2018 PLP 207 (YLRN)

FAHIM AHMED SIDDIQUI, J.

Through captioned criminal revision application, the applicant has impugned the order dated 19.12.2016, passed by the learned Special Judge, Anti-corruption (Provincial), Larkana, in Special Case No. 17/2015 (Re: State v. Shabir Ahmed Pahyar and others) whereby he has dismissed an application under Section 537 of the Code of Criminal Procedure (hereinafter 'Cr.P.C.') for joinder of charge against the applicants.

2. Concisely, the facts of the case are that ACE, Larkana registered a case against the applicants after approval of competent authority with allegations against the main accused Shabir Ahmed Pahyar (the XEN Provincial Buildings, Larkana) and others including contractors and subordinate staff for causing loss to the government by preparing bogus records of MBs. In this way, they have caused losses in the seven schemes as under: i) The bogus payment of Rs.2,69,711/- for the construction of judge residence/ Bangalore is at Dokri. ii) The bogus payment of Rs. 2,03,925/- for construction of residence of the District and Sessions Judge, Kamber. iii) The bogus payment of Rs. 19,30,044/- for construction of Arts Complex. iv) The bogus payment of Rs. 28,02,780/-for construction of Sports Complex/Pavilion at Ratodero. v) The bogus payment of Rs. 1,98,894/-for construction of ACE Police Station Building at Kamber. vi) The bogus payment of Rs. 6,57,671/-for construction of Arts Complex/Hostel Block, Larkana. vii) Bogus payment of Rs. 1,24,400/-for construction of Treasury Office at Kamber. As such, a case was registered against the accused persons and the ACE, Larkana submitted seven separate Final Reports against them. The applicants moved an application before the trial Court under section 537 of Cr.P.C. with a prayer that since FIR is same; therefore, instead of framing separate charges, a single charge is to be framed and applicants should be tried once. However, the learned trial judge did not agree and dismissed the said application.

3. As some legal issues are involved and the matter requires to be thrashed out properly; therefore, Mr. Safdar Ali Bhutto, advocate was appointed as amicus curiae.

4. Mr. lnayatullah G. Morio, the learned counsel for the applicants, submits that when there is one FIR, then the final report should also be one and if the agency has submitted separate charge-sheets, then it is obligatory for the trial Court to frame only one charge because transactions are of the same nature. He submits that the offence is within 12 months of time and in this respect law is very much clear that these charges should be joined for a single trial.

5. Mr. Safdar Ali Bhutto advocate submits that perhaps the trial Court misled because of the language of section 234, Cr.P.C., where only three offences can be joined. After reading different statutory provisions pertaining to charge, he submits that in fact charge is required to be framed as per the provision of Section 235, Cr.P.C. He points out that the alleged unlawful transactions are of the same nature and very much interconnected to each other and rest of the accused is also the same, and the legislature has provided a scheme for single trial of such cases.

6. Mr. Aijaz Mustafa Samitio, DDPP concedes with the submission of learned amicus curiae.

7. After hearing the arguments, I have scanned the available material in the light of the valued submissions made before me. The basic section is section 233, Cr.P.C, which contains a mandatory provision and lays down that every charge for a distinct offence should be tried separately, except in the cases mentioned in sections 234, 235, 236 and 239 of Cr.P.C. It is quite plain that the charges framed in this case do not conform to the requirements of section 233, Cr.P.C. Now, it should be seen whether they come within any of the exceptions provided in that section. Sections 236 and 239, Cr.P.C. are irrelevant for our present purpose, as the later deals with joint trial of more persons than one and the former deals with the cases where it is doubtful what offence can be said to have been committed on the facts placed before the Court. Therefore, all that to be seen is whether the present trial falls within the scope of either section 234 or section 235, Cr.P.C. or both.

8. The rule expressed in section 233 is a wholesome rule and the object of this section is to give a fair trial to the accused and not to bring about a situation which might cause the accused prejudice or embarrassment in defending himself in respect to the charge or charges brought against him. On the other hand, the exceptions in the same provision of law are also beneficial for the prosecution and accused both; and the Legislature recognizes that under certain circumstances, the accused could be tried in respect of more than one offence in the same trial. In this respect, the intention of the Legislature is not limited to facilitate the accused and save him to cause any embarrassment but it would avoid multiplicity of trial. The litmus test of joinder of charge is that the same can only be permitted if it falls in any of the sections mentioned in section 233, Cr.P.C., which provide a venue of departure from the general rule.

