P L D 1956 Federal Court 147 (PLP)

MUHAMMAD MUNIR, C. J,‑

This is an appeal, by special leave, from the judgment of a single Judge of the High Court of Lahore maintaining the appellant's conviction and sentence for cheating. The appellant, Raja, Bashir Muhammad, was a contractor of the Municipal Committee, Murree, from whose Forest Department hp used to purchase timer. According to the terms of the appellant's contract with the Committee, he had to make advance payment for each purchase. Between 22nd May, 1948 and 12th April, 1950, the appellant purchased timber on ten different occasions for which he purported to make advance payment by the following cheques :‑ Nos. Date of Purchase. The amount of the cheque. Rs.???????????????????? a.?????????? p. 22nd May 1948 1,146???????????????? 10????????? 0 6th November 1948 1,378????????????????? 6?????????? 0 9th November 1948 2,000????????????????? 0?????????? 0 18th December 1948 1,694????????????????? 0?????????? 0 18th December 1948 127???????????????????? 13???????? 0 3rd May 1949 4,500?????????????????? 0????????? 0 20th June 1949 6,500?????????????????? 0?? ???????0 22nd August 1949 6,500?????????????????? 0????????? 0 6th January 1950 11,438???????????????? 0????????? 0?? 12th April 1950 3,427?????????????????? 0????????? 0 22nd May 1948 1,146?????????????????? 0????????? 0 Rs. 38,711???????? 13????????? 0 Out of these cheques only two, namely, those of 6th January 1950 for Rs. 11,438 and 12th , April 1950 for Rs. 3,427 were presented to the banks but they were both dishonoured. None of the other cheques was ever sent to the bank for payment. Throughout this period the appellant's credit balance with the Bank never exceeded Rs. 200 except on 20th June 1949 when it stood at Rs. 955 against the cheque dated 20th June 1949 for Rs. 6,500 and at Rs. 1,450 against the cheque of 3rd May 1949, for Rs. 4,

500. At the relevant time Khawaja Abdur Rahman was the Secretary and Muhammad Shafi the Treasurer and Accountant of the Committee. It was the duty of the Treasurer to present all cheques for payment and to inform the Secretary if any cheque was dishonoured or the amount thereof not otherwise received. During the period in question Muhammad Shafi did not report that all these cheques lay uncashed. On 2nd November 1950, some record of the Committee which lay in the Tax Branch was burnt. Arson being suspected, an enquiry was held and the accounts of the Committee were checked by Mr. Ghulam Muhammad, Senior Auditor, who reported a defalcation of considerable sums including the price of the timber purchased by the appellant for which the cheques mentioned above gad been issued. After investigation 4 separate cases were put in before a Special Judge against the appellant, Khawaja Abdur Rahman and Muhammad Shafi. The first was discharged and the second acquitted but the appellant was convicted on each charge in each case and was sentenced to an aggregate term of 10 years' imprison?ment and a fine of Rs. 38,

