2022 PLP 170 (YLRN)

FAHIM AHMED SIDDIQUI, J.

By filing the instant special criminal revision application, the applicant has impugned the Order dated 09-08-2019, passed by the learned Special Judge (Customs, Taxation and Anti-smuggling), Karachi. Through the impugned order, the learned Special Judge dismissed the application under section 233, Cr.P.C. filed on behalf of the applicant. Under the referred application, the applicant was seeking distinct and separate framing of charge against him and other accused persons in connection with certain offences for which he is being tried by the learned Court of the Special Judge.

2. The applicant and some other accused persons are facing a trial regarding some offences under the Customs Act. 1969 for which proper FIR was lodged by the FIA authorities. The allegation against the applicant is that he got registration of the export firm without observing the requisite formalities. It is also the allegation against the applicant and some other accused persons that they have placed bogus E-Forms for export of certain articles purported to be issued from Messrs Silk Bank, Faisal Bank, and United Bank. Allegedly they succeeded in exporting gold or other valuables to UAE, etc.

3. Mr. Shaukat Ali Shahroz, the learned counsel for the applicant, submits that when there are several distinct offences, and the same are mentioned separately in the final report then how one charge suffices for all the distinct offences. According to him, there are total 376 transactions and since in all the transactions, the allegations are levelled against different accused on different dates, as such every transaction is a separate offence and be tried separately. He submits that the alleged offences are also not within 12 months but in all cases, the offences have taken place beyond one year's time. According to him, in such cases, the law is very much clear, which demands that these offences should not be joined in one and a single trial. In the end, he submits that the trial Court may be directed to segregate the charges according to distinct offences.

4. It is note worthy that none was present on behalf of the state in spite of service of notice.

5. After hearing the arguments, I have scanned the available material in the light of the valued submissions made before me. The issue raised is addressed under 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 situations mentioned in sections 234, 235. 236 and 239 of Cr.P.C. Before the trial Court, the case is initiated on the basis of one FIR, as such only one challan was submitted. I am of the view that it will make no difference that there are 376 transactions for which the prosecution has lodged only one FIR as the said transactions are so connected that it would be felt appropriate that the same were cited in one and the same FIR. What is more nearly all the transactions are spread upon a period falling within twelve months except a few of them i.e. only 11 transactions, which are within one month beyond the period of one year. The litmus test for joinder of charge is that the same can only be permitted if it falls in any of the exceptions mentioned in section 233, Cr.P.C., which provides a venue of departure from the general rule. Nevertheless, these transactions are so connected together that they technically form the same transaction, as such the exception under section 235(1), Cr.P.C. is fully attractable to the case in hand. In this respect, I would like to take reliance from a case of colonial-era reported as Raj Bahadur v. Emperor (1935 Cr.LJ 1496) in which it is held 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."

6. I am of the view that the exception of the general rule expressed in section 233, Cr.P.C. 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 of the charge or charges brought against him. On the other hand, the exceptions in the said provision of law are also beneficial for the prosecution and accused, both; as they have to deal only one trial, hence 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 to save him to cause any embarrassment but it would avoid the multiplicity of trial. In the existing position of affairs, when the accused persons are charged conjointly, they will be at ease to face trial and there will be least chances of misconception in respect of their defence.

7. Nonetheless, the circumstances of every individual case are important for the determination of the question or the principal criteria for determining whether they form the same transaction or not? In this respect, the 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 Hon'ble 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."

8. In view of the above discussion, I am of the considered view that the impugned order is within the legal parameter, as such it does not require any interference under the revisional jurisdiction of this Court. Hence, the instant criminal revision application is dismissed. SA/A-148/Sindh Revision dismissed.