1984 PLP 1587 (MLD)

Fayyaz Ahmad for the State. Ch.Habib-ur-Rehman for the Complainant. Dates of hearing: 21st, 22nd February; 8th and 9th March, 1983. The convict-appellant Muhammad Aslam aged 51/52 years son of Sultan Bakhsh caste Jat, resident of Chak No. 202-R.B. Tehsil and District Faisalabad, was tried by the learned Magistrate Section 30, Faisalabad for the offences punishable under sections 419, 420, 406 and 468, P.P:C.

2. The learned trial Magistrate vide his judgment, dated 13-10-1982 convicted the appellant on all the aforementioned charges and sentenced him to two years' R.I. under section 419, P.P.C., to two years' R.I. under section 420, P.P.C., to two years, R.I. under section 406, P.P.C. and to five years' R.I. under section 468, P.P.C. , It was, however, directed that the sentences shall run concurrently. The learned trial Magistrate also imposed a fine of Rs.3 lacs on the appellant without specifying the offence or offences for which he was fined and it was directed that the fine would be recovered as arrears of land revenue and on realisation, it would be distributed among the affected land-owners whose money had been allegedly misappropriated by the appellant in proportion of their entitlement.

3. The appellant has challenged his conviction and sentence through the instant appeal. The F.I.R. account of the prosecution version as transpires from the statement Exh.P.A. of Ali Muhammad complainant on the basis of which formal F.I.R. was recorded at Police Station City Faisalabad on 8-8-1970, is that in the year 1965 M/s. Crescent Sugar Mills and Distillery Limited, Lyallpur (Faisalabad) applied for acquisition of 32 Acres, 3 Kanals and 17 Marlas of land belonging to different land-owners of Chak No. 202 R.B. Tehsil Faisalabad for their proposed hard-board manufacturing plant. Notification for acquisition of the land under section 4 of the Land Acquisition Act was issued by the Collector, Faisalabad on 10-9-1965. The proprietors of the mills deposited a sum of Rs.3 lacs as half of the cost of the land sought to be acquired in advance with the Land Acquisition Collector. The land-owners executed three general powers-of-attorney in favour of the appellant appointing him as their general attorney and thereby he was authorised to contest their case at all levels to get the compensation enhanced. The appellant received a sum of Rs.3 lacs, the compensation amount deposited in advance by the mills management on behalf of the land-owners and misappropriated the same. He fabricated receipts purporting to have been executed by the land-owners about the amount thus mis appropriated. He purchased land in Jhang District measuring about 4 Squares. He also purchased a house in Samanabad, Faisalabad and constructed second storey of his house in Chak No. 202 R.B. He failed to pay this amount to the land-owners despite their persistent demands and ultimately they got registered this case through Ali Muhammad one of the land-owners.

4. Besides formal witnesses, the prosecution examined Fazal, Muhammad Hussain, Gainda, Muhammad Rashid, Ghulam Nabi, Ali Muhammad, Ghulam, Muhammad Ramzan, Nawab Ali, Muhammad Munir, Muhammad Bibi, Azmat Bibi, Muhammad Afzal, Muhammad Hussain, Muhammad Suleman, Karim Bibi, Subedar Nazir Ahmad and Mst. Hamidan Bibi, wife of Suleman.

5. These P.Ws. stated that they received their respective cheques from the Land Acquisition Collector about the advance payment of compensation out of the sum of Rs.3 lacs deposited by the Crescent Mills Management, they entrusted these cheques to the appellant who deposited their cheques in his own account with his bankers and there after misappropriated the amount of these cheques. Mst. Hamidan Bibi in her cross-examination admitted that she never appeared in place of Hussain Bibi to receive cheque on her behalf.

