P L D 1965 (W (PLP)

2. The principal contention of the learned Advocate for the appellant was that there was a mis-joinder of charges in this case and, therefore, the whole trial is vitiated. It may, therefore, be convenient to reproduce the charges upon which the appellant was tried: "That you on or about the 21st December 1953, at Larkana forged the signatures of Mr. Madadali the then Additional District Magistrate, Larkana on the gun and revolver licences belonging to the complainant Ghulam Rasool and other witnesses Ghulamullah, Ghulam Hyder, Saleem Bux and others intending that it shall be used for the purpose of cheating and thereby committed an offence punishable under section 468, P. P. C. and within the cognizance of Sessions Court, Larkana. You are further charged that on the aforesaid time and place you counterfeited the seal of A. D. M. intending that the same shall be used for the purpose of committing forgery and made impression of such seal on said licences knowing the same to be counterfeited and then thereby committed an offence punishable under section 472 of the Pakistan Penal Code and within the cognizance of Sessions Court of Larkana. You are also charged that on the aforesaid time and place you were entrusted with Rs. 7‑8 by complainant Ghulam Rasool, Rs. 7 by P. W. Saleem Bux, Rs. 7 by P. W. Ghulamullah and Rs. 20 by P. W. Ghulam Hyder, as renewal licence fees for depositing it in the Government Treasury and committed criminal breach of trust in respect of the said money, thereby committed an offence punishable under section 406, P. P. C. and within the cognizance of Sessions Court of Larkana. And I hereby direct that you be tried by this Court on the aforesaid charge. (Sd.) A. H. Kureishy, Additional Sessions Judge, Larkana." It would be noticed that in the first charge the appellant has been accused of forging the signature of the A. D. M. Mr. Madadali Nizamani on the gun and the revolver licences of Ghulam Rasool, Ghulamullah, Ghulam Hyder, Saleem Bux and `others'. On the second charge he has been accused of using a counterfeit seal of the A. D. M. on the aforesaid forged licences. On the third charge he has been accused of committing the breach of trust with respect to the sum of Rs. 7‑50 of Ghulam Rasool P. W. 4, Rs. 7 of Salim Bux P. W. 6, Rs. 7 of Ghulamullah P. W. 7 and Rs. 20 of Ghulam Hyder P. W.

5. These amounts had been entrusted to the accused for the purpose of paying the charges and bearing the expenses in the obtaining of the licence.

3. Now, it appears to me to be plain that the misappropria?tion in respect of each of the aforesaid four items would be a distinct offence in each case. Three of them, however, could be tried jointly under the exception to section 233, Cr. P. C. as contained in section 234, Cr. P. C. This provides for the trial of three offences of the same kind committed within the space of 12 months at one trial. Therefore, if the present trial had merely been upon a charge of section 406 even then this trial would be bad because more than three offences had been joined together. But the matter does not rest there. There are two more charges, one of forging the respective licences of these witnesses named above and the other of using the counterfeit seal on these different licences. All these charges have been lumped together. The contention of Mr. Murtaza Hussain, the learned Advocate appearing for the State, was that all these charges in respect of all these distinct offences could be tried together in view of section 235 (1), Cr. P. C. This subsection reads as follows:‑-- "235 (1) If, in one series of acts so connected together as to form the same 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." Mr. Murtuza attempted to argue that in so far as all these four persons had paid money to the accused on the same day for the same purpose of obtaining licences for each of them it should be held that these offences had been committed in the course of the same transaction. Apart from the fact that it is not correct that all these four persons had come on the same day and had paid money to the accused on the same day, the further objection to this argument is that the entrustment of the money by one of the witnesses for the purposes of getting the renewal of his firearm licence could have no relation for the purposes of section 235 (1) with the entrustment by another person of another sum of money though for the same purpose of getting a renewal. These are distinct transactions and I am unable to see by what process one can be said to be in the same transaction as with the other. Mr. Murtuza Hussain's argument, as I understood it, was somewhat like this. Firstly, as has been pointed out, he urged that the offences of breach of trust which, are subject‑matter of the third charge must be held to be one offence having been committed in the course of the same transaction and then this one offence could be tried with the other two offences, namely of forgery and counterfeit. However, when I pointed out to him that the offence of criminal breach of trust could not be said to be an offence of the same kind as forgery and counterfeiting of seals so as to come within the exception to section 234, the learned counsel fell back upon section 235 (1) and stated that all these offences in respect of the obtaining of the money from all these four persons and the counterfeiting of the seals and the forgery of the signature of the A. D. M. should be treated as offences in the same transaction. It appears to me to be impossible to do so. It could be so that the obtaining of the money from one of these persons and the forging of the signature of the A. D. M. on the licence of the said person and the putting of a false seal upon that licence were offences in the course of the same transaction. If that was so, the trial would be valid having regard to the provisions of section 235 (1): This argument, however, could not be stressed so as to include three other persons who had either entrusted the money or from whom money was obtained under false pretences. No authority is needed for the conclusion which I have reached but I may refer to a case which was decided by Kayani, J. reported as Hidayat Ali v. Crown (P L D 1952 Lah, 657), in which the facts were somewhat similar. I accordingly hold that the trial in this case was not in order and the defect is not such which can be cured under section 537, Cr. P. C. I, therefore, set aside the conviction and sentence passed on the appellant in this trial.

4. I would have normally ordered the re‑trial of the accused but I find that in another trial in a case of a similar nature the present appellant was convicted and sentenced on the same day to 5 years' R. I. and fine etc. I, therefore, do not deem it fit to order retrial of this case. K. B. A.?????????????????????????????????????????????????????????????????????????????????????????????? Appeal accepted.