P L D 1962 (W (PLP)

This is an application under sections 435/439 read with section 561‑A of the Criminal Procedure Code on behalf of five persons who are being prosecuted, along with three others, under sections 420, 468 and 471 of the P. P. C. read with section 34 of the same Code. Briefly, the facts alleged by the prosecution in the case are that the accused Zahoor Ahmad, who is a partner of Messrs S. A. Brothers Karachi, approached the Bank of India Limited at Karachi on 13‑10‑59 to open two irrevocable letters of credit in favour of East Pakistan Tannery, Chittagong in the sum of Rs. 3,00.000 to be drawn by the latter on a draft, covering shipment of chrome leather by them to Karachi. Accepting the aforesaid proposal the Bank of India Ltd. requested the Central Bank of India Ltd. at Karachi to open two letters of credit for Rs. 2,00,000 and Rs. 1,00,0 0 respectively in favour of East Pakistan Tannery, Chittagong. The Central Bank of India Limited sent the necessary instructions to their branch at Chittagong. In pursuance of this arrangement the East Pakistan Tannery drew a sum of Rs. 3,00,000 from the Central Bank of India Limited at Chittagong by handing over bills of lading and invoices showing the prices, quality and quantity of the goods consigned to Karachi. When the papers were received at Karachi by the Bank of India Limited, they were presented to Messrs S. A. Brothers for payment, but the firm failed to make the payment on one pretext or the other. Eventually the Bank of India Limited got the said consignment valued and it was dis covered that the price of the goods was less than Rs. 31,000.

2. Two other letters of credit were similarly opened on the 21st of October 1959, at the request of the two accused Zahoor Ahmad and Abdul Aziz for a sum of Rs. 3,00,000 in favour of East Pakistan Tannery, Chittagong. The latter drew this money In the same manner as already stated, and once again the accused Abdul Aziz and Zahoor Ahmad, who are both described as brothers and partners of Messrs S. A. Bros. at Karachi, refused to make any payment to the Bank of India Limited against the documents received by the bank from Chittagong. The survey of this lot of goods showed that they were over‑invoiced and their value was only about Rs. 20,

000. It may be stated that on each occasion the letters of credit were opened on a deposit of 20 per cent margin.

3. It is further alleged that at Chittagong the money was received by the accused Muhammad Aslam who is also stated to be a brother of the two principal accused who operated at Karachi. It is stated that all these brothers are partners in East Pakistan Tannery at Chittagong. Muhammad Aslam is alleged to have presented the false shipping documents which led to the delivery of money at Chittagong. Accused Muhammad Anwar and Muhammad Shafi are also partners in the said Tannery and they are also alleged to have shared in the wrongful gain, as evidenced by their deposits in the National Bank of Pakistan, Khatoon Gunj Branch, Chittagong. The sixth accused Muhammad Nabi Rasool is the manager of the East Pakistan Tannery whereas the remaining two, namely, Abdur Rauf and Muhammad Yusuf are clerks of the Tannery in question, These three persons are alleged to have assisted and abetted in the dispatch of short goods and of inferior quality for the purpose of cheating the Bank of India Limited, Karachi.

4. The charge‑sheet was presented by the police in the Court of Mr. Ahmadullah, S. D. M. Cantonment, Karachi. The accused persons took an objection that the Court had no jurisdiction to try the case for the reason that some of the offences mentioned in the charge‑sheet were committed at Chittagong. The objection was, however, overruled by the trial Court. A revision petition was then presented to the Additional Sessions Judge, Mr. M A. Kazi, who found that‑ "At the present stage since the Court at Karachi has jurisdic tion at least to try the offence under section 420, P. P. C. against each of the several accused the Court has jurisdiction to take cognizance on the two police reports in respect of that offence. If after recording of evidence the Court comes to the conclusion that a case for charge of conspiracy has also been made out nothing would prevent the Court from trying all tie accused in respect of offence under section 120‑B and also offences under sections 420, 438 and 471, P. P. C. committed In pursuance of the conspiracy. But in the absence of any evidence to that effect the Court could only try the offence under section 420, P. P. C. In respect of the two transactions in two separate trials."

