Rs. 8‑5‑8, Rs. 2‑13‑2, Rs. 1‑14‑8, Rs. 2‑11‑2, Rs. 4‑14‑2 and 4‑13‑2, from the tenants by granting rent receipts Nos. 993760, 993761, 784756/784763, 784764, 784765, 784766, 784751, 784970, 784971, 784972, 784973, 7E4974 and 784975 but he with dishonest motive intentionally entered Rs. 6‑6‑10, Rs. 4‑0‑2, Rs. 5‑6‑10, Rs. 1‑11 0 Rs. 2‑1‑8, Rs. 2‑8‑11, Rs. 2‑3‑3, Rs. 5‑9‑3, Rs. 4‑2‑10, Rs. 1‑6‑10, Rs. 0‑15‑4, Rs. 1‑5‑3, Rs. 2‑6‑10 and Rs. 2‑6‑4 in the correspond ing carbon copies of the rent receipts and thus misappropriated of the total sum of Rs. 40‑4‑8 as already indicated. On these allega tions the appellant was charged, under sections 409 and 477‑A Penal Code. The accusation against the appellant as set out in his examination under section 242 of the Code of Criminal Procedure is as follows

"That you Abdul Latif Bhuiya between the period from 2 ‑1‑5" to 13‑6‑58 at P. S. Rupganj, District Dacca, being a seasonal Assistant Tehsildar attached to Murapara Government Acquited Tahsil Kachari of the Government of East Pakistan and in such capacity entrusted with Rs. 83‑1‑0 committed criminal breach of trust in respect of Rs. 40‑5‑11 pies out of the said amount and thereby committed an offence punishable under section 409 P. P. C. . . . . . ."

He was further examined as follows:‑

"That you Abdul Latif Bhuiya on or about the 13th day of June 1958 at P. S. Rupganj, District Dacca, being seasonal Assistant Tahsildar attached to Murapara Government Acquir ed Estate Tahsil Kachari of the Government of East Pakistan, collected, Rs. 8‑5‑8 pies, Rs. 2‑12‑2 pies and Rs. 1‑14‑8 pies from Mati Lal Pal after issuing him rent receipts viz., R. R. Nos. 784970, 784971 and 784972 respectively, willfully and with intent to defraud, fabricated and falsified the entries of such collections in the carbon copies of such rent receipts by showing Rs. 4‑2‑10 pies in R. R. No. 78970, Rs. 1‑6‑10 pies in R. R. No. 784971 and annas 15/4 pies in R. R. No. 784972 and the daily Collection Registrar and the Cash Book of the Murapara Government Acquired Estate Kachari for the year 1958 which belong to the Government of East Pakistan, your employer, and thereby committed an offence punishable under section 477‑A, P. P. C. . . . . . .

3. The defence case is that the appellant is innocent and that he has not committed any of the offences with which he has been charged and the rent receipts alleged to have been written by him are not in his hand‑writing Mr. Syed Azizul Huq, learned Advocate for the appellant has submitted that the trial is vitiated because of mis-joinder of charges. He has also strenously argued that there is no reliable evidence in the case to warrant a conviction and he has made a serious grievance for non‑examination of certain material witnesses in the case.

4. His first point goes to the very root of the trial and has therefore, to be considered at the outset. His contention is that the offence under section 409 of the Pakistan Penal Code cannot be tried together with more than three offences alleged to have been committed under section 477‑A of the Penal Code, inasmuch as, the two offences are not of the same kind. He, therefore, relies on the provisions of sections 234, 235 and 236 of the Criminal Procedure Code.

5. Mr. M. A. Rab appearing for the State, has pointed out that this was a trial held under the Criminal Law Amendment Act and as such this provision of the Criminal Procedure Code does not apply in this case. He drew my attention to the provision of subsection (7) of section 5 of the Pakistan Criminal Law Amend ment Act, 1958 which is as follows :‑

"When trying an offence under this Act a Special Judge may also charge with and try other offences not so triable with which the accused may, under the provisions of the Code of Criminal Procedure, 1898, relating the joinder of charges, be charged at the same trial."

On a careful reading of this subsection it appears to me that it says contrary to what is argued by the learned Advocate for the State. It says that in a trial held under the Pakistan Criminal Law Amendment Act for the offences committed under certain sections of Penal Code set out in the Schedule of that Act, another offence committed under a different section of the Code no A mentioned in the said Schedule, can be tried together provided the said two offences are triable jointly in accordance with the provisions of joinder of charges as laid down in the Code of Criminal Procedure. The provisions of section 5 (7) of the Criminal Law Amendment Act which permits a joint trial in the circum stances as above, have been expressly subjected to the provisions of joinder of charges in the Criminal Procedure Code. The intention of the legislature is not to override the provisions of the Criminal Procedure Code. In this case, an offence under section 409 and an offence under section 477‑A of the Pakistan Penal Code cannot be tried jointly, because the provisions of the Criminal Procedure Code do not permit such a joint trial. The learned Advocate for the State conceded that if the exemption as claimed by him under subsection (7) of section 5 cannot be enter tained, then in view of the clear provisions of the Criminal Pro cedure Code, the trial is vitiated on the ground of misjoinder of charges. With regard to the claim made by him regarding sub section (7) of section 5, when it was pointed out to him that on a careful reading of the section it is contrary to what was urged by him, he also submitted that on a second thought he agreed with the interpretation as indicated above and I appreciate his frankness in presenting the case on behalf of the State.

6. The contention of Mr. Azizul Huq, learned Advocate for the appellant, finds ample support in the decisions of this Court in the cases of Sailendra Prasad Bose v. The Crown (P L D 1963 Dacca 34) and Abdul Awal v. The State (P L D 1962 Dacca 623) and the law is now well‑settled. Joinder of several charges of misappropriation and corresponding charges of falsi fication of accounts for more than 3 offences in the same trial is illegal.

7. Mr. Rab has, therefore, rightly conceded that the trial is vitiated because of the misjoinder of charges.

8. The trial not having been done in accordance with law the case has to go back for a fresh trial and in that view of the matter, I do not want to express any opinion on the submissions made by the learned Advocate for the appellant with regard to the evidence led in the case.

9. In the result, the appeal is allowed, the conviction and sentence are set aside and the case is remanded for re‑trial in accordance with law.

A. H.

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