P L D 1957 (W (PLP)

A. R. CHANGEZ, J.‑

Ghulam Jilani, who, at the relevant time was Forest Range Officer, Murree Hills Division, was tried for offences under sections 409, 467 and 477‑A, P. P. C. by Khan Sher Bahadur Khan, Additional District Magistrate, Rawalpindi, exercising the powers of a Special judge under the Criminal Law Amendment Act, 1948. He found him guilty of all the aforesaid offences in respect of the pay of the office sweeper for the months of June, July and August, 1953, and sentenced him to one year's rigorous imprisonment on each count under section 409, P. P. C', and to one year's rigorous imprisonment on each count under section 467, h. P. C. He was also sentenced to pay a fine of Rs. 50 under section 409, P. P. C., and in default of payment of fine he was ordered to undergo rigorous imprisonment for a further period of three months. A separate sentence under section 477‑A, P. P. C. was not awarded as it was not considered necessary. All the sentences were ordered to run concurrently. The convict has appealed and Khan Abdul Qayyum Khan, Bar‑at‑Law, has argued the appeal on his behalf. The case for the prosecution is that one Nawab Khan Sweeper was appointed to work on part‑time basis in the Forest Range Office from the 1st of January 1953, on a salary of Rs. 10 per month. He, however, died on the 25th of April 1953. Mahmud Ali Shah (P. W. 7) was then the Forest Range Officer who continued to work as suchtill the 4th of June 1953, when Ghulam Jilani accused took over from him. The pay of Nawab Khan Sweeper for the months of April, May, June, July and August 1953, at the rate of Rs. 10 per month was disbursed, vide vouchers Exhs. P. A., P. B., P. C., P. D. and P. E. respectively All these vouchers except Exh. P. A. purport to bear the thumb‑impression of Nawab Khan Sweeper. Voucher Exh. P. A. bears the thumb- impression of Kala, son‑in‑law of Nawab, and pertains to the time of the predecessor of the accused. The remaining vouchers were prepared during the time when the accused was the Range Officer. Except for the entries marked P. B/1 in Exh. P. B. and P. C/1 in Exh. P. C., which are in the hand of Ghulam Hussain, Forest Guard (P. W. 3), all the other entries in Exhs. P. B., P. C., P. D. and P. E., are in the hand of the accused. The accused had attested the thumb‑impression of Nawab on all these vouchers and had also given a certificate on each voucher that the amount of Rs. 10 had been disbursed by him. He had also made entries, Exhs. . P. W. 1/D, P. W. 3/A, P. W. 3/B and P. W. 3/C in the cash‑book Exh. P. W. 7/1 showing the disbursement of pay to Nawab Khan Sweeper for the months of May, June, July and August 1953. On these facts, it was alleged that the accused had committed criminal breach of trust in respect of the pay of the sweeper for the months of May, June, July and August 1953, and had forged the vouchers and prepared false accounts to cover up the embezzlement. When this appeal came up for hearing in the first instance, I felt some doubt if the accused could have been tried for all these offences at one trial. I accordingly asked the counsel for both the parties to address me on this point, but as they were not ready the hearing of the appeal was postponed to another date. Now, I have heard the learned counsel for the appellant and Mr. S. A. Mahmud, Assistant Advocate‑General for the State, both on merits and in respect of the legal points raised in the appeal. Before considering the appeal on merits, it seems desirable to decide the two legal objections which have been raised on behalf of the appellant. The first point which the learned counsel for the appellant has raised is that the trial of the appellant stands vitiated on account of mis-joinder of charges. The accused was tried under the provisions of the Criminal Law Amendment Act 1948, and by virtue of section 5 (2) of this Act, the provisions of Chapter XX of the Code of Criminal Procedure have been made applicable to trial of cases under this Act. Accordingly, the particulars of the offences were stated to the accused as required by section 242 of the Code of Criminal Procedure and he was asked if he had any cause to show why he should not be convicted. The statement of allegations was as follows:‑ "Question :‑It is alleged against you that during your tenure as Range Officer Murree Hills Division, at Rawalpindi, you misappropriated the pay of the office sweeper for the months of May, June, July and August 1953, at the rate of Rs.10 per month by forging the thumb- impression mark of Nawab sweeper (deceased) on the payment vouchers.. The allegations against you prima facie disclose a case under sections 409, 467 and 477‑A of the P. P. C. against you as the offences were committed by you in your capacity of a public servant, in discharge of your official functions as such. Do you admit these allegations to be correct and thus plead guilty or would show cause and contest." The accused denied the allegations levelled against him and offered to show cause. The contention of the learned counsel for the appellant is that three different offences under sections 409, 467 and 477‑A, P. P. C. are alleged to have been committed in respect of each item of Rs. 10 and as such twelve distinct and separate offences have been tried together in contravention of section 233 of the Code of Criminal Procedure, and this has materially prejudiced the accused. Section 233 of the Code of Criminal Procedure provides :‑ "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". Therefore, unless the present case is covered by any of the sections mentioned in section 233, the trial of the accused for twelve offences enumerated above is clearly illegal. Sections 236 and 239 of the Code of Criminal Procedure have no application to the facts of this case, and therefore, need not be considered. Section 234 (1), Criminal P. C., is as follows :‑ "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." Mr. S. A. Mahmud conceded that the offences under sections 409, 467 and 477‑A, P. P. C. are not offences of the same kind as