6. The appellant did not plead guilty and claimed to be completely innocent. He contended that all the affected land-owners which included many persons other than aforementioned P.Ws. voluntarily appointed him as their attorney to prosecute their case for the enhancement of the amount of award. He urged that he contested the matter upto the level of the High Court. He engaged many renowned counsel for the purpose like Mr. Mehmood Ali Kasuri and on account of his efforts the amount of award was enhanced from Rs.9,000 per Acre to Rs.24,700 per Acre. He incurred large expenses from his own pocket. The land-owners had promised to pay the expenses to him but after receiving the compensation, they failed to do so in spite of his persistent demands. He was constrained to file a suit for rendition of accounts against them. In January, 1970, the complainant party filed an application under section 34 of the Arbitration Act and subsequently submitted an application to Martial Law Authorities containing false allegation of misappropriation of the amount against him resulting in registration of e criminal case giving rise to the judgment appealed against. He further claimed that the case was investigated by different Investigating Officers. Most of them found him to be innocent. In fact, he had paid the money to the land-owners. In fact, the land-owners after receiving the cheques from the Land Acquisition Collector voluntarily deposited their cheques in his account as they were cross-cheques and the land-owners having no bank accounts of their own could receive the amount of the cheques only through the banks. The appellant, However, subsequently paid the amount of the cheques to all the land-owners after receiving the same from his bank. He examined D.W. 1 Ghulam Haider, D.W.2 Ch. Sultan Ali Advocate, D.W.3 Muhammad Din, D.W.4 Tufail Muhammad, D.W.5 Muhammad Akram, D.W.6 Muhammad Ali and D.W.7 Muhammad Yahya petition-writer. He also produced a large number of receipts and other documents in his defence. It has been noticed that the learned trial Magistrate on 5th of April, 1976 appended his signature on a blank charge-sheet form. Subsequently, his successor, of course, again charged the appellant for the offences punishable under sections 467, 468, 471, 420 and 406, P.P.C. The second charge-sheet has been duly filled in. The witnesses who were examined prior to the framing of the charge on the first occasion through the blank charge-shed were again examined after the preparation of this duly completed second charge- sheet. It is, however, noteworthy that the appellant has been accused of having cheated different land-owners by obtaining their cheques and subsequently by not paying the amount of their cheques to them. He is also alleged to have fabricated the receipts, etc., in regard to different land-owners and is charged to have misappropriated the amount entrusted to him by different land-owners. He has, however, been tried for these different offences relating to different persons at one trial. According to section 233, Cr.P.C., a person accused of distinct offences is required to be charged separately for every distinct offence and every such charge is required to be tried separately except in cases mentioned in sections 234, 235, 236 and 239, Cr.P.C. Section 234 ibid provides that 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, and number of them not exceeding three. Section 235, Cr P.C. has no relevancy because it pertains to the circumstances when in one series of facts so connected together as to form the sane transaction, more offences than one are committed by the same person, he may be charged with and tried at one trial for every such offence. Section 236, Cr.P.C. pertains to a situation where it is doubtful as to what offence has been committed. Section 239, Cr.P.C. takes care of the situation when more than one person may be charged and tried together. Section 222(2) (ibid), however, provides that when the accused is charged with criminal breach of trust or dishonest misappropriation of money it would be sufficient to specify the gross sum in respect of which the offence is alleged to have been committed and the dates between which the offence is alleged to have been committed without specifying particular items or exact dates and the charge so framed would be deemed to be a charge of one offence within the meaning of section 234 (ibid).

7. In the circumstances of the present case, the appellant has been tried and convicted for offences punishable under sections 419, 420, 468 and 406, P.P.C. The offences alleged to have been committed by him relate to different persons. He is charged to have committed all these offences on one single date i.e., 19-7-1968. In Feroze Hussain Shah v. The State 1978 P Cr. L J 84 it was held by this Court that criminal breach of trust in respect of 90 and 147 items of defalcation lumped up in two challans could not be legally tried as only three items can be tried jointly and the trial suffered from an irregularity occasioning miscarriage of justice, not curable under section 537, Cr.P.C. In Nooruddin v. The State 1974 P Cr. L J Note 125, 79, it was ruled that only three and not five offences of breach of trust could be tried. at one trial if committed within twelve months. In Malik Murid Sadiq v. The State 1968 P Cr. L J 657 it was found by this Court that accused who was alleged to have misappropriated the 'amount not within one year but within three years could not be tried at one trial. His conviction and sentence as a result of such one trial was thus set aside. In Ghulam Rasool v. The State P L D 1965 Kar. 189, the accused allegedly received different amounts from different persons for the purpose of obtaining gun licence for each of them. He was tried for criminal breach of trust and it was found that misappropriation could not be said to have been committed in course of same transaction albeit all persons might have paid money to accused on same day for same purpose. It was further held that a joint trial was illegal and the defect was not curable under section 537, Cr.P.C. This authority is fully applicable to the circumstances of the present case in which the appellant is alleged to have cheated various land-owners of his village and is further alleged to have misappropriated their money which each of them entrusted to him. On behalf of the complainant, reliance has been placed on Kashi Ram v. Hurdut Rai A I R 1935 Cal. 312 wherein it was ruled that offence of misappropriation in respect of several items may be joined with charge of falsification which is one of series of acts. This authority is distinguishable on facts inasmuch as in the present case the appellant had been tried and convicted for different offences like cheating, forgery and misappropriation which he allegedly committed in respect of different persons. Ali Hussain v. Emperor AIR 1933 Cal. 308 has also been cited on behalf of the complainant which too has no relevancy to the facts of this case. In A.S.M. Faruq v. The State P L D 1971 Dacca 56, it was observed that subsection (2) of section 222, Cr.P.C. was enabling provision which should be availed of by the prosecution. Noor Khan v. The State P L D 1958 Lah. 1052 has also been relied upon by the complainant. This authority explains the expression "same transaction" as occurring in section 235, Cr.P.C. The point in issue in the present case is, however, different and thus this authority is not much relevant.

