P L D 1958 Supreme Court (Pak (PLP)

SHAHABUDDIN, J.‑--Appellants Md. Mosaddar Hoque and Abdul Rouf were convicted under section 161, P. P. C., read with section 5 (2) of Act II of 1947 and sentenced to pay a fine of Rs. 1,000 and Rs. 100 respectively by the Special Judge, Rangpur. Their appeal was summarily dismissed by the High Court of Dace and this is an appeal by special leave which was granted to consider a question of principle raised regarding competency of the joint trial of the two appellants. The case for the prosecution was to the following effect. On 1st February 1955, when P. W. 1 Juhuruddin Bepari presented a Kabuliyat for registration, appellant Mosaddar Hoque who was then the Sub‑Registrar of Gaibandha asked for Rs. 15 as an illegal gratification for registration of the document and ‑on the witness's declining to give the bribe this appellant threw away the document. Thereupon Juhuruddin Bepari reported the matter to the Sub‑Inspector D. A. B. of Gaibandha who recorded his statement and then a trap was laid. Juhuruddin Bepari produced Rs. 23 in notes of different denominations which were initialed by the Magistrate who was deputed to raid the office of the Sub‑Registrar after the payment was made by the witness. On the 5th February Juhuruddin accordingly presented the document for registration, but the Sub‑Registrar did not register it on the ground that he had no time. Thereafter on the 14th February Juhuruddin presented the document again. On this occasion appellant Mosaddar Hoque asked for and received Rs. 15 from Juhuruddin as bribe, registered the document and asked him to pay the registration fee of Rs. 6 to the Moharrir. But when Juhuruddin offered the amount of Rs. 6 appellant Abdul Rouf who was the Moharrir demanded Re. 1 mote saying that if he was not paid he would not attend to this work. Juhuruddin thereupon paid Rs. 7 in all to this appellant and then informed the Inspector and the Magistrate of what had happened, whereupon those officers entered the office and recovered Rs. 15 in marked notes from the Sub‑Registrar appellant Mosaddar Hoque. Rupees seven in marked notes were recovered from Abdul Rouf. Six of the marked notes were in a bag and one was on his person. The receipt given by him to Juhuruddin was only for Rs.

6. When questioned under sections 242 and 342, Criminal P. C., the appellants did not say anything beyond pleading not guilty. At the trial, an objection was taken to the appellants being tried jointly, but the Special Judge overruled it observing that the allegations against the appellants were that they accepted bribes on the same day and almost at the same time and in connection with the registration of the same document and that therefore they were accused of the same offence committed in the course of the same transaction and as such they could be jointly tried. It is not known whether a similar objection was raised before the High Court. In the short order summarily dismissing the appeal there is no indication of the contentions raised before the learned Judges, though it is said that the advocate for the appellants was heard at length. The point was pressed when the petition for special leave was heard and as stated above, leave was granted by this Court for considering whether the joint trial of the appellants was legal. The contention of Mr. Abdullah for the appellants before us was that section 239 (a) did not apply to the acts alleged against the appellants as they neither constituted "the same offence" nor were " committed in the course of the same transaction ". According to him each of the acts constituted a separate transaction by itself and the appellant should have been tried separately. The position taken by Mr. Abdus Salam for the State, on the other hand, was that section 239 (a) covers "similar offences" that the transaction in this case was the registration of document and as both the acts were committed during that transaction the joint trial of the appellants was legal. The relevant clauses of section 239, Criminal P. C., are as follows;

" The following persons may be charged and tried together, namely (a) persons accused of the same offence committed in the course of the same transaction ; (c) persons accused of more than one offence of the same kind, within the meaning of section 234 committed by them jointly within a period of twelve months ; (d) persons accused of different offences committed in the course of the same transaction". The expression "similar offences" does not occur in this section and I think it means only "offence of the same kind" which are defined in section 234 as offences punishable with the same amount of punishment under the same section of the P. P. C., or of any special or local law. The acts under consideration come within this definition, but clause (c) obviously does not apply to them as neither the accusation nor the evidence in the case alleges that they were jointly committed by the appellants. Clause (a) relates not to person accused of "offences of the same kind" but to persons accused of "the same offence" which means an offence arising out of the same act or series of acts. The words "in the course of the same transaction" occurring in clause (a) makes this clear. As for the word "different" occurring in clause (d) it no doubt means distinct also, but essentially it conveys the idea of "not being the same" and in the context in which it appears it seems to refer to offences other than "the same offences" or "offences of the same kind". In this view the acts alleged against the appellants may not come under section 239, Criminal P. C., which is the only provision dealing with joint trial of persons, but even if it is considered that clause (a) or clause (d) cover these acts the joint trial can be justified only if the other requisite, namely, their having been committed in the course of the same transaction is established. The expression "transaction" is not defined in the Code which leaves it to the Court to determine whether a given set of facts do or do not constitute "the same transaction" within the meaning of sections 235 and

