P L D 1957 (W P) Karachi 814 (PLP)

It appears that the appellant was an Accountant in the office of Co-operative and Marketing Advisor, Government of Pakistan, Karachi but he also became an acting Cashier on 23rd April 1952 and continued as such till 22nd July 1952. It will be seen from the charge that he is alleged to have mis-appropriated certain amounts at different periods but was charged for a lump sum amounting to Rs. 11,071-8-3 said to have been misappropriated between. 23rd April 1952 and 22nd July 1952. He is also alleged to have forged entries awl signatures in pay bills of Amanullah Khan and M. F. Ghaffar. It was not clear from the judgment as to when the alleged forgeries were made but on scrutiny I found that the alleged forgery in respect of M. F. Ghaffar was committed on 22nd February 1952. The judgment did not clearly specify as to how the amount of Re. 11,071-8-3 was made out but both the parties have stated that it com prises the following items (1) Rs. 6,417 handed over to him on 23rd April 1952 when he got the charge of the office of Cashier. (2) Rs.' 1,500 advanced as cycle allowance. (3) Re. 1,375 again as cycle allowance. (4) Rs. 1,366 as repatriation allowance payable to Abdul Haq. (5) Rs. 106 travelling allowance payable to Ulfat Husain, (6) Rs. 500 recreation allowance payable to Jamil. (7) Rs. 214 payable to Amanullah. (8) Re. 69-3-0 refund by an officer named Tariq. (9) Rs. 6-7-0 payable to M. F. Ghaffar. On going through the cash book and the relevant entries I find that Rs. 1,500, were shown to have been paid on 26th February 1952 Rs. 500 were said to have been received for pay ment to Jamil Ahmad Khan on 16th April 1952, and Rs. 67 (sic) were shown to have been paid to M. M. Ghaffar (sic) on 16th February 1952. Obviously these three items were not subject matter of the charge. One of the forgeries said to have been committed in respect of payment to M. F. Ghaffar also took place much before 23rd April 1952. The first contention of the learned counsel for the appellant is that he could not be tried jointly for offences under section 409, P. P. C. and that of under section 467, P. P. C. Reliance has been placed on my judgment delivered in Criminal Appeal No. 178 of 1955 decided on 20th February 1957. Therein I observed as follows :- "Section 235, Criminal P. C. says that if, in one series of acts so connected together as to form the same transac tion, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence. To attract the application of section 235, Criminal P. C. it is necessary that all the offences must have been committed in the course of the same transaction. It will be seen from the charge that two cases of embezzlements have been laid at the door of the appellant and forgeries in respect of documents con nected with both of them have also been made the basis of the charge. It may be said that a criminal breach of trust in respect of a particular sum and forgery of docu ments in connection therewith may form the same transaction but it is impossible to urge that embezzlements of two separate sums and forgeries in respect of both of them can form the same transaction. If offences have been committed during the course of several transactions such a case is not covered by the provisions of section 235, Criminal P. C. To this effect there are various decisions which are cited by Mr. Tufail Ali. I may mention Emperor v. Muhammad Ismail (A I R 1937 Sind 1) ; Crown v. Attur Sing (26 S L R 191) ; Muhammad Hahz v. Crown (P L D 1952 Lah.34) ; Sailendra Prasad v. Crown (P L D 1952 Dacca 81) and Emperor v. Anant (A I R 1926 Bom. 110)". This view of mine finds support from the decision of the Supreme Court of India in Chandi Prasad Singh v. The State of Uttar Pradesh (A I R 1956 S C 149). Therein their Lordships observed "It is nest contended that there has been a violation of section 234 of the Code of Criminal Procedure in that the appellant had been charged with three offences under section 409 and one under section 477-A. But the case is governed by section 235, as the several offences under sections 409 and 477-A arise out of the same acts and form part of the same transaction". My attention has been drawn to a case decided by Mr. Justice A. R. Changez Ghulam elilani v. The State (P L D 1957 Lah. 290). This case also proceeds on the basis that to warrant joinder of charge for offences under sections 409 and 476 P. P. C. they must have been committed in the course of the same transaction. But the learned judge proceeded to observe: "It is, therefore, clear that even if different offences are committed on different occasions in pursuance of a con spiracy then they are held to constitute the same transaction. Similarly, on the same principle, if instead of conspiring with another person the accused had by himself conceived of a scheme of misappropriating the monthly pay of the sweeper continuously and, in pursuance of that scheme, had misappropriated the pay for a number of months by forging vouchers and by making false entries in the cash book then I do not see how it would make any difference from a case in which offences are committed in pursuance of a conspiracy". There can be no doubt that if offences are committed in pursuance of a conspiracy they must be said to have been committed in the course of the same transaction but the extension of the principle to a mere intent is to my mind an unjustified extension of the principle laid down by the Privy Council in the cases cited by the learned judge. If a person takes to dacoity and resolves to commit dacoities throughout his life, can it be argued that all the dacoities committed by him after the formation of that intention were committed in the course of the same transaction. I do not think 11, should follow the decision of my brother judge of Lahore Bench to that extent. It is clear from the allegations in this case that some of alleged misappropriations took place when ire was not even a cashier. After he became cashier, on the basis of the prosecution case, it became easier for him to mis-appropriate the amounts and he committed various acts of misappropriation. The alleged forgeries relate to different offences committed at different times and by no stretch of imagination it can be said that the offences with which he stood charged were committed in the course of the same transaction. The learned counsel for the State has also not contended that the offences were committed in the course of the same transaction. In fact even the charge does not indicate that these offences had been committed in the course of the same transaction. The learned Special judge possibly proceeded on the basis that it was possible to join offences under section 409 and those under section 467, P. P. C. It has been repeatedly held that the offences under these two sections are of different category and cannot be joined except by notice of section 235, Criminal P. C. The trial is necessarily bad because of mis-joinder. The next contention of the learned counsel for the appellant is that the learned Judge had a bias against the refugees as a class and this bias has vitiated the judgment. My attention has been drawn to the following which appears in the judgment :- "From the year 1949 upto the period, when he handed over the charge, he had not kept the accounts properly, and had been systematically mis-appropriating sums of money thinking, that in Pakistan, no body would take notice of his mis-deeds, because he is a refugee". This sentence definitely insinuates two things, firstly that refugees as a class indulge in misappropriations and, secondly the Government as a matter of policy overlooks these misdeeds of refugees. I asked the learned counsel for the State to point out any material on which this observation was based. He candidly conceded that there is nothing on the record to lend support to this assertion. The A, A. G. appeared at my instance and stated that there is nothing on the record even to show that the appellant is a refugee. I have very anxiously considered as to what could be the reason for this defamatory observation by a judicial officer occupying the high position of a Special judge charged with the duty of trying public servants many of whom must belong to the refugee class. I have failed to find any reason and this observation can only be ascribed, as contended, to a bias ingrained in the learned judge regarding refugees. The E existence of such a bias disables a judge not only from trying cases in which the accused are refugees but from performing any judicial function whatsoever. I find that prima facie there is a good deal of evidence against the appellant but justice should not only be done but should appear to be done. If a judicial officer indicates that he has bias and prejudices against a class no person belonging to that class can be persuaded to feel that he has got justice. In this view of the matter also the case has to be retried. I accordingly accept this appeal, set aside the conviction and sentence and direct retrial by the District and Sessions Judge, Karachi himself. This judgment should be brought to the notice of the judges of Karachi Bench and a copy be sent to the Ministry of Intetior. The appellant shall remain on bail already furnished by him till the conclusion of the trial by the learned District and Sessions Judge, Karachi. A. H. Retrial ordered.