900. Against the appellant the charge framed was that he cheated the Committee repeatedly by taking delivery of timber on the ten aforesaid occasions against cheques which he knew could not be cashed and that he thus obtained considerable quantities of timber by false pretences. Against Muhammad Shafi the charge was in the alternative, namely, that he abetted the appellant in the commission of the offence of cheating or that he received the amount of the cheques from the appellant and committed criminal breach of trust in respect of it punishable under section 509 of the P. P. C. The latter charge was apparently framed on the appellant's allegation that he had paid the amount to Muhammad Shafi accused. The learned Special Judge found that the appellant did not make any payment for any of the purchases of timber and that throughout this period he had a nominal credit balance with his banks wholly insufficient to enable the banks to cash any cane of the cheques. The appellant had produced some evidence to show that the Committee was in such matters following a practice according to which the amount of the cheques was later ' paid in cash, entered in the books, and the cheques returned without any receipt for the payment having been issued. This evidence was disbelieved by the Special Judge and the learned Judge of the High Court who examined the evidence in appeal. When the petition for special leave was presented Mr. Nazir Ahmad Khan raised a number of law points none of which except one has been touched by Mr. Manzur Qadir who argued the appeal. That point is that the joint trial of the appellant with Muhammad Shafi was illegal, not being authorized by any provision of the Code of Criminal Procedure, and that therefore the conviction and the sentence are a nullity in law. It is further contended that even if the trial was permissible, the appellant should not have been tried with Muhammad Shafi because the joint trial has prejudiced the appellant in his defence. We have heard a three‑day argument on this question, but are of the view that there is no substance in either of these contentions. The provision which authorizes joint trial of persons is section 239 of the Criminal P. C., which says that in the following seven instances persons may be charged and tried together :‑ (a) persons accused of the same offence committed in the course of the same transaction ; (b) persons accused of an offence and persons accused of abetment, or of an attempt to commit such offence (c) persons accused of more than one offence of the same kind, within the meaning of section 234 committed by them jointly within the period of twelve months ; (d) persons accused of different offences committed in the course of the same transaction (e) persons accused of an offence which includes theft, extortion, or criminal misappropriation, and persons accused of receiving or retaining, or assisting in the disposal or concealment of property, possession of which is alleged to have been transferred by any such offence committed by the first ?named persons, or of abetment of or attempting to commit any such last‑named offence ; (f) persons accused of offences under sections 411 and 414 of the I.P.C or either of those sections in respect of stolen property the possession of which has been transferred by one offence ; and (g) persons accused of any offence under Chapter XII of the I. P. C., relating to counterfeit coin, and persons accused of any other offence under the said Chapter relating to the same coin, or of abetment of or attempting to commit any such offence. This enumeration is followed by a general, direction that "the provisions contained in the former part of this Chapter shall, so far as may be, apply to all such charges". The argument of Mr. Mahmud, who appears on behalf of the Crown to oppose the appeal, is that the final report by the police under section 173 of the Code of Criminal Procedure had alleged that the three accused were guilty of offences under section 420, read with section 109, and under section 409, and that since what has to be seen in cases falling under section 239 is the accusation, the charges against the appellant for cheating and against Muhammad Shall for abetment of cheating or criminal breach of trust could rightly be framed. It may be mentioned here that what is contended by the learned counsel for the appellant is not that in the state of evidence no charge under section 409 should have been framed but that no charge under that section could have/ been framed against Muhammad Shafi at his joint trial with the appellant, in other words that on that charge Muhammad Shafi could not have been tried at all with the appellant. As regards this, reliance is placed by Mr. Mahmud on clause (b) of section 239. which permits the joint trial of persons accused of au offence and persons accused of its abetment and for the' addition of the charge under section 409 against Muhammad Shafi the provisions of section 236 are invoked in aid. "Section 236 appears in the same Chapter as section 239 and provides that. If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed 'all or any of such offences, and any number of such 'charges may be tried at once; or he maybe charged in the alternative with having committed some one of the said offences". The argument, in brief, is that the joint trial of the appellant for the substantive offence of cheating and Muhammad Shafi for the abetment of cheating being permissible under section 239, the Special Judge under the authority of the direction in section 239 that the earlier provisions contained in the Chapter in which that section occurs shall, 'as far as may be, apply could resort to the provisions of section 236 in framing the additional or alterna?tive charge of criminal breach of trust against Muhammad Shaft. The illustration appended to section 236 contemplates a case where a person may be charged with criminal breach of trust and cheating or criminal breach of trust or cheating If, therefore, it can be held that section 236 can apply to the case of a person who is being jointly tried with others under, section 239 the objection against the joint trial must be repelled. There are several pre partition teasel; in the High Courts in , which it has been held that the provisions of Section 136 may be, called iv aid where a person is being jointly tried with others under section

