P L D 1962 (W (PLP)

The appellant pleaded not guilty to these accusations and claimed to be tried.

4. Mr. Tufailali A. Rehman appearing on behalf of the appellant has contended that there has been misjoinder of charges in this case. His argument, briefly put, is that the exceptions to section 233, Cr. P. C. which provides for a separate charge and a separate trial for each distinct offence must be considered individually and the law does not permit these exceptions to be considered cumulatively. In other words, each of these exceptions to section 233, Cr. P. C. must be considered exclusively of the other and they cannot be lumped together or considered cumulatively so as to create further exceptions. Thus, in the charge in this case there are two offences of the same kind mentioned in paragraphs 1 and 2 and a third offence of different kind mentioned in paragraph

3. Mr. Tufailali argued that the offences mentioned in paras 1 and 2 being of the same kind may be tried together by virtue of section 234, Cr. P. C. but the offence in the third paragraph being an offence of different kind cannot at the same trial be tried along with the offences mentioned in paras 1 and

2. Therefore so far as section 234, Cr. P. C. is concerned there has been a misjoinder in respect of the charge mentioned in para

3. With regard to the exception contained in section 235, Cr. P. C. Mr. Tufailali argued that the three offences mentioned in the charge were not committed in the same transaction but in different transactions and hence this exception to section 235 had no application to the facts of this case. In any event Mr. Tufail argued that the two sections 234 and 235 cannot be considered together and cumulatively for the purpose of legalising the charge framed in this case.

5. Much case‑law was referred to in support of these arguments, and it is necessary in this judgment for me to consider the important cases cited before me. The first was a case reported in D. K. Chandra v. The State (AIR 1452 Bom. 177). In this case the accused was charged under section 409 for criminal breach of trust committed in respect of a sum of Rs. 2,500 on 12‑4‑49 and in the alternative was charged under section 420 for having cheated in respect of the same sum on the same day. He was also charged in the same charge under section 409 with having committed criminal breach of trust in respect of a sum of Rs. 900 on 20‑4‑49 and in the alternative was charged with having cheated in respect of the same sum of the same day. The question for consideration therefore was whether the joinder of these four charges at one trial was in accordance with law. A Full Bench of the Bombay High Court presided over by Chagla, C. J., held that the joinder of the four charges did not fall within any of the three exceptions laid down in section 233, Cr. P. C. and therefore was contrary to law. Although the accused was charged with having committed only two acts, in respect of those two acts he was charged with having committed 4 offences, not of the same kind and therefore there was a clear con travention of section 234 (1), Cr. P. C. The two cases in respect of which the charges were framed being separate and distinct, the joinder was also not justified under section 235 (1), Cr. P. C. In his judgment Chagla, C. J. used these words:‑ "It is a well‑known canon of construction that exceptions must be strictly construed, and unless the prosecution satisfies the Court that the exception has been strictly complied with, the joinder of charges in a trial must be held to be contrary to law. It may be possible in a con ceivable case for the prosecution to establish that a case falls under more than one exception. But if it falls under more than one exception it must so fall that it must not infringe the provisions of any of the three sections. It is not permissible for the prosecution to combine and supple ment the three sections in such a manner as to contravene the provisions of any of these three sections." Now, applying this test to the facts of the present case, I find that the charge in paras. 1 and 2 contains two offences of the same kind within the meaning of section 234 (1), Cr. P. C. but which are not parts of the same transaction within the meaning of section 235 (1), Cr. P. C. The offence mentioned in para. 3 of the charge is an offence of a different kind which could only be tried along with the first two offences if advantage is taken of the exception contained in section 235 (1), Cr. P. C. In order to uphold the validity of this charge, then, reliance, has to be placed on both section 234 (1) and section 235 (1): but this, in law, is not permissible and therefore on the basis of this Full Bench ruling of the Bombay High Court, the charge In this case must be held to be defective.

