P L D 1952 Lahore 34 (PLP)

MUHAMMAD JAN, J.‑Muhammad Hafeez appellant was employed as a clerk in the office of the Co‑operative Farming Society, Punjab, Lahore, from 22nd March 1950, to 26th July 1950, when he was dismissed from service. Akhwan Abdul Rauf, Deputy Registrar, Co‑operative Farming Society, Lahore, had two accounts in the Lahore Central Co‑operative Bank. One was in the name of the West Punjab Cotton Corporation Ltd., and the other, which is described as personal, was presumably the account of the Co‑operative Farming Society. Abdur Rauf operated on both these account and was supplied with two cheque books. Cheque Book No. 22757 related to the account of the West Punjab Cotton Corporation Ltd. and Cheque Book No. 23987 to what has been described as the personal account. It was discovered in the month of August that a blank cheque had been removed from the cheque book of the West Punjab Cotton Corporation Ltd., and intimation to this effect was sent by Akhwan Abdur Rauf to the Central Co‑operative Bank Ltd., Lahore, by letter Exhibit P. L., dated the 5th August, 1950. It appears that two cheques from his personal cheque book had also been removed of which he was not aware at the time of writing Exhibit P. L. One of them (Exhibit P. B.) was drawn in favour of Sajid Ali Khan for Rs. 1,

200. It purported to have been signed by Abdur Rauf arid was dated the 8th July 1950. It was presented to the bank and cashed on 10th July 1950. There is 'evidence of the handwriting expert and other witnesses familar with the handwriting of the appellant that the writing on the cheque is in the hand of the appellant. The cheque removed from the cheque book relating to the account of the Punjab Cotton Corporation (Exhibit P. A.) was drawn in favour of one Ali Ahmad Khan for the sum of Rs. 2,

500. It was dated 28th August 1950, and purported to have been signed by Abdul Rauf. The handwriting expert has deposed that the writing on this cheque also is that of the appellant. Muhammad Sarwar (P. W. 4), a clerk in the Co‑operative Bank, saw the appellant endorsing this cheque and presenting it for payment and because payment had been stopped by letter Exhibit P. L. the appellant was suspected and handed over to the police. At the trial he was charged under sections 380, 468, 420 and 419/511 Pakistan Penal Code. Sub sequently he was charged separately under sections 380, 468 and 419/511 in respect of Exhibit P. A: and under sections 380, 468 and 420 Pakistan Penal Code in respect of Exhibit P. B. He was convicted under section 411 Pakistan Penal Code for stealing two cheques (Exhibits P. A. and P. B.) and sentenced to one year's rigorous imprisonment in each case but the sentences were ordered to run concurrently. Under section 468, he was sentenced to three years' rigorous imprisonment in each case and the sentences under this charge were ordered to run consecutively. Under section 420, he was sentenced to three years' rigorous imprisonment in each case, although he was charged under section 420 only in one case, i.e., in respect of Exhibit P. B. and for the offence under section 419/511 Pakistan Penal Code, he was sentenced to one year's rigorous imprisonment. The sentences for all the offences were ordered to run concurrently except for forgery where the sentences were to run consecutively. The aggregate sentence was, therefore, six years' rigorous imprisonment and Muhammad Hafeez has appealed to this Court. It appears that originally two cases were filed against him, one in respect of cheque (Exhibit P. A.) and the other in respect of cheque (Exhibit P. B.) They related to offences committed on two different occasions and constituted two separate transactions. The trial Court, however, tried the alleged offences relating to both the cheques in one trial because the offences had been committed within the space of twelve months and the witnesses in both cases were common. According to the trial Magistrate, he was empowered to do so under section 234, Criminal Procedure Code. It seems to have escaped his notice that under section 234, Criminal Procedure Code, an accused cannot be tried in one trial for more than three offences of the same kind committed in the course of twelve months from the first to the last of such offences. In clause (2) of this section, it is laid down that offences are of the same kind when they are punishable with the same amount of punishment under the same section of the Penal Code or any special or local law. The appellant has been tried and convicted under different sections of the Penal Code for theft, forgery and attempting to cheat in respect of Exhibit P. A. and for theft, forgery and cheating in respect of Exhibit P. B. He has thus been tried and convicted in one trial for six offences and some of these offences are punish able with different punishments under different sections .of the Penal Code. They are not offences of the same kind and the trial is illegal. It was held in Faujdar‑Mahto v. Emperor (27 Cr. 1 L J 143) that where different offences are committed by the same accused in two separate and indepen dent transactions the offences cannot be tried together in one trial. The facts of the case were that two girls were kidnapped by the accused on different dates and were falsely passed off as Chatri girls on receipt of money from the complainant who wanted a wife for himself and a wife for his brother. The accused was charged with and tried for separate offences of kidnapping and cheating in respect of each girl in the same trial. The trial was held to be bad on account of mis-joinder of charges. In Gerimal v. Emperor (18 Cr. 1 L J 664) the accused was charged at one trial with four offences, viz., of having abetted an unknown person to fix his thumb impression, purporting to be of someone else, on summons issued by ‑a Civil Court and of swearing false affidavits in regard to the service of those summons on different dates. It was held that the accused had been tried for more than three offences, that those offences were not of the same kind and the provisions of section 234, Criminal Procedure Code, did not apply to the case. Because the offences were not‑ committed in the course of the same transaction, section 235 had no application either and the trial was set aside. A perusal of section 234, Criminal Procedure Code, would make it clear that it does not allow one trial in respect of three transactions of the same kind made up of different offences. It only provides that when a person is accused of more offences than one of the same kind committed within the space of twelve months, he may be charged with and tried, at one trial, for not more than three such offences. The trial of this case has contravened the provisions of section 234, Criminal Procedure Code, and I hereby set it aside. The appellant will remain in jail as an under‑trial prisoner and be retried according to law by the District Magistrate of Lahore, or some other Magistrate subordinate to him to whom he may entrust the trial. A. H. Retrial ordered.