P L D 1957 (W (PLP)

SHABIR AHMAD, J.‑

The joint trial of Abdur Rahman, Overseer, Punjab P. W. D., Buildings and Roads Branch, and Tufail Husain, Road Inspector of that Department, resulted in the conviction of both under section 5 (2) of the Prevention of Corruption Act, 1947, for which offence each was sentenced to three years' rigorous imprisonment and a fine of Rs. 2000, default of payment of which was to entail further rigorous imprisonment for six months. Tufail Husain and Abdur Rahman have presented separate appeals, the one of the former being Criminal Appeal No. 114 of 1956, and that of the latter Criminal Appeal No. 93 of 1956. As the two appeals are directed against the same judgment and almost all points that arise in them are common, they will be disposed of by this order. The allegations of the prosecution against the appellants were that they had embezzled some wood belonging to Government, which was intended for constructing a boat bridge on the river Chenab and had sold that wood. Against Tufail Husain appellant there was the further allegation that he had used some wood belonging to Government for having some articles for his personal use made. Seven transactions of sale were relied upon by the prosecution, of which the first related to 25 logs and 80 rafters which were sold to Fazal Husain (P. W. 14), the second related to the sale of some timber to Qurban Ali (P. W. 36) for Rs. 80, the third related to the sale of 4 logs of wood for Rs. 80 to Muhammad Husain (P. W. 1), the fourth related to the sale of four logs of wood to Ghulam Rasul son of Umar Bakhsh (P. W. 9) for Rs. 60, the fifth related to the sale of two logs of wood to Sardar Khan son of Mian Khan (P. W. 15) for. Rs. 35, the sixth related to the sale of two logs of wood for Rs. 40 to Riaz Ahmad (P. W. 8) and the seventh related to the sale of two logs of wood to Ghulam Akbar (P. W. 32) for Rs.