6. The view taken by the Bombay High Court in its Full Bench case is in conformity with the view of the Calcutta High Court reported In H. F. Bellgard v. Emperor (I L R (1941) 2 Cal. 319). It was there held that the provisions of sections 234 and 235 of the Code cannot be utilised to permit the joinder of all charges arising out of 3 transactions of the same kind carried out within a year. There fore if there is more than one transaction it is not open to combine sections 234 and 235 and to charge an accused with more than 3 offences which are disconnected. The same view was also taken by the Madras High Court in a case reported in 30 Mad. 328, where it was held that three distinct acts of criminal breach of trust and three acts of falsification cannot be tried together because section 234 would not apply as they are not offences of the same kind and section 235 would not apply because the several offences could not be said to form part of the same transaction. The Nagpur High Court in a case reported in A I R 1935 Nag. 178, also held that three charges of embezzlement and three correspond ing charges of falsification cannot be tried together because one of each may form one transaction under section 235 (1) but all six cannot form part of one transaction. The Saurashtra High Court in a case reported in A I R 1955 Saurashtra 77 is also of the same view and has gone on to say that it would be enlarging the scope of the sections mentioned in section 233 to hold that a joint trial would be permissible In any case where the joinder is justified by these sections singly but also In cases which partly satisfy the conditions of one section and partly of another. The exceptions contained in sections 234 to 236 and section 239 are mutually exclusive and it Is not permissible for the prosecution to cull out some conditions from one section and some from another but it is necessary that all the conditions of one or the other excep tions should be satisfied.

7. The Allahabad High Court in a case reported in A I R 1954 All. 501 has adopted the same view and has held that sections 234 and 235 cannot be applied simultaneously as these two provisions are mutually exclusive. Reference was made to a previous case of the Allahabad High Court reported in A I R 1929 All. 202 where it was held that the provisions of sections 234 and 235, Cr. P. C., are mutually exclusive. However in two other cases of the Allahabad High Court reported in A I R 1950 All. 167 and in A I R 1953 All. 228 the contrary view has been taken. Strangely, A I R 1953 All. 228 was not considered in the latter case reported in A I R 1954 All.

401. But the case reported in A I R 1950 All. 167 has been considered in the 1954 case and distinguished on the ground that the remarks contained in that case were obiter for the purpose of that case. The Patna High Court in two cases reported in 13 Pat. 170 and A I R 1942 Pat. 401 has also taken the view that the four exceptions to section 233, Cr. P. C. are not mutually exclusive and may be considered together. It is pointed out that section 234 permits three offences of the same kind committed within the space of 12 months to be tried at one trial : a valid trial of charges as to 3 offences having thus been constituted, section 235 comes in to provide that all offences committed by the same person in the series of acts so connected together as to form the same transaction with any one of these three offences can be tried with that offence. This view of the Patna High Court as first expressed in the case reported in 13 Pat. 170 did not commend itself to the Full Bench of the Bombay High Court in A I R 1952 Bom. 177 or to the Division Bench of the Allahabad High Court in a case reported in A 1 R 1954 All. 501.

8. The view taken by the predecessor of this High Court appears to be in consonance with the view of the Full Bench of the Bombay High Court. In A I R 1917 Sind 40 it was pointed out that section 234 refers to offences and not to transactions. The expression "same transaction" in section 235, Cr. P. C. is not applicable to cases in which the offences are separated by distinct intervals of time or place and which require to be proved by distinct evidence. In this case the appellant was charged at one trial with four offences namely of having abetted an unknown person to affix a false thumb‑impression purporting it to be of someone else on a summons issued by a Civil Court and of swearing a false affidavit in the course of such service on different days. It was held that the offences being more than three and being neither of the same kind nor committed in the course of the same transaction there was a misjoinder of charges in contravention of the provisions of sections 234 and 235, Cr. P. C. and that consequently the proceedings were illegal and should be quashed. In A I R 1932 Sind 234 it was held that the offence of embezzle ment and falsification of accounts are not offences of the same kind within the meaning of section 234 : nor are three different acts of embezzlement and falsification of accounts committed at different times so connected as to form part of the same transac tion within the meaning of section

