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Petitioner: GHULAM JILANI VS Respondent: THE STATE
P L D 1957 (W
P L D 1957 (W. P.) Lahore 290
Before A. R. Changez, J
GHULAM JILANI‑Convict‑Appellant
Versus
THE STATE‑Respondent
Criminal Appeal No. 793 of 1956, decided on 7th February 1957, from the order of Sher Bahadur Khan, Additional District Magistrate, exercising the powers of a Special judge, under Criminal Law Amendment Act 1948, Rawalpindi dated the 20th November 1956.
(a) Criminal Procedure Code (V of 1898)------
----S. 234 ---Offences of criminal breach of trust, and forgery, and falsifi cation of accounts to cover such breach‑Not of same kind Penal Code (XLV of 1860), Ss. 409, 467 and 477‑A.
Emperor v. Mahant K. Mehta I L R 49 Bom. 892 ; Raman Behari Das v. Emperor I L R 41 Cal. 722 and Sailendra Prasad Bose v. The Crown P L D 1952 Dacca 81 ref.
(b) Criminal Procedure Code (V of 1898)-----
---S. 235 (1) ---- Same transaction"‑Test‑Offences must be linked together to make a continuous whole‑Offences of criminal breach of trust and forgery and falsification of accounts to cover such breach Offences committed in course of "same transaction"‑Whether and when such offences committed on more than one occasion can be tried together‑Penal Code (XLV of 1860), Ss. 409, 467 and 477‑A.
The appellant who was a Forest Range Officer committed criminal breach of trust in respect of the pay of the sweeper of his office consecutively for four months, forging vouchers and making false entries in the cash book on each occasion, being thus liable to punishment under sections 409, 467 and 477‑A on each of the four occasions.
Held, that the question whether certain acts or series of acts constitute "same transaction" is in each case a question of fact and no comprehensive formula of universal application can be laid own. To ascertain whether such acts are parts of the same transaction, it would be essential to see whether they are linked together to present a continuous whole.
The offences committed under sections 409, 467 and 477‑A, P. P. C. in respect of each item of pay constituted one series of acts so connected together so as to form the "same transaction" within the meaning of subsection (1) of section 235 of the Code of Criminal Procedure. The voucher was forged and false entry was made in the cash register, either to facilitate the commission of offence of embezzlement or to cover up that offence.
Held further, that even if different offences are committed on different occasions in pursuance of a conspiracy they are held to constitute the same transaction. And, on the same principle, if instead of conspiring with another person the accused had by himself conceived of a scheme of misappropriating the monthly pay of the sweeper continuously and, in pursuance of that scheme, had misappropriated the pay for a number of months by forging vouchers and by making false entries in the cash‑book the series of acts will be so connected together that they would form the same transaction within the meaning of section 235 (1) of the Code of Criminal Procedure.
There was a thread of continuity running through the four acts of defalcations.
The twelve offences‑three on each of the four occasions ‑could therefore be tried together.
[Case Law exhaustively discussed.]
(c) Pakistan Criminal Law Amendment Act, (XIX of 1948)-----
--------S. 5 (5)‑Sanction filed after presentation of challan but before start of proceedings‑Trial not vitiated.
Held, that if the Magistrate had not initiated any proceedings under the Criminal Law Amendment Act before the necessary sanction was placed before him the trial was not vitiated, for the bar was in respect of the prosecution under the Criminal Law Amendment Act and not against the filing of the challan.
Further that, even if it was an irregularity, the same was curable under section 537. Criminal Procedure Code.
Malik Siraj Din v. 7‑he State Criminal Appeal No, 44 of. 1956 S C (Pak.); Rahmat Ali v. The Crown Criminal Appeal No. 48 of 1951 (Lahore) ; Manzur Ali v. Emperor A I R 1939, Lah. 1 and Arjan Singh v. Emperor A I R 1939 Lab. 479 ref.
(d) Sanction for prosecution‑----
----Given after examining only substance of case‑Not invalid.
