P L D 1960 Dacca 412 (PLP)

ISPAHANI, J.‑This is an appeal by one Arshed Ali Khan, who was tried by the Special Judge, Barisal, and convicted under section 161, P. P. C., and sentenced to rigorous imprisonment for 2 years and also to pay a fine of Rs. 25, in default to rigorous imprisonment for one month more. He was also convicted under section 5 (2) of the Prevention of Corruption Act, but no separate sentence was passed thereunder.

2. The case for the prosecution is that the appellant was the Tahsildar of the Government Acquired Estate Kutchery of Amragachia within P. S. Mirzaganj of Patuakhali Sub‑ division of Bakerganj district in 1363 B. S. He is said to have taken a bribe of Rs. 6 as illegal gratification from P. W. 1 Azaharuddin when he went to pay rent of Rs. 203‑9‑6 on the 24th Magh, 1363 B. S., corresponding to 7‑2‑

57. He is also alleged to have taken a bribe of Rs. 2 as illegal gratification from P. W. 4 Mobabbat Ali when he went to pay rent amounting to Rs. 27‑9‑0 on the 20th Falgun, 1363 B. S., corresponding to 4‑3‑

57. On this latter date, he is also said to have taken a bribe of Rs. 5 as illegal gratification from P. W. 7 Lehajuddin when he went to pay rent of Rs. 30‑14‑0.

3. The prosecution has examined witnesses who are said to be eye‑witnesses of the 3 bribe‑takings by the appellant.

4. It is not necessary to give a decision on the merits of the case, as a legal objection has been raised by Mr. Azizuddin Ahmed appearing on behalf of the appellant. The learned Advocate has argued that the trial of the appellant on three separate and distinct offences under section 161 of the Pakistan Pencd Code and also for three separate and distinct offences under section 5 (2) of the Prevention of Corruption Act, is illegal and void on account of misjoinder of charges. Section 233 of the Code of Criminal Pro cedure provides that for every distinct offence of which any person is accused there shall be a separate charge and every such charge shall be tried separately, except in the cases mentioned in sections 234, 235, 236 and

239. Subsection (1) of section 234, provides that when a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with, and tried at one trial for, any number of them not exceeding three. Subsection (2) of section 235 is to the effect that if the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the person accused of them may be charged with, and tried at one trial for, each of such offences.

5. Mr. Azizuddin contended that in the present case as offences under section 161, P. P. C., and section 5 (2) of the Prevention of Corruption Act are distinct and separate offences, 6 of them could not have been tried together. He conceded that the trial of one offence under section 161 and one offence under section 5 (2) is permissible under subsection (2) of section 235 of the Code of Criminal Procedure. His argument was directed to the number of such offences which have been tried together, namely 6, which, according to him, is not permissible under section 234 of the Code of Criminal Procedure. Section 234 (1) provides that 3 offences of the same kind may be tried together in the same trial if committed within the space of 12 months. It does not contemplate the trial of offences of the same kind ex ceeding

3. There is authority for the proposition that section 235 is controlled by section 234, and both these sections are not mutually exclusive. There is further authority for the proposition that an offence under section 161, is a distinct offence from one under section 5 (2) of the Prevention of Corruption Act. Reference may be made to Muhammad Yusuf v. The Crown (7 D L R 302). In that case, the question arose as to whether separate sentences should be awarded if there was a conviction under section 161 (P. P. C.) and section 5 (2) of the Prevention of Corruption Act. Ibrahim and Chakraborti, JJ., held that although the conviction is valid, no separate sentence should be passed. From a reading of that decision, by implication it was held that offences under section 161 and section 5 (2) were distinct and separate offences. In Om Parkash Gupta v. The State of U. P., and Ram Gobind Singh v. The State of Vindhya Pradesh (P L D 1957 S C (Ind.) 513), which was a case under section 405, of the Penal Code and section 5 (1) (c) of the Prevention of Corruption Act, it was held that the offence created under section 5 (1) (c) of the Prevention of Corruption Act is distinct and separate from the one under section 405 of the Penal Code. It was held further that section 5 (1) (a) and section 5 (1) (b) are aggravated forms of sections 161 and 162 of the Penal Code and the intention could not be to abrogate the earlier offence by the creation of the new offences 'these two offences could co‑exist and the one would not be considered as overlapping the other. When the offences under sections 161 and 5 (2) are distinct and separate offences, the trial of three offences of the same kind committed within one year under section 161 and three offences under section 5 (2) would be a bar under section 234 (1) of the Code of Criminal Procedure. As, in the present case, 6 distinct and separate offences have been fried together, the trial is illegal for misjoinder of charges.

6. The result, therefore, is that this appeal is allowed and the conviction and sentence passed on the appellant under section 161, P. P. C., and section 5 (2) of the Prevention of Corruption Act, (Act II of 1947) are set aside and it is directed that the appellant be retried according to law. The appellant will remain on the existing bail pending his retrial. SATTAR, J.‑I agree. K. B. A. Appeal allowed.