5. The subject of the place of inquiry or trial is dealt with in Chapter XV of the Criminal Procedure Code. Section 177 embodies the general rule to the effect that every offence shall ordinarily be inquired into and tried by a Court within the local limits of whose jurisdiction it was committed. The succeeding sections deal with specific situations or offences. It seems to me that as far as the offence under section 420, P. P. C. is concerned, the case is clearly covered by section 179 of the Cr. P. C. This section is to the following effect: "When a person is accused of the commission of any offence by reason of anything which has been done, and of any consequence which has ensued, such offence may be inquired into or tried by a Court within the local limits of whose jurisdic tion any such thing has been done, or any such consequence has ensued,"

6. There is ample authority for the view that section 179, Cr. P. C. contemplates cases where the act done and the consequence ensuing therefrom together constitute the offence. If the offence is complete in itself by reason of the act having been done and the consequence is a mere result of it, which was not essential for the completion of the offence, then section 179 would not be applicable. We may in this connection refer to Kashi Ram Mehta v. Emperor (A I R 1934 All. 499), Gobindram Dowlatram v. Emperor (A I R 1931 Sind 94), Gokaldas Amarsee and others v. Emperor (A I R 1933 Sind 333) and Mukhi Tirathdas v. Jethanand Maivalomal and another (A I R 1937 Sind 68). The offence punishable under section 420 of the P. P. C. clearly comprises, two distinct phases, namely, the act of cheating and the delivery of property as a result of dishonest inducement brought on by act of cheating. In other words, the offence consists of some thing which has been done by the person accused and of the consequence which has ensued as a result of the doing of that thing. In the present case the misrepresentation by the two principal accused persons was done at Karachi, whereas the delivery of money as a consequence thereof took place at Chittagong. Under the provisions of section 179, Cr. P. C. the offence under section 420, P. P. C. would therefore be triable either at Karachi or at Chittagong.

7. These observations would apply not only in the case of the two principal accused persons namely Zahoor Ahmed and Abdul Aziz, but also in the case of the other accused persons who are alleged to have abetted the commission of the offence punishable under section 420, P. P. C. This result ensues from the provisions of section 180 of the Criminal Procedure Code, which prescribes that "When an act is an offence by reason of its relation to any other act which is also an offence or which would be an offence if the doer were capable of committing an offence, a charge of the first‑mentioned could be inquired into or tried by a Court within the local limits of whose jurisdiction either act was done". Illustration (a) to section 180 makes the meaning further clear by dealing with a charge of abetment, and laying down that it may be inquired into or tried either by a Court within the local limits of whose jurisdiction the abetment was committed, or by the Court within the local limits of whose jurisdiction the offence was committed.

8. Mr. S. A. Ashfaq, the learned counsel appearing for the petitioners, drew my attention to the case of Kali Charan v. State (A I R 1955 All. 462) where a learned single Judge was pleased to hold that‑

"Offences under sections 420, 468, 471 and 474 of the Penal Code are not such which can be committed in more than one place and therefore section 182 of the Criminal Procedure Code would not apply." There is no elaborate discussion of the point in that judgment, but it seems to me that the remarks are obviously not correct in so far as the offence under section 420 of the Penal Code is concerned. The definition of the offence punishable under section 420 clearly indicates that the acts constituting the offence can be split up into at least two stages namely, the act of cheating and the consequential act of delivery of property. With the greatest respect, therefore, to the learned Judge who decided this case, I am of the view that the place of trial in respect of an offence under section 420 or the abetment thereof will be regulated by the provisions of sections 179 and 180 of the Criminal Procedure Code, and these offences may, therefore, be tried in the present case either at Karachi or at Chittagong in other words, the Karachi Court clearly has jurisdiction to try the offence under section 420 and the abetment thereof.

9. As regards the offences punishable under sections 468 and 471, the position does appear to be different. Section 468 punishes the act of forgery with the intention that the document forged shall be used for the purpose of cheating. The allegations in the present case go to show that the documents in question were forged at Chittagong and they were intended to be used at that very place, namely by being presented to the Chittagong Branch of the Central Bank of India, Limited. In other words, the offence was completed at Chittagong. Similar is the case with the offence punishable under section 471 of the P. P. C. It seems to me, therefore, that as far as the offences under sections 468 and 471 are concerned, these having been committed and completed at Chittagong, the Courts at Karachi will have no jurisdiction.