envisaged by section 234 of the Code of Criminal Procedure. He, however, contended that all the items in respect of which embezzlement is said to have been committed could have been lumped together by virtue of section 222 (2) of the Code of Criminal Procedure, and as such, it would have amounted to one offence under section 409, P. P. C. There cannot be any dispute about this proposition, but in the instant case, this was not done. In fact, the learned Special judge has convicted the accused on each count under section 409, P. P. C. But assuming for the sake of argument that the four items of Rs. 10 each for four different months could have been lumped together for the purposes of this trial, the prosecution is still faced with the obstacle that four offences under section 467 P. P. C. and four offences under section 477‑A, P. P. C. could not have been tried together with an offence under section 409, P. P. C., for these offences are not of the same kind as an offence under section 409, P. P. C. As laid down in clause (2) of section 234 A of the Code of Criminal Procedure, offences are of the same kind when they are punishable with the same amount of punishment under the same section of the Pakistan Penal Code or of any special or local law. Moreover, even if it be held that these offences are of the same kind, not more than three offences could have been tried together. It was, however, held by a Division Bench of the Bombay High Court in Emperor v. Manant K. Mehta (I L R 49 Bom. 892) that the offences of criminal breach of trust and falsification of accounts are not offences of the same kind within the meaning of section 234 of the Code of Criminal Procedure. The same view has been expressed by a Division Bench of the Calcutta High Court in Raman Behari Das v. Emperor (I L R 41 Cal, 722). A Division Bench of Dacca High Court has also held in Sailendra Prasad Base v. The Crown (P L D 1952 Dacca 81) that an offence under section 409 of the Penal Code is not an offence of the same kind as an offence under section 477‑A of the Penal Code. Mr. S. A. Mahmud then relied on subsection (1) of section 235 of the Code of Criminal Procedure and argued that all the twelve offences, in respect of which the accused has been tried, constituted one series of acts so connected together as to form the same transaction. Subsection (1) of section 235 of the Code of Criminal Procedure provides that an accused person may be charged with and tried at one trial for any number of offences which he is alleged to have committed in one series of acts so connected together as to form part of the same transaction. If these twelve offences were committed in the course of the same transaction, then the case will be governed by subsection (1) of section 235 of the Code of Criminal Procedure, and a single trial for any number of offences committed in the course of the same transaction will be legal irrespective of the fact that the offences are not of the same kind and are more than three in number and were committed within the space of twelve months from the first to the last of such offences. The question, therefore, which requires determina tion is whether the twelve offences for which the accused was tried constituted one series of acts so connected together as to form the same transaction. The expression "same transaction" has not been defined in the Code. It has, however, been judicially interpreted by the various High Courts. The question whether certain acts or series of acts constitute "same transaction" is in each case a question of fact and no comprehensive formula of universal application can be laid down. To ascertain whether such acts are parts of the same transaction, it would be essential to see whether; they are linked together to present a continuous whole. In' Emperor v. Sherufalli Allibhoy (I L R 27 Bom. 135), it was observed that the real and substantial test for determining whether several offences are connected together so as to form one transac tion "depends upon whether they are so related to one another in point of purpose, or as cause and effect, or as principal and subsidiary acts, as to constitute one continuous whole." In Shapurji Sorabji v. Emperor (I L R 60 Bom. 148) Broomfield, J. while dealing with this question made the following observations :‑ "It seems, therefore, that the main test must really be continuity of action. We have to consider what that expression means. It cannot mean, I think, merely doing the same thing or similar things continuously or repeatedly, for a recurring series of similar transactions is not, according to the ordinary use of language, the same transaction. Continuity of action in the context must, in my opinion, mean this : the following up of some initial act through all its consequences and incidents until the series of acts or group of connected acts comes to an end, either by attainment of the object or by being put an end to or abandoned. If any of those things happens and the whole process is begun over again, it is not the same transaction but a new one, in spite of the fact that the same general purpose may continue." The question whether the mere existence of a common purpose can itself be enough to convert a series of acts into one transaction came up for decision before the Madras High Court in Choragudi Venkatadri v. Emperor (I L R 33 Mad. 502) where Abdur Rahim J. observed as follows :‑ "As regards community of purpose I think it would be going too far to lay down that the mere existence of some general purpose or design such as making money at the expense of the public is sufficient to make all acts done with that object in view part of the same transaction. If that were so, the results would be startling; for instance, supposing it is alleged that A for the sake of gain has for the last ten years been committing a particular form of depredation on the public, viz. house‑breaking and theft, in accordance with one consistent systematic plan, it is hardly conceivable that he could be tried at one trial for all the burglaries which he committed