239. But section 233 lays down the primary rule that .there should be a separate charge and a separate trial for every distinct offence and it is obvious that the principle of this rule is that embarrassment to the accused and confusion to the jury should not be caused by a number of charges base on disconnected allegations being tried together. Section 233 itself indicates the exceptions to the general rule but it is clear from their language that their object is only to avoid duplication of proceedings. They should therefore be construed with strictness and not to defeat the right of separate trial conferred under the section. As pointed out by Benson, J., in Choragudi Yenkatadri v. Emperor (I L R 33 Mad. 522), " Public Prosecutors and the Courts should give full effect to the spirit of the provisions of the Code, instead of straining them to cover doubtful cases". In dealing with the question as to what constitutes "the same transac tion" Courts, while indicating that the tests to be employed are proximity of time and place, community of purpose or design and, continuity of action, have also pointed out that the two latter are the essential elements which are necessary in order to link together different acts into the same transaction. Proximity of time and place by themselves are insufficient. This view is in accordance with the principle of section 233, stated above ; but the Special Judge in dealing with the objection raised to the joint trial of the appellants seems to have proceeded on the basis that proximity of time and place are sufficient to form the same transaction. He lost sight of the fact that community of purpose or design and continuity of action were sine qua non, if. the separate acts were to be linked together, so as to constitute one/ transaction. As regards the contention of the learned advocate for the State its acceptance would lead to this starting result that had the complainant in this case alleged that some others committed other offences against him while he was in the Sub‑Registrar's office to have the kabuliyat registered, all the persons so accused could have been tried jointly with the Sub- Registrar and the Moharrir regardless of the fact that their various acts were independent of and not connected with each other. This in effect would render nugatory the relevant provisions, which as indicated above, are intended to secure clarity in the elucidation of facts relevant to the guilty or innocence of the accused in respect of the formulated charges, and also to avoid embarrassment to the accused persons in their defence. There are numerous cases on this point, but I can find no reported decision that supports the contention of the learned advocate. On the other hand, there are decisions of early as well as recent date which lay down that to constitute the "same transaction", community of purpose or design and continuity of action are necessary. In Emperor v. Datto Hanmant Shahapurkar (I L R 30 Born. 49) which was referred to by their Lordships of the Privy Council with approval in Babulal Chaukhani v. King Emperor (65 I A 158) on the relevant point of time in the proceedings at which the condition of the sameness of transaction must be fulfilled, it was observed as follows :‑