Held, that if the sanctioning Authority had not before him the whole file of case against the accused but had examined the substance of facts and of the exhibits submitted to him. the sanction could not be found fault with on the plea that the Authority had not applied its mind before giving the sanction.
Tufail Muhammad v. The Crown P L D 1954 Lah. 37 distinguished.
Abdul Qayyum Khan for Appellant
S. A. Mahmud, A. A. G. and Sh. Shaukat Ali for Res pondent.
Date of hearing : 28th January 1957.
JUDGMENT
A. R. CHANGEZ, J.‑-----Ghulam Jilani, who, at the relevant time was Forest Range Officer, Murree Hills Division, was tried for offences under sections 409, 467 and 477‑A, P. P. C. by Khan Sher Bahadur Khan, Additional District Magistrate, Rawalpindi, exercising the powers of a Special judge under the Criminal Law Amendment Act, 1948. He found him guilty of all the aforesaid offences in respect of the pay of the office sweeper for the months of June, July and August, 1953, and sentenced him to one year's rigorous imprisonment on each count under section 409, P. P. C', and to one year's rigorous imprisonment on each count under section 467, h. P. C. He was also sentenced to pay a fine of Rs. 50 under section 409, P. P. C., and in default of payment of fine he was ordered to undergo rigorous imprisonment for a further period of three months. A separate sentence under section 477‑A, P. P. C. was not awarded as it was not considered necessary. All the sentences were ordered to run concurrently. The convict has appealed and Khan Abdul Qayyum Khan, Bar‑at‑Law, has argued the appeal on his behalf.
The case for the prosecution is that one Nawab Khan Sweeper was appointed to work on part‑time basis in the Forest Range Office from the 1st of January 1953, on a salary of Rs. 10 per month. He, however, died on the 25th of April 1953. Mahmud Ali Shah (P. W. 7) was then the Forest Range Officer who continued to work as suchtill the 4th of June 1953, when Ghulam Jilani accused took over from him. The pay of Nawab Khan Sweeper for the months of April, May, June, July and August 1953, at the rate of Rs. 10 per month was disbursed, vide vouchers Exhs. P. A., P. B., P. C., P. D. and P. E. respectively All these vouchers except Exh. P. A. purport to bear the thumb‑impression of Nawab Khan Sweeper. Voucher Exh. P. A. bears the thumb- impression of Kala, son‑in‑law of Nawab, and pertains to the time of the predecessor of the accused. The remaining vouchers were prepared during the time when the accused was the Range Officer. Except for the entries marked P. B/1 in Exh. P. B. and P. C/1 in Exh. P. C., which are in the hand of Ghulam Hussain, Forest Guard (P. W. 3), all the other entries in Exhs. P. B., P. C., P. D. and P. E., are in the hand of the accused. The accused had attested the thumb‑impression of Nawab on all these vouchers and had also given a certificate on each voucher that the amount of Rs. 10 had been disbursed by him. He had also made entries, Exhs. . P. W. 1/D, P. W. 3/A, P. W. 3/B and P. W. 3/C in the cash‑book Exh. P. W. 7/1 showing the disbursement of pay to Nawab Khan Sweeper for the months of May, June, July and August 1953. On these facts, it was alleged that the accused had committed criminal breach of trust in respect of the pay of the sweeper for the months of May, June, July and August 1953, and had forged the vouchers and prepared false accounts to cover up the embezzlement.
When this appeal came up for hearing in the first instance, I felt some doubt if the accused could have been tried for all these offences at one trial. I accordingly asked the counsel for both the parties to address me on this point, but as they were not ready the hearing of the appeal was postponed to another date. Now, I have heard the learned counsel for the appellant and Mr. S. A. Mahmud, Assistant Advocate‑General for the State, both on merits and in respect of the legal points raised in the appeal.
Before considering the appeal on merits, it seems desirable to decide the two legal objections which have been raised on behalf of the appellant.