within the ten years the purpose in view must be something particular and definite such as where a man with the object of misappropriating a particular sum of money or of cheating a particular individual of a certain amount falsifies books of account or forges a number of documents. In the present case not only is the common purpose alleged too general and vague but there cannot be said to be any continuity of action between one act of misappropria tion and another. Each act of misappropriation was a completed act in itself and the original design to make money was accomplished so far as the particular sum of money was concerned, when the misappropriation took place". In Kamlakant, Roy v. Emperor (1938 I L R 1 Cal. 98). it was held that there must be one continuous thread of a common purpose running through the acts to support a joinder of charges in respect thereof. In Hira Lal v. Emperor (I L R 18 Luck. 403) Agarwal J. laid down the following test :‑ "To ascertain whether a series of acts would form part of the same transaction, the most important point to be considered is whether there was a common purpose and design and continuity of action ?" In Amrita Lal Hazara v. Emperor (I L R 42 Cal. 957), it was observed that the circumstances which must bear on the determina tion of the question in each individual case whether certain acts constitute a single transaction are proximity of time, unity or proximity of place, continuity of action, community of purpose or design. In Ata Muhammad Khan AM and others v. The Crown (P L D 1950 Lah. 288), Muhammad Munir J., Chief Justice of the Lahore High Court (as he then was), after examining a number of authorities in this connection, observed as follows :‑ "An analysis of these cases would show that the offences, the question of whose being parts of the same transaction was involved in them, were related to each other by a causal connection, and such connection seems to be absolutely necessary if two offences are to be treated as having been committed in the course of the same transac tion. In such cases one offence may be the cause and the other the effect or one may be the occasion for the commission of the other. But while such causal con nection is a sine qua non for the constitution of a single transaction, the converse of the proposition need not necessarily be true, and though two facts may be connected together as cause and effect, they may nevertheless constitute two transactions a joint charge respecting which may be wholly inadmissible". This was a case in which the accused, Mr. Alvi, had dis honestly removed the goods in a truck from the Govern ment Dump, but before the goods had reached their destination the truck was intercepted in the way. Can the day following the capture of the truck, the accused had destroyed certain documents and had forged others in order to cover up the track of the offences committed by him earlier. Mr. Alvi went up in appeal before the Federal Court of Pakistan and re agitated this Point. Abdur Rashid C. J., while dealing with this question, observed as follows :‑ "The word 'transaction' as used in section 239 of the Code cannot be regarded as synonymous with the word offence'. The question whether several acts or events constitute‑ one transaction is a question of fact which has to be determined by reference to the evidence and circum stances of each particular case. No test of universal application can be laid down in this respect. Sometimes it may happen that several acts committed on various occasions at different places and thus distinct in respect of time and location may form one transaction on account of continuity of design and purpose which actuated those acts. In other cases, it might be that various acts which are committed at the same place at almost the same time may form different transaction. It is the continuity of design and purpose which determines whether various acts or events, constitute one transaction." After dealing with the facts of the case, he further observed:‑ "On the prosecution allegations the connection between the primary offence and the forgeries is so close and intimate as to render the carrying away of the excess material and the forging of the documents part and parcel of the same transaction." Applying the tests laid down in the aforesaid rulings to the facts of the present case, I feel no hesitation in holding that the offences committed under sections 409, 467 and 477‑A of the P. P. C., in respect of each item of Rs. 10, do constitute one series of acts so connected together so as to form the "same transaction" within the meaning of subsection (1) of section 235 of the Code of Criminal Pro cedure. The voucher was forged and false entry was made in the cash register, either to facilitate the commission of offence of embezzlement or to cover up that offence. It was held in Mangal Sen v. Emperor (A I R 1929 Lah. 843) that a charge of criminal breach of trust of a sum of money, can be tried together with the charge of falsification of accounts to conceal the act of misappropriation as both offences constitute parts of the same transaction. The same view was taken in Emperor v. Jagat Ram (A I R 1919 Lah. 440), Michael John v. Emperor (A I R 1931 Pat. 349), Emperor v. aliban Kristo Bagchi (I L R 40 Cal. 318), G. S. Ramsheshan v. Emperor (A I R 1935 Nag. 178) and Prafulla Chandra v. Emperor (A I R 1931 Cal. 8). But the question whether in the present case the twelve offences alleged to have been committed in respect of the four items, of Rs. 10 each, constituted one series of acts so connected together as to form the same transaction, is not free from difficulty. This question came up for decision in one form or the other before almost all the High Courts of pre‑partition India, and the High Courts of Calcutta, Bombay, Allahabad and Madras are unanimous in holding .that the trial of three charges of embezzlement together with the corresponding charges of falsification of accounts is illegal. These decisions are Queen Emprees v. Matilal Lahiri (I L R 26 Cal. 560), Raman Behari