1977 P Cr (PLP)

4. Appellant Ishtiaq Ali stated that no money was found from his possession, but he admitted that Exhs. 7, 8 and 8‑A were received by him as Sereshtidar. He also stated that he had old enmity with complainant Ehsanul Haque. Mr. Chishti Advocate was also his enemy. He further explained that a suit was decided against Ehsanul Haque and he appealed before A. D. J., which was dismissed. A writ petition was then filed and his cases were restored. He threatened to see this appellant and he filed application through his Advocate Mr. Chishti for possession and mesne profits. Mr. Shaikh Ghafoor was Civil Judge and he passed orders, which are on record. Possession was restored to Ehsanul Haque on 8th March. On 2nd March Mr. Chishti came to see the order, he said that this appellant had got their cases dismissed because the Judge was ignorant. He again appealed but lost the same. Ehsanul Haque, this appellant, stated was his neighbour. He is a Government contractor. He offered this appellant a quarter in new Karachi. This appellant paid full payment of Rs. 1,

550. The quarter could not be regularised in the name of this appellant. The complainant gave him a cheque, which was dishonoured. This appellant then gave an application to the District Judge and the complainant got further annoyed. Khurshid was another friend of Ehsanul Haque. Khurshid wrote a letter to this appellant and he was to get money from Khurshid. The latter asked this appellant to go and get Mr. Ibrahim's vouchers passed by the Medical Officer. On return Khurshid had told this appellant that Ehsanul Haque had come. This appellant went to the hotel. Money was kept on the table and this appellant was trapped. This appellant produced 9 papers as Exhs. 27 to 35 and he had nothing more to say.

5. Appellant Iqbal admitted in his statement that on the day of occur rence he was Lower Division Clerk to the VII Civil Judge, Karachi. He denied that he had obtained a bribe of Rs.

100. He admitted that Exh. 7 bore his handwriting. He further stated that appellant Ishtiaq Ali told him to accompany him to the hotel. Appellant Ishtiaq Ali had a dispute with complainant Ehsanul Haque. Appellant Ishtiaq Ali had to take from the complainant Rs. 1,

550. This appellant with appellant Ishtiaq Ali sat in the hotel. Complainant Ehsanul Haque was also sitting there. He and Ishtiaq Ali talked about money. Ihsan said he had not full money. He kept money on the table. The Inspector and Magistrate came up. The amount was about Rs.

150. This appellant was told that Rs. 50 had been secured from Ishtiaq and Rs. 100 from him. Later this appellant heard that the case had been concocted, and he had nothing more to state.

6. The learned counsel for the appellant Ishtiaq Ali, namely, Mr. Khalid M. Ishaque, has raised as a preliminary point misjoinder of charges and accused persons in this case and as such he has contended that the trial has, therefore, been vitiated. In my opinion, as I will discuss presently, this contention of his appears quite plausible, therefore, I will discuss this point of misjoinder of charges and accused persons and will not refer to the merits of the facts. The Supreme Court of Pakistan in Abdur Rashid and others v. The State (P L D 1962 S C 249) has also held that while ordering retrial superior Court should not express its opinion on facts.