235. In A I R 1937 Sind 1 it was held that 3 charges of criminal breach of trust and 3 charges of falsification of accounts cannot be combined together at one trial under sections 234 and 235, Cr. P. C. though one charge of each may under section 235 be tried together but not two or three of each. In I L R 1949 Kar. 30 the accused a tapedar was charged under section 477 (a), P. P. C. with intent to falsify the record of 6 delis in his tapo consisting of field books, number shumari books acid jamabandi books, by making false entries therein with the object of showing less cultivation and in the alternative under section 218 with having framed records in an incorrect manner, it was held that the charge framed offended against section 233, Cr. P. C., as the making of each of the alleged false entries was a separate offence. The Bench composed by Tyabji, C. J. and Mehar, J., held that it was impossible to regard distinct offences under section 477 (a) in respect of entries made regarding different lands in different dehs at different times as parts of the same transactions.

9. Reference was also made at the Bar to three cases decided by this High Court and reported in P L D 1957 Kar. 814, P L D 1957 Lah. 290 and P L D 1958 Lah. 1052. In P L D 1957 Lah. 290 Changez, J., took the view that the appellant who was a forest range officer and had committed criminal breach of trust in respect of the pay of the sweeper of his office consecutively for four months, forging vouchers and making false entries in the cash book on different occasions being liable to punishment under sections 409, 467 and 477 (a), P. P. C. on each of the four occasions could be tried at one trial in respect of all these offences because there was a thread of continuity running through the four acts of defalcation. The 12 offences and 3 of each or the four occasions could therefore be tried together. Changez, J., went on to state that "it is very 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 mis appropriating the monthly pay of the sweeper continuously and, in pursuance of that scheme, had misappropriated 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 pur suance of a conspiracy." This view, however, was not accepted by Lari, J. in P L D 1957 Kar. 814 where while agreeing with the view that offences committed in pursuance of a conspiracy may be said to have been committed in the course of the same trans action, Lari, J., went on to point out that the extension of this principle to a mere intent, was, to his mind, an unjustified extension of the principles laid down by the Privy Council in the cases cited by the learned Judge. Considering the facts of the present case it is unnecessary for me to enter into this discussion, as to whether the extension of the principle of conspiracy to a mere intent on the part of one person to commit the act again and again is or is not justified. In the Lahore case the Forest Ranger mis appropriated the pay of the same sweeper for four consecutive months but in the instant case it is the land of different people that is alleged to have been transferred by the appellant on one occasion to his father and on another to his brother. Thus the facts of the Lahore case do not appear to be on all four with the facts of the instant case. In P L D 1958 Lah. 1052, Ortcheson, J., considered the precise meaning to be given to the expression "same transaction" and while not referring to either of these above two cases he repeated the old test for determining whether several offences are so connected as to form one transaction namely whether the offences 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 action. Applying this test to the facts of the present case, I am not satisfied that the three offences can be said to form part of the same transaction within the meaning of section 235 (1), Cr. P. C.

10. Mr. Halim appearing on behalf of the A. A. G., relies on the 2 cases of the Patna High Court discussed above and reported in 13 Pat. 170 and 42 Pat.

401. He also relies upon the cases of the Allahabad High Court reported in A I R 1950 All. 167 and in A I R 1953 All.

228. Finally he said that he relies on the judgment of Changez, J., in. P L D 1957 Lah. 290 and on Ortcheson, J., in P L D 1958 Lah. 1052. The two cases of the Patna High Court and the case reported in A I R 1950 All. 167 had been fully dealt with in A I R 1954 All. 501 and in 1952 Bom.