9. In testing the validity of the joinder of charges, what is relevant is the accusation made by the prosecution and not the ultimate finding of the Court. Therefore, it is to be seen whether under the accusation made by the prosecution it can be reasonably said that the series of acts alleged against the accused can be said to be so connected together as to form the same transaction. In order to justify a trial in which two or more charges are joined, it is necessary to strictly establish that the joinder is permissible under anyone or more of the sections mentioned in Section 233 of Cr.P.C. It is a well-known canon of construction that exception must be strictly construed, and unless the court is satisfied that the exception has been strictly complied with, the joinder of charges in a trial should be held contrary to law. In this respect, general rule of procedure is to be found in section 233, Cr.P.C., while the provisions contained in sections 234, 235, 236 and 239 of Cr.P.C. form exceptions to the general rule and the same should therefore be strictly construed.

10. Turning now to the three material sections concerning to the present case, which are sections 234, 235 and 236 of Cr.P.C. In the instant case, the prosecution has submitted seven charge-sheets out of one FIR and under section 234, Cr.P.C., only 3 offences of similar kind may be joined together in a single charge committed within a period of one year. Section 236, Cr.P.C. provides for a situation where a single act or a series of acts is of such a nature that it is doubtful which of several offences, the facts which when proved will constitute against the accused. Meaning thereby that the provisions of sections 234 and 236 of Cr.P.C. do not attract to the present case. However, section 235, Cr.P.C. is relevant to the case in hand; section 235 (1), Cr.P.C. says: "If in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence."

11. In order to come within the ambit of Section 235, Cr.P.C., the offences with which the accused is charged may be distinct but should have been committed in a way that it appears in the course of the same transaction. According to the language of this section, the series of acts alleged against him must be so connected together as to form the same transaction. It is more difficult to chalk out a rule of thumb to decide if certain acts are so connected to form a single transaction. It was held in the case of Raj Bahadur v. Emperor (1935 Cr.LJ 1496) that "it is not possible to enunciate any comprehensive formula of universal applicability' for ascertaining about a series of acts to form the same transaction.

12. However, circumstances of every individual case are important for determination of the question or the principal criteria for determining whether they form the same transaction or not. In this respect, proximity of time, unity or proximity of places, continuity of action, unity or contiguity of sufferers, purpose and design of the acts and the unanimity of beneficiaries are the important indicators for deciding that certain acts form the 'same transaction'. The honourable Supreme Court in a case reported as Muhammad Mosaddar Haque and another v. The State (PLD 1958 SC 131) observed as under: "In dealing with the question as to what constitutes "the same transaction" Courts, while indicating that the tests to be employed are proximity of time and place, community of purpose or design and, continuity of action, have also pointed out that the two latter are the essential elements which are necessary in order to link together different acts into the same transaction." The similar view is also taken in the case reported as Noor Khan v. The State (PLD 1958 Lahore 1052), wherein it is held as:- "It is however, now well-settled that the real and substantial test for determining whether several offences are so connected together as to form one transaction is whether the offences are so related to one another in point of purpose, or as cause and effect, or as principal and subsidiary acts, to constitute one continuous action. Therefore, the question whether distinct offences form part of the same transaction is one, the answer to which must depend on the facts of each particular case."

13. In the present case, the allegations against the accused persons are that they have gained certain undue advantages and caused loss to government in different schemes by making bogus entries in Measurement Books (MBs). These MBs and other documents are maintained in the office of the main accused and an interpolation, if any, must have been done by main accused or under his instructions by the other accused persons working under him. These transactions are so interconnected that they conjointly from the same transaction, with the same motive, mode and style of the alleged offence, and the beneficiary of the allegedly ill-gotten gains are almost the same to a little variation of contractors who are engaged in different schemes. Now, we have to see whether the accused nominated for the offences in different transactions can be joined together in one trial. For joinder of accused persons, the scheme of law is given under section 239, Cr.P.C., and clause (d) of the same says that the 'persons accused of different offences committed in the course of the same transaction' may be charged and tried together. Hence, in the instant case, it will be appropriate for the trial Court to frame one charge with all the necessary particulars as required under section 222, of Cr.P.C. by joining all the nominated accused persons so that there shall be only one trial. It will avoid the multiplicity of the trial and provide ease and assistance to the prosecution without causing any prejudice or embarrassment to accused persons.

14. With these observations, the instant Criminal Revision is allowed. The trial Court is directed to frame a consolidated charge as mentioned above. Above are the reasons of my short order dated 29.05.2017. JK/A-20/Sindh Revision allowed.