Das v. Emperor (I L R 41 Cal. 722), Emperor v. Mahant K. Mehta (ILR49Bom.892), Emperor v. Salim Ullah Khan (ILR32All.57), Emperor v. Sheo Saran Lal (I L R 32 All. 219), Emperor v. Shuja‑ud‑Din Ahmad (I L R 44 All. 540) and Kasi Visvanathan v. Emperor (I L R 30 Mad. 328). The contrary view was, however, taken by the Patna High Court in Michael John v. King Emperor (I L R 10 Pat. 463) and Ramkishan Prasad v. King Emperor (I L R 13 Pat. 170), and by the Oudh Chief Court in Debi Prasad v. Emperor (A I R 1944 Oudh 122). In G. S. Ramsheshan v. Emperor, Grille, J. C. exhaustively dealt with all the authorities in this connection and, dissenting from the view taken in Michael John v. Emperor affirmed the view that a number of distinct charges of falsification of accounts cannot be tried together with the charge of embezzle ment comprising the items to which the falsification relates at one trial. He also held that one item of falsification or one series of items concerned with one item of embezzlement alone might be tried and no more. In Shapurji Sorabji and another v. Emperor, a similar question arose before a Division Bench of the Bombay High Court. In that case, the accused had been convicted under sections 408, 409, 420, 467 and 471, I. P. C. The facts were that the accused were employees of the Aden Settlement Executive Committee which was constituted to supply water to the public on payment. Water tickets were printed and sold to the public through the accused who were required to deposit the money in the bank. The accused got 4100 books of water tickets privately printed as occasion arose and sold them to the public and misappropriated the amount thus received. Broomfield J., after discussing the case law on the subject, held that he did not find any connecting line in the various acts committed by the accused and ordered a retrial in accordance with law. This view was approved and followed in Ramchandra Rango v. Emperor (A I R 1939 Bom. 129). In this case, the accused had been tried upon various charges relating to embezzlement of funds of the Dharwar Bank Limited and fabrication of accounts and evidence. It was observed "Although several items of defalcations may be lumped together so as to obviate the difficulty arising under the provisions of the Code they would not necessarily constitute one transaction for obvious reasons. Each act may retain its homogeneity and may be completely separated from the rest, unless tinder special circumstances they could be entwined in one transaction." The nearest case which has any close bearing on the present case, so far as the facts are concerned, is Hugh Francis Bellgard and another v. Emperor (A I R 1941 Gal. 707). In this case, three separate charges of cheating punishable under section 420, I. P. C., three separate charges of forgeries punishable under section 467, I. P. C. and three separate charges of falsification of accounts punishable under section 477‑A, I. P. C. were framed against the appellant Bellgard, and similarly three charges were framed under section 420, three charges under section 467/149 and three charges under section 477‑A, I. P. C. against his co‑accused Nisir. The facts were that Bellgard was an Assistant Permanent Way Inspector in the service of Eastern Bengal Railway. It was his duty to maintain the permanent way in the proper state of repair and for this purpose he had under his control a number of gangs of workers. In August 1938, one of the railway bridges collapsed on account of heavy floods. To meet this emergency Bellgard applied to his superiors for sanction to employ additional gangs. These gangs were sanctioned for a month at a time for the months of July to December 1938. The pay‑sheets of these gangs were examined. The Railway Administration came to the conclusion that no additional gangs had been employed and that Bellgard, with the assistance of his co‑accused, had made false entries in the muster‑sheets to show as present, men who did not actually work in the gangs, and further induced certain men to receive pay of those whose names were entered in the pay‑sheets. After investigation the accused were sent up for trial and tried for the aforesaid charges in respect of the months of September, October and November 1938. It was held :‑ "If we examine the present charges in the light of these observations and remember that the sanction for the temporary gangs had to be obtained afresh each month and that if it had not been for further floods and further disasters ,occurring after the first sanction had been obtained, there would have been no occasion for the second sanction, it is ‑obvious that when the first false representation was made to the superior officers, the appellants could not have had in contemplation a further false representation in the following month, and that when the second one was made, they could not have had the third in contemplation. In other words, the second and third offences of cheating could not have been contemplated when the first was embarked upon. The constitution of the gangs changed from month to month, the fabrication of the three sets of documents must have been undertaken separately ; the three false representations must have been separate and distinct. In other words, there were three entirely separate transactions though the modus operandi was said to have been the same on each occasion. Unless, therefore, it was clearly alleged at the trial that the three transactions were carried out in furtherance of a general conspiracy to commit such offences, the joinder of all nine charges in one trial was not sanctioned by the provisions of section 235." In Debi Prasad v. Emperor (A I R 1944 Oudh 122), a Division Bench of the Oudh Chief Court, dealing with a similar question observed as follows :‑ "If the acts of criminal breach of trust by themselves cannot be regarded as connected, or if the acts of falsi fication by, themselves cannot be regarded as connected, then clearly there cannot be such connexion between the series of acts as a whole as to constitute one‑ transaction. But assuming such connexion between the acts of' criminal breach of trust on the one hand and the acts of falsification on the other as to constitute in law one offence in each case we see no difficulty in holding that all these acts constitute a series of acts so connected together as to form the same transaction, for the connexion between the falsification regarded as a whole and the criminal breach of trust regarded as a whole is, we think, obvious." It was further observed :‑ "there fraud of the same kind is alleged to have been perpetrated over a relatively short period ; where the same means, falsification of accounts in certain ways, are employed to facilitate or cover up the fraud, and where both the various acts of misappropriation and the various acts of falsification may legally be combined in one charge respectively we see no reason why it should not be held that all these acts constitute a series of acts so connected together as to form the same transaction." It will thus be clear from this review of the case‑law that the consensus of authority is decidedly in favour of the view that the trial of three charges of embezzlement together with the corresponding charges of , falsification of , accounts is illegal. There are, however, certain observations in Ramchandra Rango v. Emperor, Hugh Francis Bellgard and another v. Emperor and Debi Prasad v. Emperor, which have been quoted above and underlined which support the view that if the different acts of embezzlement are so entwined together or where circumstances exist to show that all such acts were so connected together, so as to form the same trans actions, then certainly a number of offences under section 409 can be tried together with the corresponding offences under sections 467 and 477‑A, P. P. C. The obser vations of the learned Chief Justice of the Federal Court of Pakistan in S. M. K. Alvi v. The Crown (P L D 1953 F C 189), referred to above, further support this view. I have very carefully considered this aspect of the case and I am of the opinion that if a group of acts are so connec ted together that community of purpose and continuity of action can be reasonably inferred from them, then even though the different items of money may have been embezzled on different dates and corresponding forgeries committed, accounts falsified either to facilitate the commission of offences of embezzlement or to cover them up, all such offences can be tried together irrespective of the number and nature of offences and the period during which they are committed. Section 234 of the Code of Criminal Procedure does not control the facts of such a case. They are fully governed by subsection 1(1) of section 235 of the Code of Criminal Procedure which is one of the exceptions to the general rule provided by section 233 of the Code of Criminal Procedure. In the instant case, I find that the accused when he took over as Range Officer was" apprised of the fact that Nawab Khan sweeper had died. He never informed the authorities about it, and never engaged any other sweeper in his place. The absence of the sweeper who had been appointed to work in his office must have been present to the mind of the accused from the very first day. His continuous absence thereafter must have been a constant reminder to the accused, but he never took any steps to remedy the wrong. It is, therefore, clear that he had conceived the idea of misappro priating his pay continuously from month to month by forging vouchers in his name and by making false entries in the cash book. If the accused and another person had conspired to mis appropriate the pay of the sweeper continuously and, in pursuance of that conspiracy, had misappropriated the pay for a number of months by forging vouchers and by falsification of accounts, I do not think it could have been urged that the series of acts did not constitute the same transaction for the purposes of a single trial under section 235 (1) of the Code of Criminal Procedure. In Babulal Choukhani v. The King Emperor (65 I A 158), their Lordships of the Privy Council, while dealing with section 239 (d) of the Code of Criminal Procedure, interpreted the expression "the same transaction" as follows :‑ "Whatever scope of connotation may be included in the words "the same transaction," it is enough for the present case .to say that if several persons conspire to commit offences, and commit overt acts in pursuance of the conspiracy (a circumstance which makes the act of one the act of each and all the conspirators), these acts committed in the course of the same transaction, which embraces the conspiracy and the acts done under it. The common concert and the agreement which constitute the conspiracy serve to unify the acts done in pursuance of it." In this case, Babulal Choukhani and Sailendra Nath Mukherjee were charged together with a number of other persons with being parties to a criminal conspiracy to commit theft of electric energy by a system involving tampering with consumers' meters. Choukhani was also charged with having committed theft of electric energy and Mukherjee with having abetted him in the commission of that offence. The question arose whether all these persons could have been tried together. It was held that in view of the accusations against all the persons that the offences had been committed in the course of the same transaction the trial was not bad. In Mukand Singh and others v. King Emperor (54 I A 45), the petition for special leave to appeal was dismissed without assigning any reasons, although the point in respect of mis joinder of charges was specifically raised on the ground that the petitioners and some others had been jointly tried upon charges of conspiracy and for having committed a number of offences include eight murders on different occasions in pursuance of that conspiracy. It is, therefore, clear that even if different offences are committed on different occasions in pursuance of a conspiracy then they are held to constitute the same transaction. Similarly, on the same principle, if instead