10. It was, however, contended by Mr. Abdul Hai Qureshi, the learned counsel appearing on behalf of the State, that the case is governed by clause (d) of section 239 of the Criminal Procedure Code inasmuch as the various offences charged in this case were committed in the course of the same transaction. He pointed out that there was in fact a conspiracy to commit these offences. In putting forward this argument the learned counsel was drawing upon the observations made by the learned Additional Sessions Judge in the order under revision. The learned Additional Sessions Judge has observed that after recording the evidence the Court will be in a position to determine whether a charge of conspiracy can be sustained and, if so, then nothing will prevent the Court from trying all the accused in respect of these offences read with section 120‑B of the P. P. C. It may be pointed out that this is not the correct position in law. As observed by Abdul Rashid, C. J. in S. M. K. Alvi v. The Crown (P L D 1953 F C 189)‑

"The applicability of clause (d) of section 239 of the Criminal Procedure Code has to be determined by reference to facts mentioned in the accusation as read out to the accused persons . . . . . . . . . . . . . . It is well‑settled that the point of time at which, for the purpose of applying the provisions of section 239 (d), Criminal Procedure Code, it falls to be determined whether different offences charged were committed in the course of the same transaction, is the stage of the accusation, and not the stage of the conclusion of the trial. The validity of joinder is to be judged in relation to the facts contained in the accusation, and not in relation to the facts eventually found." A similar view was expressed by their Lordships of the Privy Council in Babulal Chaukha.nl v. King‑Emperor (A I R 1938 P C 130). it will be seen, therefore, that she question of the applicability of section 239 (d) of the Cr. P. C. has to be decided with reference to the charge sheet submitted in this case, and not with reference to the evidence which may eventually be brought on the record.

11. Mr. Abdul Hai Qureshi contended that in the charge sheet there is a clear recital that the accused persons were acting in league with each other. This is not the same thing as saying that various offences charged against the petitioners were com mitted in the course of the same transaction. However, even if the charge‑sheet is so interpreted, there is still a further aspect to be considered, namely, whether section 239 of the Cr. P. C. overrides the provisions contained in Chapter XV of the Code as to the place of inquiry or trial. In other words, does section 239 (d) of the Cr. P. C. confer jurisdiction on a Magistrate to try all the offences committed in the course of the same transaction even if according to the law regarding territorial jurisdiction as contained in Chapter XV. that Magistrate would not be competent to try some of those offences for the reason that they were committed outside his territorial limits. The answer is clearly in the negative. The place of trial or inquiry is regulated by the provisions of D sections 177 to 183 and the provisions contained in the subsequent Chapter XIX dealing with the joinder of charges ‑‑ persons could not have been intended to nullify the effect of the earlier sections. Section 239 and the other sections preceding it in Chapter XIX do not deal with the question of territorial jurisdiction at all, and in fact proceed on the assumption that the Magistrate taking cognizance of the case would be the one having territorial jurisdiction in the matter.

12. In Mahomed Ayoob Khuro v. Emperor (47 Cr. L J 455) it was observed that‑

"Section 239, Cr. P. C. relates to charges and has no reference to jurisdiction or venue of trials, matters dealt with in Chapter XV of the Code. The fact that accused persons may be charged and tried jointly under section 239, does not give territorial jurisdiction to a Court to try them." Reference in this connection was made to Bissawar v. Emperor (A I R 1924 Cal. 1034) and Sachidanandan v. Gopala Ayyangar (A I R 1920 Mad. 839). The same view has been expressed in Rameswaralal Bhuramal v. Dwarka Prasad and others (A I R 1958 Manipur 14).

13. It would thus be seen that the question of the place of inquiry or trial of an offence is one which has to be determined in the light of the provisions contained in Chapter XV of the Code of Criminal Procedure, namely sections 177 to 183, E irrespective of the fact that under Chapter XIX of the Code persons accused of the various offences may be jointly tried. Now in the present case, I have already held that the offence punishable under section 420, P. P. C. can be tried either at Karachi or at Chittagong, but the offences punishable under sections 468 and 471 of the P. P. C. cannot be tried by the Courts at Karachi for the, reason that they were committed at Chittagong. Even if it be presumed that they were committed in the course of the same transaction, the position as regards the place of trial is not affected thereby because section 239 (d), Cr. P. C. does not override the provisions of Chapter XV.

14. The revision petition is therefore, accepted and the order of the learned Additional Sessions Judge is modified to the effect that even if it is found that the offences under sections 468 and 471 P. P. C. were committed In the course of the same transaction or in pursuance of a conspiracy, they would still not be triable by the Courts at Karachi. The Courts at Karachi can take cognizance only of the offence under section 420 of the P. P. C. or abetment thereof. S. B. /A. H. Petition accepted.