P L D 1967 Lahore 1077 (PLP)

7. The offence as disclosed according to the prosecution evidence about the criminal breach of trust are supposed to have been committed by the appellant when he did not carry forward the balance of Rs. 13,000.00 in the cash book of the deceased Sher Muhammad on the 1st of August 1960 while the offence under section 381, P. P. C. for the theft of Rs. 30,000.00 from the iron safe of Sher Muhammad deceased has been committed some time between 7th of February 1962 when Sher Muhammad died and 5th of March 1962 when on his return from England on the 28th of February 1962 Hafiz Muhammad Abdullah complainant found that Rs. 30,000.00 were missing from the iron safe of his father. In these circumstances both these offences were committed at different times on different occasions and the offence of theft was committed more than one and a half years after the alleged commission of the offence of criminal breach of trust and could not be said to have been committed during the course of the same transaction. 7‑A. When questioned about the legality of the trial under two charges, i.e. 381 and 408, P. P. C. at one and the same time the learned Assistant Advocate‑General rightly conceded that the appellant could not be tried jointly for both these offences at one trial as both the offences were of different nature and a joint trial for both the offences under section 234(2), Cr. P. C. coda not be held. However, the learned Assistant Advocate‑General urged that it was a mere irregularity in the mode of the trial and vas curable under section 537 of the Code of Criminal Procedure. It was further submitted that no failure of justice has occurred in this case and the appellant who was represented by a counsel, had taken no objection to this irregular mode of his trial and, there fore, the objection should not be allowed at this stage. In support of his argument about the absence of the objection on the part of the appellant before the trial Court reliance was played on Emperor v. Harjivan Valji (A I R 1926 Bom. 231). In this case the accused was tried by a Bench of Magistrates for three offences committed by him under section 77 (clause 2) of the Bombay District Municipal Act of 1901 on three different occasions it was held that although the offences were committed on different times it was irregular on the part of the Magistrate to consolidate more than one complaints but the irregularity was one which is curable under section 537 of the Criminal Procedure Code. This case has, therefore, no application to the facts of the present case.

8. The other cases cited in support of his contention by the A. A. G. are (1) In Muhammad Qasim Khan v. Emperor (A I R 1934 Lah. 827) the appellant, Muhammad Qasim Khan, was convicted for an offence of embazzlement of certain amount while in service in British Legation at Kabul. Since the charge related to an offence committed by him at a place beyond the limits of British India he could be dealt with under section 188, Cr. P. C. if the Political Agent certified that the charge ought to be enquired into in British India, Muhammad Qasim Khan was arrested on the 27th of March 1933 in the Attock district and brought before the Additional District Magistrate on the 28th of March 1933 and on the 26th of April 1933 when the evidence was being recorded in the presence of the accused a certificate containing the required declaration was produced in Court which was signed on the 13th of April 1933 by the Minister at Kabul. This certificate was held to be invalid by the Magistrate as the Minister was not considered a Political Agent within the definition of General Clauses Act 10 of 1897, however, the sanction of the local Government was duly received by the Magistrate as required by section 188, Cr. P. C., on the 15th of May 1933. No objection about the absence of this certificate was taken on behalf of Muhammad Qasim Khan between 27th of March 1933 up to 15th of May 1933 and this objection was raised for the first time in appeal and it was held by the High Court that it was defect curable under section 537, Cr. P. C. and having regard to the omission to raise any objection to its absence before the 15th of May 1933 no failure of justice was occasioned by the absence of this certificate between the above‑mentioned dates. But this case is quite distinguishable. In the first instance a certificate for the prosecution of Muhammad Qasim Khan was issued by the Minister of Kabul which was presented in Court on the 13th of April 1933. The learned Magistrate disregarded that certificate as the Minister in Kabul was not a Political Agent within the meaning of section 188 of the Code of Criminal Procedure. Further the presentation of a sanction under section 188 by a competent authority was only a procedural formality and the learned Judge who decided Muhammad Qasim Khan's appeal was right to conclude that no failure of justice was occasioned in that case. The authority is quite distinguishable from the facts of the present case in which two offences of different nature committed by the appellant after one another after more than 11/2 years have been heard and disposed of together at one trial although the offences were of different nature and they were not committed ire the course of one transaction.