of conspiring with another person the accused had by himself conceived of a scheme of misappropriating the monthly pay of the sweeper continuously and, in pursuance of that scheme, had misappro priated the pay for a number of months by forging vouchers and by making false entries in the cash book then I do not see how it would make any difference from a case in which offences are committed in pursuance of a conspiracy. In my opinion, the series of acts will be so connected together that they would form the same transaction within the meaning of section 235 (1) of the Code of Criminal Procedure. In the present case, it is true that there is no direct evidence that the accused had conceived of a scheme of misappropriating the pay continuously, but the circumstances of the case leave no room for doubt that the various offences were committed in pursuance of a scheme which he had conceived since he had taken over charge of the office. He had carried out a single scheme by successive acts. It is not a case of repetition of similar offences if and when an occasion arose. These offences are linked together with the thread of continuity running through them so as to present a continuous whole. The rulings which I have quoted above do not lay down that in no case embezzlements of various items on different dates could form a series of acts so connected together as to form the same transaction within the meaning of subsection (1) of section 235 of the Code of Criminal Procedure. A case is only au authority for what it actually decides. On the facts of those cases, it was held that the trial of various charges of embezzlement together with the corresponding charges of falsification of accounts was illegal as no connecting link was discernible in them. As I have already waited out, the question whether certain acts or series of acts constitute the same transaction is in each case a question of fact and shall have to be decided on its own merits. After giving my most anxious consideration to the facts of the present case, I hold that the twelve offences, for which the accused was tried, did constitute one series of acts so connected together as to form the same transaction. The connection is so close and intimate that no other inference is possible, and in this view of the matter, the objection as regards the misjoinder of charges is without any substance. I The rule laid down in section 235 (1) of the Code of Criminal Procedure, however, is not mandatory. It only makes it permissible to hold one trial for different offences committed in the course of the same transaction, but if the Court is satisfied that a single trial, though permissible, . will result in material prejudice or‑ embarrassment to the accused then the Court will surely split up the trial. In the present case, however, the learned counsel for the appellant has not been able to point out how the accused has been prejudiced. Even if he had been tried separately the same evidence would have been recorded in all the, cases in order to show the guilty mind of the accused and the same defence evidence would have been led. Far from being prejudiced the accused had been saved from the expense and inconvenience which he would have undergone had he been separately tried. In my opinion, the accused has not been prejudiced at all on account of a single trial for these offences. The objection that the accused has been materially prejudiced has no foundation whatsoever. The next point which has been vehemently urged by the learned counsel for the appellant is that the challan had been put in Court long before the sanction was given by the competent authority for the prosecution of the accused for offences under Actions 409, 467 and 477‑A, P. P. C. Section 5 (5) of the Criminal Law Amendment Act, 1949, as amended, provides as follows :‑ " Notwithstanding anything contained in the Code of Criminal Procedure or in any other law the previous sanction of the appropriate Government shall be required for any prosecution under this Act and such sanction shall be sufficient for the prosecution of a public servant, for an offence under this Act ". After investigation, the challan was put in the Court of the Special Judge on the, 1st of May 1954. The sanction Exh. P. W. 10/B was given by the Conservator of Forests, `Rawalpindi Circle, on the 10th of January 1955, which was placed on the file of the Special Judge on the 17th of January 1955. It, however, transpires from the record that during this interval the Special judge had not taken any action whatsoever on the challan and had kept it pending. It was only after the sanction had been received that he commenced the trial on the 22nd of February 1955. The contention of the learned counsel is that in order to safeguard the interest of the public servants it had been made a condition precedent that without the previous sanction of the appro priate Government a public servant cannot be prosecuted under the provisions of the Criminal Law Amendment Act, 1948. The bar is to the prosecution of the public servant under the Act unless previous sanction had been obtained for it. The question, therefore, is whether the filing of the challan in the Court amounted to prosecution under the Act. In my opinion, the answer to this question must be hi the negative. What is barred by section 5 (5) of the Criminal Law Amendment Act is not the submitting of the challan or the institution of the proceedings but the prose cution of the public servant under the provisions of the Criminal Law Amendment Act. Had the institution of the proceedings been barred as it was barred under section 270 of the Government of India Act, 1935, then the position would have been different. In my opinion, the prosecution does not compliance with the filing of the challan but it commences by the act of the Magistrate when he initiates proceedings under the provisions of the Criminal Law Amendment Act. The learned counsel for the appellant has not been able to show me any authority on this point in support of his contention. So far as the taking of