1996 PLP 1639 (MLD)

4. At the very outset the learned counsel for the appellant vehemently contended that it is a clear case of misjoinder of accused persons and the appellant has been prejudiced by trying all the three transactions together and the error committed by the learned trial Court is not curable under section 239 of the Cr.P.C.

5. As the learned counsel for the appellant, at the very outset has raised preliminary point of misjoinder of charges and accused persons in the case, as such, as argued that ab initio, the trial was illegal and vitiated. It would be appropriate to deal with legal issue raised by the learned counsel as the contention seems quite plausible. The learned counsel for the. State frankly conceded that no doubt it is a clear case of misjoinder of accused persons and charges; further contended that the mistake is curable under section 239 of the Cr.P.C. and section 537 of the Cr.P.C.

6. Admittedly, each of the accused's act was his own independent act of receiving bribe as alleged by the prosecution and it was not the case of prosecution that there was any pre-concert between the accused persons; even the A charge framed against the appellants does not reflect the accused persons acted jointly. In case Muhammad Abdul Rauf v. The State PLD 1958 SC 131 where identical facts were present; it was held that the joint trial of the appellants was vitiated being illegal and no question as to whether prejudice was caused or not be considered as the joint trial had resulted from adopting a mode of trial prohibited by the code and it could not be cured even under section 537, Cr: P. C.

7. The contention of the learned counsel for the State that the amendment in section 537, Cr.P.C. (W.Pak. Amendment Act, 1964), cured this irregularity of misjoinder of charges and accused person is misconceived relevant portion of the amended section 537: ‑‑ "Subject to the provisions hereinbefore contained, no finding sentence or order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision on account' (a) ????????????????????????.. ?(b) Of any error, omission or irregularity in the charge or mode of trial, including any misjoinder of charges', or ????? " 8. h was observed in case Rehmat and 2 others v. The State 1968 PCr.LJ 1935 (Lahore) that it is true that due to an amendment in the Criminal Procedure Code by West Pakistan Amendment Act XVII of 1964, an error, or omission in the conduct of the trial will be curable under section 537, Cr.P.C. of the Criminal Procedure Code where no failure of justice has been occasioned but that does not mean as observed in case Ishtiaq Ali v. The State 1977 PCr.LJ 145 that trial cannot be conducted in utter disregard of provisions of that act and the case was ordered for re‑trial.

9. In the case in hand all the accused when charged had, denied the allegations; three transactions were alleged in the case that is first payment of Rs.5,000; second payment of Rs.22,000 and third payment of Rs.13,000 was paid to the appellant; the learned trial Judge in this regard observed that the complainant could not produce any cogent evidence to establish that he had paid Rs.5,000 and Rs.22,000 on‑5‑6‑1986 and held that portion of charge could not be proved against the appellant and the co‑accused hence acquitted: in case Muhammad Abbas v. The State 1973 SCMR 542 wherein the facts were identical and as there was two transactions, it was observed by their Lordships that as in case the two accused persons were not connected with each other; the trial had seriously prejudiced the case of the appellant and held that the irregularity committed under section 239, Cr.P.C. is not curable by section 537 Cr.P.C.

10. In view of the aforementioned circumstances, following the law laid down by the Supreme Court I am of the opinion that the trial of appellant with '' ‑‑ acquitted, has prejudiced his case and the irregularity is not curable; therefore, I quash the proceedings and set aside the conviction of the appellant.

11. As the proceedings have been quashed and the appellant has already suffered agony of criminal proceedings since 1986. it would be in the interest of justice that instead of retrial; the competent Authority may proceed with disciplinary action if a case is made out.

12. The Criminal Revision No.29 of 1989 filed by the complainant is also disposed of in the light of the aforementioned order as dismissed. N.H.Q./A‑38/L??????????????????????????????????????????????????????????????????????? ?????????? Proceedings quashed.