177. Having carefully considered the point myself, I am of opinion that the exceptions to section 233 are distinct and cannot be lumped together or considered cumulatively. In this view I must hold that the charge in this case inasmuch as it relies for E its sustenance on the application of 2 exceptions namely section 234 and section 235 to be considered together must be held to be a bad charge suffering from the defect of misjoinder. As such, it vitiates the conviction in this case which must therefore be set aside.

11. The question now remains whether a retrial should be ordered in this case. In order to answer this question it is necessary to enter upon the facts of this case and to consider the prosecution evidence available on the record. The first prosecu tion witness examined in this case is Ahmed Shah son of Umedali Shah, a retired supervising Tapedar. He is the main witness for the prosecution in this case and hence it is necessary to examine his evidence with care. He deposes that he had been a supervising Tapedar for about 7 years at Mehar since 1947: that the appellant had worked with him as a Tapedar in 52‑53 and thus he is familiar with the appellant's hand‑writing. He produced the village form VII‑B of Tapo Pateji Deh Khoti Khokhar Taluka Mehar and showed entry No. 160 dated 28‑7‑33 according to which Nandiram P. W. 2 had sold 8 survey Nos. to Mohammad Moosa the brother of the appellant. This is Exh.

5. He has also produced as Exh. 6 entry No. 156 dated 1‑6‑33 according to which some Hindus by name Mewomal and others had sold two survey numbers to Dodo father of the appellant. On the all important question as to who was responsible for these entries and who had made them, his answer was "I think the entries are in the hand‑writing of the accused". This witness then proceeded to give his reasons for stating that the above two entries are false and bogus and I find that the 7 paragraphs from his deposition on this point have been reproduced verbatim by 1hp learned Special Judge, Dadu in his judgment in this case. In my view, it is not necessary to examine these reasons because as argued by Mr. Tufail, even if we were to accept these reasons and hold that there has been tampering with the record, the all important question still remains as to who is responsible for this tampering and what evidence is there to prove that it is the appellant who has done this tampering. Mr. Tufail argued that merely because the beneficiaries of this fraud or tampering with the record are the brother and the father of this appellant, this circumstance may throw suspicion upon the appellant but that is not the same as proof. Supposing the appellant had a brother who was also a Tapedar in Dadu District, then how could one know which of the two brothers is responsible for this tampering ? To me it appears that the only and safest method of connecting the appellant with this tampering of the record is to prove that the hand‑writing of Exh. 5 and Exh. 6 is his hand‑writing. Admittedly, no hand‑writing expert has been examined on this point. The only evidence available on this record is that of P. W. 1 Ahmed Shah under whom the appellant worked as a Tapedar some 8 years ago and who says that he "thinks" the entries are in the hand‑writing of the appellant. In cross‑examination this P. W. 1 admitted that the appellant had never remained incharge of Tapo Pateji and he (witness) could not say whether the appellant served in Mehar in 52‑

53. It has been held in a number of reported cases that suspicion is one thing and proof another. The evidence P. W. 1 may cast suspicion upon the appellant but I cannot hold that it conclusively establishes that the appellant is responsible for the tampering of the record in this case.

12. The next witness for the prosecution is Nandiram son of Hiranand P. W. 2 the Hindu owner of the 8 survey numbers in Deh Khoti Khokhar Tapo Pateji Taluka Mehar transferred to Moosa. He says that he had never sold this land to Moosa, Dodo or the appellant at any time nor had he given any statement to that effect before any revenue authority. He himself has been declared a non‑evacuee and he has enjoyed the produce of this land since 1936. In his evidence he has said nothing against this appellant so that his evidence is of no value to the prosecution so far as the case against this appellant is concerned. P. W. 3 Abdul Samad, Head Clerk of Nawabshah was in 1954 personal clerk to the Mukhtiarkar of Mehar at which time the appellant was serving as Tapedar of Tapo Ghongo. His evidence is that the appellant had approached him and had asked him to sign some papers contain ing some statements as comparing clerk and even offered him money for this purpose but he refused to oblige. On the all important point as to the nature of these statements and what they contained or what they were about, all that this witness can say is that these statements pertained to the years 44‑