cognizance of an offence under section 197 of the Code of Criminal Procedure is concerned, there is authority for the view that what is barred is not the filing of the complaint or the submitting of the challan, but the Act of the Magistrate in taking cognizance of the offence on such complaint or report. In similar circumstances as in the present case, it was held in Manzur Ali v. Emperor (A I R 1939 Lah. 1) and Arjan Singh v. Emperor (A I R 1939 Lah. 479) that if sanction for the prosecution of a public servant as required by section 197 of the Code of Criminal Procedure is placed on the record before the evidence is recorded, the trial is not vitiated. Rehmat Ali v. The Crown (Criminal Appeal. No. 48 of 1951 (Lahore)) decided on the 8th of November 1951, which is an unpublished judgment of the Lahore High Court, a Division Bench of that Court con sisting of Khurshid Zaman and Cornelius JJ., held that if sanction as required by section 6 of the Prevention of Corruption Act II of 1947, was placed on the file after the challan had been filed in Court, but before the evidence had been recorded by the Magistrate, the validity of the proceedings could not be questioned on the ground that the necessary sanction to prosecute the petitioner had not been previously obtained. The exact point which has been raised before me in respect of section 5 (5) of the Criminal Law Amendment Act also came up for decision before the Supreme Court in Malik Siraj Din v. The State (Criminal Appeal No. 44 of 1956 (S. C. Pak.)), which is also an unpublished judgment, in which their Lordships were pleased to observe as follows :‑ " The main contentions advanced by Mr. Brohi for the appellant before us were to the following effect. From the fact that the first sanction was exhibited and not the second it was clear that the trial proceeded on the basis of the first sanction which had become absolute and therefore the learned Judge was not justified in regarding the second sanction as the basis of the prosecution. If the second sanction had been exhibited objection might have been taken on the ground that the Deputy Com missioner had not applied his mind to the facts before giving the sanction. In any case, the Deputy Commissioner was not competent to dismiss the appellant. In our opinion, there is no force in these contentions. It is true that the second sanction was not marked as an exhibit but the observation of the learned Judge that the Special judge proceeded on the strength of that sanction is correct. The original record of the case discloses that the Special judge, when the case was trans ferred to him, returned the entire file for want of fresh sanction, and that he took cognizance only when the records were received back with the second sanction attached to the charge‑sheet ". In this case, by the time the charge‑sheet was filed before the Magistrate, the Criminal Law Amendment Act, 1953. under which cases of this kind became exclusively triable by a Special judge, had come into force. The Magistrate did not proceed with the case and it was transferred to the Special judge on the 30th of April 1954, who returned the papers for want of fresh sanction which, according to Criminal Law Amendment Act, 1953, had become necessary. Accord ingly another order of sanction was passed by the competent authority and that order was received with the records by the Special judge who then took cognizance of the case on the 20th of September 1954. The principle deducible from the authorities cited above is that if the Magistrate had not initiated any pro ceedings under the Criminal Law Amendment Act before the necessary sanction was placed before him the trial is riot vitiated for the bar is in respect of the prosecution under the Criminal Law Amendment Act and not in the filing of the challan. In my opinion; even if it was an irregularity, the same is curable under section 537 of the Code of Criminal Procedure, unless the accused was materially prejudiced. No such prejudice has been pointed out by, the learned counsel for the appellant and in fact the accused does not appear to have been prejudiced in any manner. The learned counsel for the appellant also contended that the sanctioning authority had not applied its mind to the facts of the case, and the sanction, having been given mechanically, cannot be deemed to be in accordance with law. The sanction is Exh. P. W, 10/B which shows on the face of it that the Conservator of Forests had accorded sanction after due consideration of the facts and circum stances of the case and after perusing the relevant records. To controvert this fact, Habib‑ul‑Hasan Khan, Prosecuting Inspector of Police (D. W. 2), was examined in defence on this point who stated that he had moved in the matter for obtaining the necessary sanction, but had not sent the exhibits of the case to the sanctioning authority. He, however, admitted that he had sent brief facts of the case and substance of the exhibits to the sanctioning authority. As such, it appears that the facts of the case were before the sanctioning authority when, after taking into consideration the facts and circumstances of the case, the was accorded. In my opinion, the appellant has to establish that the sanctioning authority had not applied its mind to the facts of the case before sanction ing the prosecution. 