P L D 1952 Lahore 657 (PLP)

KAYANI, J.‑These three appeals by Hidayat Ali relate to offences of criminal breach of trust, cheating and forgery, committed by him during 1950 as a clerk in the Office of the District Inspector of Schools at Multan. There were altogether ten amounts totalling Rs. 2,225‑6‑

0. Four of these amounts form the subject matter of Appeal No. 276 of 1952; three relate to appeal No. 277 and the remaining three to Appeal No.

278. In each case the convictions and sentences are as follows (1) Under section 419, Pakistan P C two years. (2) Under section 420, Pakistan P C three years. (3) Under section 409, Pakistan P C five years. (4) Under section 468, Pakistan P C five years. They are concurrent in each case and also concurrent with the sentences in the other two cases. The result thus is that there is a total sentence of five years' rigorous imprisonment. The appellant is about 21 years of age and entered service in October, 1949. His duty was to prepare salary bills of female teachers and to hand them over to the District Board bill clerk Khuda Bakhsh (P. W. 9 in Appeal No. 276) who thereupon made cheques in the name of the District Inspector. The cheques were then cashed by Sher Muhammad (P. W. 10) who passed the money to Mazhar Husain (P. W. 11) bill clerk in the Office of the District Inspector. The appellant's further duty was to write out money orders in the names of the various female teachers and both he and Mazhar Husain then went to the post Office to remit the monies, actual payment being made by Mazhar Husain. The postal receipts were kept by Mazhar Husain and the payees' receipts by the appellant. It was discovered that money orders in eight of these cases were addressed to house No. 1428 in which the appellant himself resided and in two cases to a place occupied by a relative of the appellant. The names of the payees were given correctly but when the postman went to deliver the money at its place of destination, the appellant, pretending to be a brother or other relative of the payee, took in the money order form, received the money, signed the receipt purporting to have been signed by some lady inside, brought it out of the house and signed the receipt again by way of attesting the signature of the payee in his capacity as a relative. If these monies had been remitted to their proper destinations the payees should have disbursed them to themselves and to other female teachers and preparing acquaintance rolls should have sent these rolls to the head office in token of receipt of monthly salary. In order to make up for these rolls, the appellant forged acquittance rolls himself and kept them in the office as though they had been genuine rolls sent by the payees. The appellant admitted that he had received these monies, that he had forged signatures on the money orders and that he had forged the acquittance rolls. The learned counsel for the appellant argued, firstly, that there was no offence under section 409, and, secondly, that there was a misjoinder of trials. The first contention is clearly well founded because the appellant had no dominion over any property which he had misappropriated or in respect of which he had committed breach of trust. This is admitted by Mr. Jamil Asghar, learned counsel for the Crown. On the second point, it was contended that two of the three trials covered three amounts in each case and that the third covered four amounts and that in respect of each of these amounts an offence had been committed under section 419 because the appellant had falsely personated himself as the payee, another offence had been committed under section 420 because the appellant had cheated the postman and a third offence had been committed under section 468 because the appellant had forged the acquittance rolls and signatures on the money orders. It was possible to try three offences relating to the same transaction, that is to say, the same amount; and it was possible to try together three offences of the same kind committed within the year, but it was not possible to lump together three or four transactions and join together twelve offences in one of these three trials and nine offences in each of the other trials. Mr. Jamil Asghar for the Crown argued that since at the commencement of the trial there was a charge under section 409, Pakistan P: C., it was possible by the operation of section 222 (2) Criminal P. C. to lump. together all cases of dishonest breach of trust occurring within the year and to treat the whole as a charge of one offence and so treating it to enlist the support of section 235 (1) and add to the charge other offences committed in the course of the same transaction. This makes one breathless. I do not think the two sections in question can be so joined together. Section 222 (2) says "When the accused is charged with criminal breach of trust or dishonest misappropriation of money, it shall be sufficient to specify the gross sum in respect of which the offence is alleged to have been committed, and the dates between which the offence is alleged to have been committed, without specifying particular items or exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of section 234", but it does not say that the charge so framed shall be deemed to be a charge of one offence within the meaning of any other section, section 234 for instance. Section 234 enables the joint trial of three offences of the same kind committed within the space of twelve months. Reading this with section 222, the meaning should be that if three offences consolidated in the manner suggested by section 222 have been committed within twelve months, they can be tried together under section

234. The general rule stated in section 233 is that for ever distinct offence there shall be a separate charge. The excep tions are stated in section 222 and the sections following section

233. If, therefore, a case does not clearly fall within the exceptions, the general rule must be followed. In this view of the case, the three offences relating to each of the ten amounts can be tried together as arising out of the same transaction, but there should be ten separate trials. The appeals are accepted and the convictions and sentences set aside. There should be a retrial as indicated. In the meantime the accused should be released on bail in Rs. 5,000 with two sureties in like amount to the satisfaction of the District Magis trate. A.H. Retrial ordered