239. Reference in this connection may particularly be made to the judgment of Rankin, C. J., in Totameah Chowdhury v. Emperor (I L R 56 Cal. 1106) where that learned Judge repelling the contention that an' alternative charge under section 155 could not be added in the case of a person who was being tried with others under section 239 observed as follows :-- "The first objection is the joinder of the charges in the present case. It is said that it was wrong in this case to charge the first accused alternatively under section 155, I. P: C. It is not here disputed that if the man had been tried by himself the additional charge under section 155 would have been within section 236 Criminal P. C., but it is said that if these persons were all being tried together the section which has to be regarded is section 239 and that under section 239 there is no provision made by which accused 1 in addition to being charged with rioting and other charges arising out of the riot could be charged in the alternative under section

155. I cannot see that there is any necessity to read sections 239 and 236, in such a way as to produce that result. In this particular case accused 1 has not been convicted under section

155. The question, therefore, is a pure question whether the trial is vitiated by the joinder in the alternative of the charge under section 155, and I must flatly refuse to lay it down that where accused persons are being tried together under section 239 it is not possible to have an alternative charge against one of those accused persons. I see no necessity whatever to read this section in that manner. Section 236 deals with the question of what charges a single person 'may be made to meet and it says that in certain cases where it is doubtful which offence he has committed you may charge him with all and you may charge him also in the alternative. The object of section 239 is not to say what charges a man may be called upon to meet but to say what persons may be charged and tried together. I see no difficulty at all in that matter." To the same effect is the decision of Young, C. J. and Monroe J, in Banshi Rain v. Emperor (A I R 1943 Lah. 220.) where earlier 'Cases have been referred to. In our opinion, the general provision I the and of section 239 which makes earlier sections of the Chapter relating to charges applicable to cases under that, section is clear and unambiguous and permits the trial of alternative charges against any of the accused persons who are being jointly tried under section

239. It may be, and we express no opinion on thin 'precise point, that where the only justification for a joint trial it the sameness of the transaction, charges in the alternative testing to other transactions are not admissible because the terms of clause (a) and clause (d) of section 239, but that is not the case here because the learned counsel for the Crown relied exclusively on clause (b) and not at all oh clause (d) of the section. It‑ seems to us to be obvious that section 236 can be called in aid where in the case of one of the accused persons who is being jointly tried with others it is, at the time the charge is framed, doubtful which of several offences the facts which can be proved will constitute. In such a case an additional charge or a charge in the alternative can be and should be added against that accused person. The second objection of Mr. Manzur Qadir that the appellant has been embarrassed or prejudiced in his defence is completely devoid of force. Apparently the alternative charge under????? section 409 was added against Muhammad Shafi because of the appellant's contention that he had paid the amount of the cheques to that accused. The Special Judge seems to have taken the view that if the appellant proved in his defence that he had paid the amount to Muhammad Shafi he would convict the latter of criminal breach of trust. It may be that Muhammad Shafi could have complained of a procedure which permitted a co‑accused to assume against him the role of a prosecutor making allegations entirely consistent with those of the prosecution, but how the appellant has been affected by such procedure appears to us to be wholly incomprehensible. It is admitted that neither the evidence produced by Muhammad Shafi nor any part of the statements in Muhammad Shafi's cross‑examination of the prosecution witnesses has been relied upon by the learned Judge of the High Court against the present appellant. Nor has Muhammad Shafi's own statement' been treated as evidence against the appellant. The charge against the appellant was so simple and direct that there can be no question of his having been confused about the nature of the accusation against him or of his having been embarrassed in his defence. The prosecution having proved that the amount of .the cheques was never recovered from the banks nor the price of the timber credited in the books of account of the Committee, the appellant was required to show that he had intended to pay or paid the amount of the cheques. He could neither produce the cheques in question nor any receipt for, or books evidencing, the alleged payments. That being the position, the appellant was rightly convicted, and there is no force in any of the legal objections raised by him, the appeal is dismissed. A.H.???????????????????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.