P L D 1960 (W (PLP)

The prosecution story is that Ali Nawaz was a clerk in the Court of Sub‑Judge and First Class Magistrate, Kotrir He was incharge of case properties pending in Court. It is alleged that lie received Rs. 150 between 1‑11‑1947 and 4‑10‑1958 from N4rs. Sheila John as fine but lie did not account for the same in the Register of accounts. He was also incharge of Jewellery and clothes etc. On 3‑9‑1958, the Sub‑Judge asked him to show him list of property handled by him but he went on leave saying that the key had been lost. The property was checked in the presence of Ghulam Rasul, Chief Ministerial Officer and the Mukhtiarkar on 5‑9‑1958, and sealed out. It was found that he had mis appropriated property worth Rs. 2,

000. It is also said that afterwards he received Rs. 50 front .M/s. William John and converted the same to his account. He have a Kutcha receipt and did not deposit the money in the treasury. The charge sheet, Exh. 1, showed only the two items of ':c. 2,000 and Rs, 150 as separate cases of misappropriation. He was, therefore, called upon to show cause why he should not be convicted for offences under section 409, P. P. C. and section 5 (2.) of Act 11, 1947. On behalf of the prosecution, Lal Muhammad, Ghulam Rasul (who checked the property), Abdul Aziz, Mrs. John, Ali Madad Shah, Sub‑Judge and F. C. M., and M. Akram Beg were produced in evidence who supported the prosecution story. In his state ment, the accused said that he had received only Rs. 50 and not Rs. 150 from Mrs. Sheila. He said that the ease property had been stolen. He said that he lead receives: about 8000 appli cations regarding election and he could not look into tile property himself with the result that it was stolen. He produced only one witness Ghulam Nabi, in defence who said that the accused returned Rs, 50 to the servant of Mrs. Sheila. The accused said in the lower Court that all tile allegations against him were false. The Public Prosecutor urged that in this case the property was found missing and the accused had disappeared. He said that the prosecution has proved beyond reasonable doubt and that accused has dishonestly and fraudulently misappropriated the entire property which was entrusted to him estimating to the value of Rs. 2,

000. The learned Special Judge'‑found that the accused was a public servant and, in that capacity, he fraudulently and dishonestly misappropriated the case property and also Rs. 50 deposited by Sheila. He accordingly convicted the accused under section 5 (2a of Act II, 1947, only, The facts of the case are not disputed before me. In the memo of appeal, the following arguments were advanced by the counsel for the accused :‑ (I) The trial was not conducted in accordance with Cr. P. C. in as much as his defence was shut out. (II) The accused had applied for permission to examine witnesses under section 540, Cr. P. C. but his application was rejected. The learned counsel for the State said that the accused applied too late. He was un-represented till the very end of the trial. The learned counsel for the accused pointed out that his application was filed on 2‑4‑1959 on which the witnesses were summoned at his risk for the next date which was 29th April 1959. On 29‑4‑1959, it was noticed that the summons were not served. The case was postponed to 13‑5‑1959. No other date was given by the Court for the witnesses of the accused on the ground that the summons were issued at the risk of the accused. The counsel further argued that there was misjoinder of charges in as much as there were two separate offences under section 409, P. P. C. and section 5 (2) of Act II, 1947, alleged to have been committed by the accused. The offence under section 409, P. P. C. was quite a separate and distinct offence and not part of the same transaction and, therefore, under section 234 (I), P. P. C. it should be deemed that there were four offences which could not be tried at one dial under section 234 (1), P. P. C. In Criminal Appeal No. 133 of 1959, I have recently held, agreeing with the reasoning given in a judgment of the Full Bench of the Bombay High Court in Chandra v. K. E. (A I R 1952 Bom 177), in which, the accused was charged with misappropriation on two counts and with alternative offences under section 420, P. P. C. on these two counts. In that case, the Full Bench gave the opinion that, there was misjoinder of charges because there were actually four offences alleged to have been committed by the accused. The trial was accordingly held to be illegal. I have not been shown any Ruling of this Court or of the Supreme Court of Pakistan to have held a contrary view. The learned counsel for the State said that the point may be examined whether the conviction of the accused recorded under section 5 (2) of Act II of 1947 only had any hearing on the issue. In my view, it is the accusation which will be relevant in deter mining whether the condition of there being the same transaction ,4 is fulfilled. The provisions of sections 233‑239, Cr. P. C. are designed to protect the interest of the accused who may not be bewildered with the complexity of charges levelled against him or, any co‑accused which he may not be able to defend properly. In this case, the accused was definitely told in the beginning that he was being prosecuted under two heads‑section 409, P. P. C. and section 5 (2) of Act II of 1947. The principle that it is the accusation that matters and not the result of trial was enunciated in Babulal Choukhani v. K. E. (65 I A 158) referred to with approval by their Lordships of the Supreme Court in Mosaddar Hoque v. State (P L D 1958 S C (Pak.) 131 at p. 136). The learned counsel representing the State further argued that, as under section 5 (4) of Act II of 1947, the proceedings have to be in addition to the charge under section 409, P. P. C., there would, therefore, be no infringement of section 234, Cr. P. C. According to him, the same offence here comes under different definitions and, therefore, section 235 (2), Cr. P. C. would apply. Section 235 (2), P. P. C. reads :‑ "Section 235 (2).‑If the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the person accused of them may be charged with, and tried at one trial for, each of such offences." In my view, this subsection (2) of section 235 does not alter the position of this trial so far as the infringement of the provisions of section 234 is concerned. Under this subsection, the acts alleged may fall within two or more separate definitions and the person accused of them may be charged and tried at one trial for each of such offences. It would thus appear that if the misappropriation of the appellant in respect of one item is also punishable under section 5 (2) of Act II of 1947 then one particular misappropriation would be triable at one time under both these sections. This does not mean that two offences of misappropriation separately committed at different times by the accused for which two other charges have also been framed and which make up the number of offences to four are covered by section 235 (2), Cr. P. C. There would be a misjoinder of charges all the same. I am definitely of the view that the reasoning given in the judgment of the Full Bench of the Bombay High Court in Chandra v. K. E. re‑affirmed in Sir Ram Veowa v. State (A I R 1956 All. 466 (F B)) is worthy of acceptance. I accordingly hold that, in this case, a misjoinder of charges has taken place. The trial has been vitiated. The order passed by the learned Sessions Judge, is, there fore, set aside. In view of the seriousness of the offence, I order that the accused should be re‑tried in accordance with law. I need not go into other arguments which the accused could still press before the trial Court. K. M. A. Retrial ordered.