8. In view of the circumstances of this case as analysed with reference to the aforementioned judicial pronouncements it is concluded that the trial of the appellant resulting in his impugned conviction and sentence is illegal as he has been tried at one trial for different offences in respect of different persons. This illegality is certainly not curable under section 537, Cr.P.C.

9. In view of the above conclusion, ordinarily I would have remanded the case to the learned trial Court for retrial of the appellant in accordance with law but such a course of action does not appear to be appropriate and sound in the peculiar circumstances of this case. The offences were allegedly committed by the appellant in 1968 while the case against him was registered pursuant to direction by Martial Law Authorities in the middle of the year 1970 and that too after he filed a suit against the complainant and P.Ws. for rendition of accounts before the Civil Court. Dr. Muhammad Asghar P.W. 17/23, a witness produced by .the prosecution itself has deposed that in fact the dispute between the appellant and the complainant and the P.Ws. was of civil nature. This witness and Ch. Taj Muhammad an Additional District and Sessions Judge were appointed by the parties as arbitrators but in two/three meetings the parties could not come to terms and, thereafter, these two arbitrators on account of their other engagements expressed their inability to continue as arbitrators any more. According to him, the claim of the appellant was that he had incurred large expenses in connection with land acquisition award. The other party was not prepared to pay this amount to him. This witness has not been declared hostile by the prosecution. After the final hearing of the arguments in this case, the learned counsel for the complainant submitted a miscellaneous application wherein it was contended that Dr. Muhammad Asghar happened to be the uncle of the accused and that the plea of dispute of rendition of accounts as suggested by him and his testimony had no relevancy to the prosecution case. The contentions contained in this miscellaneous application are devoid of any merit inasmuch as Dr. Muhammad Asghar had been produced twice by the prosecution as P.W. He has not been declared hostile and it is also the plea of the appellant that in fact, large amount on account of litigation expenses ways payable to him by the complainant party and when he ultimately filed suit for rendition of accounts against them they as a counterblast got registered a criminal case against him. It is also on record as has been deposed by weed Ahmad Shah Administrator, Crescent Sugar Mills, Faisalabad, that originally the compensation of 32 Acres 3 Kanals and 17 Marlas of land acquired by the Crescent Sugar Mills was estimated to be Rs.3 lacs. Subsequently, the matter for enhancement in the compensation went upto the High Court and the Civil Court increased the compensation to Rs.8,98,506.70. This deposition by a witness produced by the prosecution supports the appellant's contention that he in his capacity as general attorney of the affected land-owners of his village contested the case for enhancement of compensation upto the level of the High Court and incurred huge expenses.

10. In view of the aforementioned circumstances even on merits, the prosecution case is not fully established. The defence version appears to be quite probable and natural. It cannot, therefore, be held that the guilt has been brought home to the appellant beyond reasonable doubt.

11. In this view of the matter, I accept the appeal, set aside the conviction and sentence of the appellant and acquit him. He shall be set at liberty forthwith if not required to be detained in any other case. M. Y. H. Appeal allowed.