The first point which the learned counsel for the appellant has raised is that the trial of the appellant stands vitiated on account of mis-joinder of charges.
The accused was tried under the provisions of the Criminal Law Amendment Act 1948, and by virtue of section 5 (2) of this Act, the provisions of Chapter XX of the Code of Criminal Procedure have been made applicable to trial of cases under this Act. Accordingly, the particulars of the offences were stated to the accused as required by section 242 of the Code of Criminal Procedure and he was asked if he had any cause to show why he should not be convicted. The statement of allegations was as follows:‑
"Question :‑It is alleged against you that during your tenure as Range Officer Murree Hills Division, at Rawalpindi, you misappropriated the pay of the office sweeper for the months of May, June, July and August 1953, at the rate of Rs.10 per month by forging the thumb- impression mark of Nawab sweeper (deceased) on the payment vouchers.. The allegations against you prima facie disclose a case under sections 409, 467 and 477‑A of the P. P. C. against you as the offences were committed by you in your capacity of a public servant, in discharge of your official functions as such.
Do you admit these allegations to be correct and thus plead guilty or would show cause and contest."
The accused denied the allegations levelled against him and offered to show cause.
The contention of the learned counsel for the appellant is that three different offences under sections 409, 467 and 477‑A, P. P. C. are alleged to have been committed in respect of each item of Rs. 10 and as such twelve distinct and separate offences have been tried together in contravention of section 233 of the Code of Criminal Procedure, and this has materially prejudiced the accused. Section 233 of the Code of Criminal Procedure provides :‑
"For every distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately except in the cases mentioned in sections 234, 235, 236 and 239".
Therefore, unless the present case is covered by any of the sections mentioned in section 233, the trial of the accused for twelve offences enumerated above is clearly illegal. Sections 236 and 239 of the Code of Criminal Procedure have no application to the facts of this case, and therefore, need not be considered. Section 234 (1), Criminal P. C., is as follows :‑
"When a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences whether in respect of the same person or not he may be charged with, and tried at one trial, for, any number of them not exceeding three."
Mr. S. A. Mahmud conceded that the offences under sections 409, 467 and 477‑A, P. P. C. are not offences of the same kind as envisaged by section 234 of the Code of Criminal Procedure. He, however, contended that all the items in respect of which embezzlement is said to have been committed could have been lumped together by virtue of section 222 (2) of the Code of Criminal Procedure, and as such, it would have amounted to one offence under section 409, P. P. C. There cannot be any dispute about this proposition, but in the instant case, this was not done. In fact, the learned Special judge has convicted the accused on each count under section 409, P. P. C. But assuming for the sake of argument that the four items of Rs. 10 each for four different months could have been lumped together for the purposes of this trial, the prosecution is still faced with the obstacle that four offences under section 467 P. P. C. and four offences under section 477‑A, P. P. C. could not have been tried together with an offence under section 409, P. P. C., for these offences are not of the same kind as an offence under section 409, P. P. C. As laid down in clause (2) of section 234 A of the Code of Criminal Procedure, offences are of the same kind when they are punishable with the same amount of punishment under the same section of the Pakistan Penal Code or of any special or local law. Moreover, even if it be held that these offences are of the same kind, not more than three offences could have been tried together.
It was, however, held by a Division Bench of the Bombay High Court in Emperor v. Manant K. Mehta (I L R 49 Bom. 892) that the offences of criminal breach of trust and falsification of accounts are not offences of the same kind within the meaning of section 234 of the Code of Criminal Procedure. The same view has been expressed by a Division Bench of the Calcutta High Court in Raman Behari Das v. Emperor (I L R 41 Cal, 722). A Division Bench of Dacca High Court has also held in Sailendra Prasad Base v. The Crown (P L D 1952 Dacca 81) that an offence under section 409 of the Penal Code is not an offence of the same kind as an offence under section 477‑A of the Penal Code.