200. Tufail Husain appellant was stated to have had an almirah and a meat safe made from some logs of wood belonging to Government. The dates of the above‑mentioned sales are not clear but they were alleged to have been effected within a few days. The dates on which Tufail Husain had some articles made for himself are also not specified. A number of witnesses were produced by the prosecution with regard to each of the eight transactions mentioned above and Mr. Qadir Bakhsh, who started hearing the cases as a Special Magistrate and was subsequently appointed a Special judge under the provisions of the Criminal Law Amendment Act, 1948, as subsequently amended, has held that the pro secution had succeeded in establishing that the two appellants had been guilty of all that had been alleged against them. The construction of two boat bridges, one on the river Chenab and the other on the river Jhelum, was considered necessary in July 1951, because the Indian troops were massing near our borders, but when Government felt that there was no danger of hostilities breaking out between Pakistan and India, they abandoned the idea of building boat bridges. It was represented to Government by the Punjab P. W. D., Buildings and Roads Branch, that before orders arrived about the abandonment of the construction of boat bridges, about eight lacs of rupees had been spent. The Government on receiving this information was of the view that there had been misappropriation of Government funds and material and an investigation into the affairs was ordered. On the 12th of May 1952, Sheikh Muhammad Asghar, Deputy Superintendent of Police, C. I. D., Branch, Punjab, lodged a report at the Gujranwala , Sadar Police Station, in which he made general allegation, that Government funds and property had been misappropriated. No details of such misappropriations were given to the report but after investigation the police sent separate reports under section 173 of the Code of Criminal Procedure with regard to different transactions which in their view called for action in Criminal Courts. The report under section 173 of the Code of Criminal Procedure on which the present trial started said nothing about the sales etc., and only mentioned that wood worth Rs. 1760 had been embezzled by the two appellants without even hinting that they had acted in concert. The first point taken by the learned counsel for the appellants was that the conviction of the appellants cannot stand, because the trial was vitiated by reason of misjoinder of charges and accused persons. It was contended that, as each of the seven transactions in which both the appellants were stated to have been concerned formed 'a distinct offence, not more than three of them could have been tried at one trial and the trial of the seven of them at one trial, which contravened the provisions of the Code of Criminal Procedure was illegal. It was further contended that the seven trans actions in which both the appellants were stated to have been concerned and the eight in which only Tufail Husain appellant was stated to have been concerned, could not have been tried at one trial because of the provisions contained ill the Code of Criminal Procedure. It was said, therefore, that the trial was vitiated by reason of illegalities in conducting it and the order of conviction and the sentences should be set aside. Mr. M. B. Zaman, the learned counsel for Tufail Husain appellant contended that Chapter XIX of the Code of Criminal Procedure, which deals with charges relating to criminal offences, was applicable to the offence of criminals misconduct dealt with in the prevention of Corruption Act, 1947, and, therefore, none of the provisions of that Chapter could be infringed in a trial for that offence. The contention that Chapter XIX of the Code of Criminal Procedure was applicable, to the case which was not controverted by the, learned counsel for the State, is, in my view, entirely correct. Mr. Zaman then referred to the 'definition of "offence" given in section 4 of the Code of Criminal Procedure, clause (o) of which section reads as follows:‑-- 'offence' means any act or omission made punishable by any law for the time being in force. It also includes any act in respect of which a complaint may be made under section 20 of the Cattle Trespass Act, 1851" and urged that each act of sale alleged against the appellants was a distinct offence' of criminal conduct dealt with in section 5 of the Prevention of Corruption Act, 1947. This contention of Mr. M. B. Zaman has to be examined in the light of the provisions of section 5 (1) of the Prevention of Corruption Act, 1947, wherein criminal misconduct made punishable by section 5 (2) of that Act has been defined. The learned counsel for the parties are agreed, and I agree with them, that of the four clauses of subsection (1) of section 5 of the Prevention of Corruption Act, 1947, that one which applies to the facts alleged against the appellants, is clause (c), which is to the effect that a public servant commits the offence of criminal misconduct if he dishonestly or fraudulently misappropriates or otherwise converts to his own use any property entrusted to him or under his control as a public servant or allows any other person so to do. It is obvious that ordinarily each sale alleged against the two appellants would attract the provisions of section 5 of the Prevention of Corruption Act, 1947, but the learned counsel for the State urged that this was not so in the present case, because it appeared that the two appellants had misappropriated, by one single act, some of the wood entrusted to them by Govern ment and had disposed of the wood thus misappropriated by (seven different sales, and added that, at any rate, all the seven sales and the act of misappropriation that preceded each sale would amount to one act of misconduct. If the learned counsel for the State could have shown that the seven transactions of sale alleged against the two appellants had followed a single act of misappropriation his arguments would have been unassailable, but on the record there is no evidence, direct or circumstantial, to support the contention of the learned counsel for the State that the wood, which was sold by means of seven different transactions, had been mis appropriated at one and the same time and I cannot, therefore, accept his argument that there was one act of misappropria tion which was followed by seven sales. In support of his contention that even if an act of misappropriation preceded each sale all the acts formed one offence of criminal misconduct, the learned counsel for the State relied on the decision of one of my learned brothers in Ghulam Muhammad v. Crown (P L D 1951 Lah. 11) herein it was held that a number of instances of taking bribe by an accused person could be proved at his trial for the offence of criminal misconduct in spite of the provisions of section 234 of the Code of Criminal Procedure. This decision has no relevancy because it dealt with clause (a) of subsection (1) of section 5 of the Prevention of Corruption Act, 1947, as it stood before its amendment by Act IX of 1950. Before its amendment, clause (a) was to the effect that a public servant who in the discharge of his duty habitually accepted or obtained or agreed to accept or attempted to obtain for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in section 161 of the P. P. C., was guilty of the offence of criminal misconduct. The word "habitually" originally occurring in clause (a) was deleted by section 3 of Act IX of 1950, but the case dealt with in P L D 1951 Lah. 11 related to a date prior to the one on which the deletion of the word "habitually" was brought about. As for the purposes of the case dealt with in On case cited by the learned counsel for the State the prosecution had to prove habitual, acceptance of bribe by the accused person before they could ask for his conviction for the offence of criminal misconduct, it is obvious that the instances of taking bribe could not be limited to three and section 234 of the Code of Criminal Procedure was not applicable. In clause (a) of subsection (1) of section 5 of .the Prevention of Corruption Act, 1947, there is no mention of habitual acts and, therefore, each act dealt with in that clause would amount to a distinct offence of criminal misconduct. I would hold, therefore. that the seven sales on which the prosecution relied in the case were seven distinct offences committed by the two appellants and because of the provisions of section 234 of the Code of Criminal Procedure could not have been tried at one trial. It is hardly necessary to add that section 234 of the Code of Criminal Procedure applies as much to a trial of more than one accused as it does to the trial of a single accused. The second contention of Mr. M. B. Laman, namely, that even if the seven transactions of sale could be dealt with at one trial, the offence alleged against Tufail Husain appellant alone could not be tried with the other offence, has also a good deal of force. The general rule contained in section 233 of the Code of Criminal Procedure is that there should be a separate trial for each offence committed by each accused person, but this. rule has some exceptions of which the one relevant for the present case is contained in section 239 of the Code of Criminal Procedure, which is in the following terms :‑ "The following persons may be charged and tried together, namely :‑ (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 P. 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 P. 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 ; and the provisions contained in the former part of this Chapter shall, so far as may be, apply to all such charges." It is not necessary for making section 239 of the Code of Criminal Procedure applicable that it be established by evidence that any of its clauses as applicable because the joint trial of more than one person is allowed if the accusation s distinguished from proof‑makes any of the clauses of the section applicable. The joint trial of the offences arising out of the seven sales alleged against both the appellants along with the offence alleged against Tufail Hussain appellant alone, which was not stated to have been committed in the course of the same transaction as the other offences, would have been permissible if the accusation were that the offence com mitted by Tufail Husain alone resulted from a conspiracy between the two or had been abetted by Abdur Rahman appellant, but there was no such allegation, and section 239 of the Code of Criminal Procedure could not be invoked A similar case was dealt with by a Division Bench in Noor Din v. Crown (P L D 1952 Lah. 185). In that case three persons were accused of having jointly committed a murder and one of them to have later committed another murder, the two murders 'being separated in point of time by some hours. It was not alleged that the second murder was committed as a result of a conspiracy between all the three accused or that it had been abetted by those two who had not taken part in it and it was held by the Division Bench that the two offences could not be tried at the same trial and that what had resulted was not a mere irregularity but an illegality. In the present case, there was no allegation that when Tufail Husain had some articles built for himself he had acted in conspiracy with Abdur Rahman appellant or had been abetted by him or that all the offences were committed in the course of a single transac tion and I would, therefore, hold' that the trial was vitiated not only on the ground that more than three offences were jointly tried but also because of the misjoinder of the accused persons. In view of what I have said above, I set aside the conviction of the appellants on the ground that the trial suffered from an illegality. This does not amount to an order of acquittal and the learned counsel for the appellants urged that I should hold that retrial was not indicated. Whether or not a retrial should take place is for the Provincial Government to decide and I will content myself with setting aside the conviction of the appellants and will say nothing with regard to the desirability or otherwise of fresh trial or trials of the appellants. A.H. Conviction set aside.