7. In this case it will be seen from the evidence of the complainant Ehsanul Haque that he alleges that it was appellant Ishtiaq Ali only who demanded Rs. 150 as bribe. The complainant does not say that he ever even talked to appellant Mohammad Iqbal or that the latter demanded any bribe, from him. Obviously, therefore, there is no allegation of demand of bribe by appellant Iqbal. All that the prosecution case is that the com plainant sent for appellant Ishtiaq Ali only through P. W: Qamar when the trap was arranged in Cafe Kemal and alongwith appellant Ishtiaq Ali appellant Mohammad Iqbal had also come. Appellant Mohammad lqbal at that time was a clerk in the Civil Court where the application of the complainant was pending but appellant Ishtiaq Ali had been transferred from that Court to another Court which position is admitted by the complainant. Obviously, therefore, the appellant Ishtiaq Ali could not show any official favour to the complainant, which point need not be elaborated here as facts would be required to be gone into and the law relating thereto referred. The complainant further in his evidence has said that appellant Ishtiaq Ali in Cafe Kemal asked him to pay Rs. 100 to appellant Mohammad Iqbal, which the complainant did. The complainant then paid the balance of Rs. 50 to the appellant Ishtiaq Ali. On these facts, as admitted in the case, Mr. Khalid Ishaque the learned counsel has vehemently contended that each of the appellants' act was his own independent act of receiving bribe as alleged. There is no allegation by the prosecution that there was any pre-concert between them. Even the charge framed against the appellants, Exh. 1 does not show that both the appellants acted jointly. From all these facts I am in agreement with the learned counsel for the appellant Ishtiaq Ali that both the appellants acted independently of each other and that there was no common transaction between them. In support of the contention raised by Mr. Khalid M. Ishaque, he has relied upon a case of Mohammad Mosaddar Haque and Muhammad Abdul Rauf v. The State (P L D 1958 S C (Pak.) 131) where identical facts were present and their Lordships of the Supreme Court held that the joint trial of the appellants was vitiated and they should have been tried separately. This is what has been observed by their Lordships: ‑ "The two accused in this case were tried together by a Special Judge for offences under section 161, P. P. C., read with section 5 (2) of the Prevention of Corruption Act (II of 1947) in accordance with the procedure prescribed for a summons case. The accusation put to one accused, who was a Sub‑Registrar was that he received in his official capacity an illegal gratification of Rs. 15 for registering a deed pre sented 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 for issuing a receipt in connection with the registration of a deed, there is nothing to show that the act alleged against this appellant had any connection with what was alleged against the first appellant. .. Held, that 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 had resulted from adopting a mode of trial prohibited by the Code and it cannot therefore be cured under section 537, Criminal Procedure Code."

8. This Supreme Court decision is obviously on all fours with the present case and it is binding on this Court as such I have to follow it. The result, therefore, is that the joint trial of the two appellants has been vitiated.

9. The learned Assistant Advocate‑General however, tried to justify the joint trial of the two appellants by submitting that section 537, Cr. P. C. as amended by the Court of Criminal Procedure (West Pakistan Amendment) Act, 1964 cured this irregularity of misjoinder of charges and accused persons, and this amendment had come into effect after the decision of the Supreme Court in P L D 1958 S C (Pak.) 131, which was cited by the learned counsel for the appellant. The relevant portion of the amended section 537 reads as follows: ‑ "Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision on account: ‑ (a) (b) of any error, omission or irregularity in the charge or mode of trial, including any misjoinder of charges, or ." But in my opinion even this amendment in section 537, Cr. P. C. is of no avail to the prosecution because there has been patent illegality in this case of misjoinder of charges and accused persons and it cannot be said that every misjoinder of charges and accused persons is curable under the amended section 537, Cr. P. C. For instance this section cannot cure the joint trial of about 10 persons who are charged with different offences on different dates and having committed different acts by themselves. The present case is also of one such type. The two appellants herein have acted independently of each other and there is no nexus of their conduct between themselves at all. It has also been held in the case of Rehmat and 2 others v. The State (1968 P Cr. L J 1935) that it is true that due to an amendment in the Criminal Procedure Code by West Pakistan Amendment Act XXVII of 1964, an error or omission in the conduct of the trial will be curable under section 537 of the Criminal Procedure Code where no failure of justice has been occasioned. This amendment, however, does not mean that a trial can be conducted in utter disregard of the provisions of that Code. I agree with this view expressed by his Lordship Mr. Justice Ataullah Sajjad, who has written the judgment of this decision and the present case also is such that it should not be held that the misjoinder of charges and accused persons in it is cured under section 537, Cr. P. C. The obvious result, therefore, is that the trial' of the two appellants has been vitiated and a re‑trial de novo is to be ordered Accordingly, I set aside the convictions and the sentences of the appellants and order retrial of both of them but they shall be tried each, separately and not together. The appellants are at present on bail and they shall continue to remain on bail during their retrial de novo as they have been convicted as far back as in 1968. This circumstance should also be taken` into consideration by the Judge who is going to try them anew and legiti mate benefit of it should be given to them in their sentences if they are convicted on retrial.

10. For the foregoing reasons this appeal is accepted and retrial de novo of both the appellants is ordered. Application allowed.