9. Munshi Lal v. Emperor (A I R 1948 All. 278). It was a case under Hoarding and Profiteering Prevention Ordinance (XXXV of 1943) and according to the procedure laid down under the Ordinance itself it was to be tried summarily but the Magistrate proceeded to try nit the case as a warrant case. During the course of evidence the prosecuting inspector applied to the Court for adopting a summary procedure but the accused opposed the application on the ground that it would be unnecessary harassment for him to have the case tried de novo according to the summary procedure. The objection of the petitioner succeeded and the Court proceeded with the case as an ordinary warrant case and held that the procedure would neither prejudice the accused nor the prosecution. Taking into consideration that the procedure was adopted with the consent of the accused it was held by the learned Judges that at first it was a case of irregularity which was curable by the provisions of section 537, Cr. P. C. as they stood at the relevant time in India. To the similar effect is Ahmad Husain v. State (A I R 1958 All. 443) and Willie William Slaney v. State of Madhya Pradesh (A I R 1956 S C 116).

10. The last case cited by the learned counsel for the State was Amir Bakhsh v. State (P L D 1960 Lah. 15). In this case "A" was challaned and tried by the Sessions Judge on a charge under section 302, P. P. C. for committing murder of two persons by running them over by his truck while they were sleeping on their charpais on the pavement of the road in Multan. "A" was convicted under section 304, Part II and sentenced to seven years' rigorous imprisonment. On appeal a learned Single Judge of this Court held that the charge against the accused under section 302, P. P. C. was that be had committed the murder of two persons by running them over by his truck while they were sleeping on their charpais on the pave ment of the road and on these facts there was an element of doubt as to whether "A" has committed an offence under section 302, 304 or 304‑A, P. P. C. In view of the Provisions of section 239, Cr. P. C. "A" would have been charged with having committed all or any of such offences or he should have been committed with any one or some of the charges. Consequently the conviction. of "A" was altered from 304 Part (II) to 304(A), P. P. C. although he was not specifically charged with that offence. In this case it was found that the accused knew very well at his trial what evidence he had to lead and, therefore, the question of prejudice was not accepted.

11. To the case of the present appellant none of the authorities cited above will be attracted. So far as the case decided by the Allahabad High Court is concerned it related to a period when section 537 Cr. P. C. had been amended in India in the year 1955 but in the present case the appellant was challaned, tried and convicted at a time when a similar amend ment in Pakistan was not introduced. I am not prepared to follow A I R 1956 S C 116 for the reason that the Supreme Court of Pakistan had decided quite differently on he subject and I am bound by it. In Mosaddar Hoque v. State { P L D 1958 S C 1 3 1) in a case under section 161, P: P. C. read with section 5(2) of the Prevention of Corruption Act, 1947, the accusation put to one accused who was Sub‑Registrar was that he received in his official capacity an illegal gratification of Rs. 15 for registering a deed presented to him. There was no reference in the charge to what the second appellant, the Muharrir, was alleged to have done. Similarly in the allegation to the second appellant that he in his official capacity received an illegal gratification of Re. 1 for issuing a receipt in connection with the registration of a deed there was nothing to show that the act alleged against the second appellant had any connection with what was alleged against the first appellant. Their Lordships of the Supreme Court observed that:‑ "There was nothing to link the acts alleged against the appellants into the "same transaction". It cannot be said of either act that it was a cause or effect of or the occasion for the other. On the other hand, each was a transaction by itself. 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. In the circumstances the joint trial of the appellants was illegal. No question as to whether prejudice was caused or not need be considered as illegality had resulted from adopting a mode of trial prohibited by the Code and it cannot therefore be cured under section 537, Criminal P. C." With reference to section 233 of the Cr. P. C. in this case their Lordships proceeded to observe as follows:‑ "Section 233 lays down the primary rule that there should be a separate charge and a separate trial for every distinct offence and it is obvious that the principle of this rule is that embarrassment to the accused and confusion to the jury should not be caused by a number of charges based on disconnected allegations being tried together. Section 233 itself indicates the exceptions to the general rule but it is clear from their language that their object is only to avoid duplication of proceedings. They should therefore be construed with strictness and not to defeat the right of separate trial conferred under the section." In G. H. Astell v. T. Eng Take (A I R 1941 Rang. 337) it was held that where an accused was alleged to have committed an offence over a period of two years the trial was plainly prohibited by the Code of Criminal Procedure and illegal and that the conviction must be set aside. It has usually been held on the authority of this case that where there has been misjoinder of charges of this kind the whole trial is vitiated and the conviction must be set aside quite apart from any question of prejudice to the accused. In the present case the allegation against the appellant is that he misappropriated a sum of Rs. 13,000.00 because he did not carry, it forward on the 1st of August 1960. This was an allegation of criminal breach of trust against the appellant. While on the complainant's return from England after the death of his father Sher Muhammad he found that the appellant had refused to deliver the key of the iron safe to the complainant and when with great struggle the complainant was able to take it back from the appellant he found that Rs. 30,000.00 were missing. This is a case of committing theft within the meaning of section 381, P. P. C. It seems to me to be clear that there was no dishonest intention on the part of the accused at the time when he committed his first offence under section 408, P. P. C. by misappropriating the alleged amount of Rs. 13,000.00 so as to connect it with the subsequent offence of theft committed by the appellant after the death of Sher Muhammad. In my opinion section 537, Cr. P. C. deals with mere errors and irregularities in the charge and not with illegalities such as trial of an accused person for more than one offences of different nature at one trial which is not allowed by law. Section 537, Cr. P. C. affords no real ground to assume that when a mandatory pro vision of the Code is violated in framing the charge and a different mode of trial is adopted then such an irregularity is always curable.