"According to its etymological and dictionary meaning the word `transaction' means `carrying through' and suggests, we think, not necessarily proximity in time‑so much as continuity of action and purpose. The same metaphor implied by that word is continued in the illustrations where the phrase used is in the course of the `same transaction' * * * * * * * * * In section 239, therefore, a series of acts separated by intervals of time are not, we think, excluded, provided that those jointly tried have throughout been directed to one and the same objective". Crump, J., of the Bombay High Court in Emperor v. Sejmal Poonamchand (I L R 51 Bom. 310), observed that to determine whether two persons concerned were engaged in one transaction " it is necessary to regard the facts from the point of view of those two persons. If they are animated by a common purpose, and there is continuity in their action, then surely there is one transaction so far as they are concerned ". Babulal Chaukhani v. King Emperor is an authority for the position that the relevant time for fulfilling the condition of the sameness of the transaction is the time of accusation and not the time of decision and the expression "the same transaction" was considered by Their Lordships in that case only with reference to a charge of conspiracy. But after doing so their Lordships observed ; " The common concert and agreement which constitute the conspiracy, serve to unify the acts done in pursuance of it." That unification of the acts sought to form "the same transaction" was necessary was also observed in an earlier portion of the judgment. After stating that the conviction of first appellant for theft of electricity and of the second appellant for abetment of the first appellant's acts were maintained and their convictions for conspiracy were set aside by the High Court their Lordships observed; "The separate thefts could only be treated in a case like this as forming a part of the same transaction if they were unified as being overt acts done in pursuance of a conspiracy". The judgment of the High Court was upheld as conspiracy was alleged in the accusation. Coming to the more recent decisions I find in Ata Muhammad Khan Alvi v. Crown (P L D 1950 Lah. 288) the following observation made by my Lord the Chief Justice as Chief Justice of the High Court of Lahore. " 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 transaction. 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 casual connection 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 never theless constitute two transactions a joint charge respecting which may be wholly inadmissible." In that case the accusation was that Mr. Alvi dishonestly received certain goods from the Government dump and, as they were seized before they reached their destination, he with the active assistance of his co‑accused committed or abetted the commission of several forgeries. Objection that the joint trial of the accused persons, on different charges was not covered by section 239 (d) was overruled on the statement in the accusation that the various acts alleged against the accused were committed in pursuance of a conspiracy. In appeal before the Federal Court the objection to the joint trial was repeated but there also it was overruled, the Chief Justice of the Federal Court observing as follows; S. M. K., Alvi v. Crown (PLD1953FC189at198). " 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 circumstances 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 transactions. It is the continuity of design and purpose which determines whether various acts or events, constitute one transaction * * * * * *. The forgeries, according to the prosecution, were resorted to by Alvi in order to show that the removal of the material from the dump by Ata Muhammad constituted a normal business transaction, and that no excess material had in fact been removed. The purpose and the objective of the original conspiracy was therefore sought to be accomplished by resorting to forgeries." In the present case which was tried in accordance with the procedure prescribed for a summons case the accusation is that which the Court puts to the accused under section 242, Criminal P. C. The allegation put to the first appellant the Sub‑Registrar under that section was that he received in his official capacity an illegal gratification of Rs. 15 from Juhuruddin Bepari for registering a deed presented to him. There was no reference in it to what the second appellant, the Moharrir, was alleged to have done. Similarly in the allegation put to the second appellant 'which was that he in his official capacity accepted an illegal gratification of one rupee from Juhuruddin Bepari for issuing a receipt in connection with the registration of a deed presented by the latter, there is nothing to show that the act alleged against this appellant had any connection with what was alleged against the first appellant. In the complaint which was presented by Inspector of Police D. A. B. Rangpur no connection is alleged between these two acts. As a matter of fact, the first information given to the Police officer by Juhuruddin Bepari was only with regard to the demand of illegal gratification made by the Sub- Registrar. It was only after the trap was laid and the bribe was passed on the Sub‑Registrar and the Moharrir was also paid a rupee as bribe that Juhuruddin Bepari stated to the officers that he had not only paid Rs. 15 to the Sub‑Registrar but had also paid one rupee to the Moharrir. It was not alleged that the Sub‑Registrar had asked him to give an illegal gratification to the Moharrir nor was any kind of statement made which can be taken as showing that the acts of these two appellants were in pursuance of any design or scheme. On the other hand, Juhuruddin Bepari stated in his evidence that the Sub‑Registrar after receiving Rs. 15 from him told the Moharrir to receive the necessary fees and that the Sub‑Registrar further told him the witness, to pay six rupees as registration fees to the Moharrir but that the Moharrir was not satisfied with six rupees but asked for a rupee for himself. It is thus clear that both in the accusation and evidence there was nothing to link the acts alleged against the appellants into the "same transaction". It cannot be said of either act that it was a cause or ‑Effect of or the occasion for the other. On the other hand, each was a transaction by itself. There was no common object in the sense that one helped the other in receiving an illegal gratification. The object of the Sub‑Registrar was to receive an illegal gratification of Rs. 15 for himself and the object of the Moharrir was to receive a rupee for himself. In the circumstances the joint trial of the appellants was illegal No question as to whether prejudice was caused or not need be considered as illegality has resulted from adopting a mode of trial prohibited by the Code and it cannot therefore be cured under section 537, Criminal P. C. I would therefore set aside the convictions and sentences and direct that the appellants be retried separately according to law. It is unfortunate that a Special Judge should have been so careless in the trial of the case as to disregard a valid objection without fully considering it. Equally unfortunate, it is that this fatal defect in the trial was not noticed by the learned Judges who summarily dismissed the appeal. MUHAMMAD MUNIR C. J.‑I agree. MUHAMMAD SHARIF, J.‑I agree. AMIRUDDIN AHMAD, J.‑I agree. A.H. Re‑trial ordered.