'The ruling Tufail Muhammad v. The Crown (P L D 1954 Lah. 37) is distinguishable from the facts of the present case, and is, therefore, inapplicable. Coming now to the merits of the case, it is established beyond doubt that Nawab Khan sweeper had died on the 25th of April 1950, vide copy of the death entry Exh. P. W. 5/A, which was made in the death register by Amir Husain Shah (P. W. 2) on the basis of an application Exh. P. W. 5/D filed by Kala P. W. The latter, who is the son‑in‑law of Nawab Khan sweeper, stated that Nawab Khan had died two and a half years before he made the statement, and that he had received Rs. 10, the arrears of Nawab's pay from one Shah. There is evidence for the prosecution which has not been disputed that except the entries P. B/1 in Exh. P. B. and P. C/1 in Exh. P. C. all the other entries in the vouchers Exhs. P. B., P. C., P. D. and P. E. are in the hand of the accused. Similarly, the entries Exhs. P. W. 1/D, P. W. 3/A, P. W. 3/B and P. W. 3/C in the cash book Exh. P. W. 7/1 are proved to be in the hand of the accused. In fact, the accused has admitted that he had made all these entries. Ghulam Husain, Forest Guard (P. W. 3), has stated that he made the entries P. B/1 in Exh. P. B. and P. C/1 in Exh. P. C. under the orders of the accused who used to disburse the pay. Both Ghulam Husain (P. W. 3) and Mahmud Ali Shah (P. W. 7) have stated that at the time of the taking over of the charge by the accused, the latter had been informed by them that Nawab Khan sweeper had died. Ten witnesses were examined in support of the prose cution case. The accused denied having committed the offences and pleaded that the case had been engineered against him by Ghulam Husain and Mahmud Ali Shah P. Ws. against whom he had made reports since he had assumed charge of the office. He admitted that all the relevant entries in the vouchers Exhs. P. B., P. C., P. D. and P. E. and in the cash register (Exh. P. W. 7/1) were in his hand, but he pleaded that the pay had been disbursed by Ghulam Husain P. W. and that he had made the entries in the vouchers and in the cash register on the authority of Ghulam Husain. He produced two witnesses in his defence. The evidence of D. W. 1 has already been considered above. S. N. Moin, Establishment Clerk of the Murree Hills Forest Division (D. W. 2), produced certain documents to establish that the accused had made reports against Ghulam Husain and Mahmud Ali Shah P. Ws. since he had assumed charge. In view of the admission by the accused as regards the relevant entries, the matter has been very much simpli fied. The sole question is whether the explanation offered by the accused in respect of these entries could, in the circumstances of the case, be true. It is significant to note that in all the four vouchers Exhs. P. B., P. C., P. D. and P. E. the verification about the thumb‑impression of Nawab is in the hand of the accused. He has also given a certificate in all these vouchers that he had disbursed the pay to Nawab. The corresponding entries in the cash register are also admitted to be in his hand. Ghulam Husain P. W. had denied that he had any thing to do with the disbursement of pay or that he had taken the thumb‑impressions on those vouchers. The accused has not produced any evidence that he had made all these entries at the instance of or because of the assu rance given by Ghulam Husain P. W. The explanation of the accused is false on the face of it. Assuming that the accused had made certain reports against Ghulam Husain and Mahmud Ali Shah P. Ws. that by itself does not make any difference in the case. The case for the prosecution rests entirely on the documentary evidence which cannot be challenged merely on the ground that Ghulam Hussain and Mahmud Ali Shah P. Ws. are inimical to the accused. It is difficult to believe that the accused could not have known about the absence of the sweeper. After all, he was an office sweeper. It is not the case of the accused that same sweeper had worked in the office during the months of June, July and August 1953. His only plea is that he had blindly prepared these documents at the instance of Ghulam Husain P. W. which plea, in the circumstances of the case, cannot be accepted. The learned counsel also urged that it is clear from the statements of Kala (P. W. 6), Iqbal (P. W. 7), and Tikka Khan (P. W. 9) that they had been paid their fines by the Babu, and, therefore, he maintained that the pre valent practice was that the pay was disbursed by the Babu. These witnesses have not stated that this was done in the absence of the officer concerned. It is likely that the Babu used to pay the amount and get the thumb impression in the presence of the officer concerned who then attested the thumb‑impression and gave the necessary certificate about the disbursement. I cannot believe for a moment that the accused whose duty it was to attest the thumb‑impression and to give a certificate that the pay had been disbursed by him, would be so negligent in the per formance of his duties that he would not even know that ; no sweeper had worked during the period for which payment was made Had the writing in respect of the thumb impression. been in the hand of someone else, there would have been some force in the argument that the accused had written the word " attested " on the assurance given by the Babu, but in the vouchers in dispute the entry " L. I. T. of Nawab Khan attested " in each voucher is in the hand of the accused. Besides the vouchers Exhs. P. D. and P. E. are entirely in the hand of the accused. This shows that the accused had a guilty conscience and wanted to conceal the fact even from the Babu, otherwise in routine 'he should have asked the Babu to fill in these vouchers as he did in the case of vouchers Exhs. P. B. and P. C. In the absence of vet, strong and cogent evidence which is not forthcoming in this case, the accused cannot shift the responsibility, of his misdeeds upon his subordinates merely because the writing P. B/1 in Exh. P. B. and P. C/1 in Exh. P. C. had been made by Ghulam Husain, Forest Guard I have no reason to doubt the statement of Ghulam Hussain P. W. on this point that these entries had been made by him under the orders of the accused, more so when the attestation of the thumb‑impression and the certifi cate of disbursement is in the hand of accused. After going through the entire evidence on the record, I am satisfied that the accused has been rightly convicted of the various offences committed by him in respect of the pay of the office sweeper for the months of June, July and August. 1953. The sentence awarded to him is by no means severe and I accordingly dismiss this appeal. He is on bail. He must immediately surrender to undergo the un -expired portion of his sentence, A.H. Appeal dismissed.