12. Learned counsel for the State tried to distinguish the case of Mosaddar Hoque v. State on the ground that it may not be considered to be a good law in view of the latest amendment of the Code of Criminal Procedure West Pakistan Amendment Act No. XVII of 1964. According to this amendment clause (b) has been inserted after clause (a) under section 537, Cr. P. C. as follows: "(b) of any error, omission or irregularity in the charge or mode of trial, including any misjoinder of charges,". and relied on Nura v. State (P L D 1966 Lah. 383) where "N" was tried for the murder of one and murderous assault on the other occurring different places and at different times it was held by their Lord ships of the Division Bench that the offence cannot be held to have been committed in the course of same transaction but in the absence of prejudice to the accused it was considered to be a mere irregularity curable under section

537. In this case the trial was concluded on the 13th of May 1964 when the above amendment of section 537 had already been enacted and the learned Judges held at page 388 that: "The amendment in section 537, Criminal Procedure Code makes the misjoinder of charges as an irregularity in the proceedings curable under section 537 of the Code of Criminal Procedure provided it has not occasioned a failure of justice." The above amendment has no retrospective effect and sitting single I should have followed the above authority of the Division Bench of this Court but the case of the appellant was concluded at a time when un-amended section 537 of the Criminal Procedure Code was in force and, therefore, the present appeal has to be determined and decided in accordance with the provisions of the law applic able at the time when the trial was concluded and the conviction was recorded. At that time the un-amended section 537 could not cure the illegality which was committed by the misjoinder of charges and the case of Mosaddar Hoque decided by the Supreme Court will be applicable to the present case. The appellant has a right to get his appeal decided according to the law applicable prevailing on the date of decision of the case. Ghazi v. State (P L D 1962 Lah. 662) Section 233 of the Code of Criminal Procedure deals with the joinder of charges whether in respect of same person or whether there were different persons in respect of different charges. It is immaterial whether the misjoinder is with respect to different offences committed by the same person or in respect of same offence committed by different persons. The words under amended section 537, Cr. P. C. related to the misjoinder of charges and these words clearly include misjoinder of offences or of accused persons. Under section 537, Cr. P. C. only an irregularity in charge is cured and that too in a case where it has not occasioned a failure of justice. The present case is not, however, of irregularity in the framing of a charge but goes further and covers an irregularity in a trial which is prohibited by law. This disregard of the provisions of the Code of Criminal Procedure cannot be considered a mere irregularity and this contravention cannot be said to fall within the description of error, omission or irregularity. The mode of trial adopted in this case is not warranted by any enactments or rules and as such the trial is much more than an irregularity.

13. As a result of the above discussion I will accept this appeal, remand the case to the trial Magistrate under section 423 of the Code of Criminal Procedure with the direction that he will try both the cases under section 408, P. P. C. and 381, P: P. C. separately in accordance with the provisions of section 233 of the Code of Criminal Procedure. K. B. A. Appeal accepted. Case remanded.