45. This witness also refers to Muhammad Anwar P. W. 6 the then clerk in the Taluka office Mehar and states that the appellant approa ched Muhammad Anwar for the same purpose but he does not know what happened thereafter. Muhammad Anwar P. W. 6 states that in 1954 when he was a clerk in the taluka office at Mehar the appellant who was then Tapedar of Tapo Ghorgo sought his assistance in signing false copies as having been compared and prepared in 1945 to which he did not agree. Like P. W. 3 Abdul Samad this witness Muhammad Anwar also throws no light on the papers in question or as to their contents.

13. P. W. 4 is Ilahibux son of Muhammad Bux the com plainant in this case who has filed a direct complaint in the Court of the Special Judge, Dadu Exh. 34 in this case. He has no direct evidence to give and apparently the only reason for which .he has been examined was to correct a mistake occurring in the complaint filed by him. He states that "in the complaint through mistake I have shown that the accused was a Tapedar of Tapo Pateji in the year 52‑53: but in fact he was a Tapedar in Taluka Mehar and was living with Tapedar Pateji in the same Otak". The appellant in his statement under section 342 has produced his service book showing that in 52‑53 he was never in Mehar Taluka. In this respect, it is interesting to note how the pro secution has been altering its case against the appellant. Originally the accusation against the appellant was that he was a Tapedar of Pateji in the year 1952‑

53. This was then altered to alleging that he was tapedar in Taluka Mehar at this time though residing in the same Otak with the Tapedar of Pateji. Strangely, this Tapedar of Pateji who served as host of the appellant has not been examined in this case and thus there is nothing on record except the bare statement of P. W. 4 to prove that the appellant was living in 52‑53 with the Tapedar of Pateji in the same Otak. P. W.

5. Ghulam Ali is a retired Head Munshi who was shown the documents Exhs. 27‑A to E in order to identify his signatures thereon but, owing to his weak eye‑sight, he was unable to do so. He however added in his deposition in Court that these very documents were shown to him some 3 years earlier during the investigation and then also he had said that because of his weak eye‑sight he could not identify the signa ture on these documents. It may be mentioned here that Exhs. 27-A to are photostatic certified copies of the original statements of Nandiram P. W. 2 and the other Hindus concerned admitting the sale of their lands to Moosa and Dodo and adding that they had no objection to the necessary mutation being made in the khata. It is the case of the appellant that it was on the strength of these statements that the necessary mutations were made.

14. The appellant was questioned under section 342 when he stated that he had never remained Tapejar of Tapo Pateji and that in 1952 he was never a Tapedar in Taluka Mehar. He produced his service book in support of these statements. He denied that the entries Exhs. 5 and 6 were either forged by him or got forged by him. He relied upon the written statement submitted by him to the Mukhtiarkar which is Exh. 26 in this case. He examined one defence witness a stamp‑vendor to prove that Dodo Khan had purchased some stamps from him in March 1945 and had affixed them to four statements similar to the statements Exh. 27‑A to E. But the evidence of this defence witness is not of much importance and was not referred to in the documents at the Bar during the hearing of this appeal.

15. In the light of the prosecution evidence as outlined above. I am of opinion that this is not a case in which a retrial should be ordered. In my view the prosecution evidence, such as it is, can at the most point the finger of suspicion against the appellant but that is not the same thing as establishing and proving the prosecution case against the appellant. Besides, much time has elapsed since the hearing of this case in the Court of the Special Judge, Dadu so that if a retrial were to take place now it is extremely doubtful whether the prosecution would get even as far as that they have done in the last trial.

16. In these circumstances, therefore, the appeal is allowed, the conviction and sentence set aside and the bail‑bonds, if any, of the appellant cancelled. Criminal Reference No. 158/60 stands dismissed, and the notice of enhancement of sentence issued by this Court is hereby discharged. K. M. A. Appeal accepted.