Mr. S. A. Mahmud then relied on subsection (1) of section 235 of the Code of Criminal Procedure and argued that all the twelve offences, in respect of which the accused has been tried, constituted one series of acts so connected together as to form the same transaction. Subsection (1) of section 235 of the Code of Criminal Procedure provides that an accused person may be charged with and tried at one trial for any number of offences which he is alleged to have committed in one series of acts so connected together as to form part of the same transaction. If these twelve offences were committed in the course of the same transaction, then the case will be governed by subsection (1) of section 235 of the Code of Criminal Procedure, and a single trial for any number of offences committed in the course of the same transaction will be legal irrespective of the fact that the offences are not of the same kind and are more than three in number and were committed within the space of twelve months from the first to the last of such offences. The question, therefore, which requires determina tion is whether the twelve offences for which the accused was tried constituted one series of acts so connected together as to form the same transaction. The expression "same transaction" has not been defined in the Code. It has, however, been judicially interpreted by the various High Courts. The question whether certain acts or series of acts constitute "same transaction" is in each case a question of fact and no comprehensive formula of universal application can be laid down. To ascertain whether such acts are parts of the same transaction, it would be essential to see whether; they are linked together to present a continuous whole. In' Emperor v. Sherufalli Allibhoy (I L R 27 Bom. 135), it was observed that the real and substantial test for determining whether several offences are connected together so as to form one transac tion "depends upon whether they are so related to one another in point of purpose, or as cause and effect, or as principal and subsidiary acts, as to constitute one continuous whole."
In Shapurji Sorabji v. Emperor (I L R 60 Bom. 148) Broomfield, J. while dealing with this question made the following observations :‑
"It seems, therefore, that the main test must really be continuity of action. We have to consider what that expression means. It cannot mean, I think, merely doing the same thing or similar things continuously or repeatedly, for a recurring series of similar transactions is not, according to the ordinary use of language, the same transaction. Continuity of action in the context must, in my opinion, mean this : the following up of some initial act through all its consequences and incidents until the series of acts or group of connected acts comes to an end, either by attainment of the object or by being put an end to or abandoned. If any of those things happens and the whole process is begun over again, it is not the same transaction but a new one, in spite of the fact that the same general purpose may continue."
The question whether the mere existence of a common purpose can itself be enough to convert a series of acts into one transaction came up for decision before the Madras High Court in Choragudi Venkatadri v. Emperor (I L R 33 Mad. 502) where Abdur Rahim J. observed as follows :‑
"As regards community of purpose I think it would be going too far to lay down that the mere existence of some general purpose or design such as making money at the expense of the public is sufficient to make all acts done with that object in view part of the same transaction. If that were so, the results would be startling; for instance, supposing it is alleged that A for the sake of gain has for the last ten years been committing a particular form of depredation on the public, viz. house‑breaking and theft, in accordance with one consistent systematic plan, it is hardly conceivable that he could be tried at one trial for all the burglaries which he committed within the ten years the purpose in view must be something particular and definite such as where a man with the object of misappropriating a particular sum of money or of cheating a particular individual of a certain amount falsifies books of account or forges a number of documents. In the present case not only is the common purpose alleged too general and vague but there cannot be said to be any continuity of action between one act of misappropria tion and another. Each act of misappropriation was a completed act in itself and the original design to make money was accomplished so far as the particular sum of money was concerned, when the misappropriation took place".
In Kamlakant, Roy v. Emperor (1938 I L R 1 Cal. 98). it was held that there must be one continuous thread of a common purpose running through the acts to support a joinder of charges in respect thereof.
In Hira Lal v. Emperor (I L R 18 Luck. 403) Agarwal J. laid down the following test :‑
"To ascertain whether a series of acts would form part of the same transaction, the most important point to be considered is whether there was a common purpose and design and continuity of action ?"
In Amrita Lal Hazara v. Emperor (I L R 42 Cal. 957), it was observed that the circumstances which must bear on the determina tion of the question in each individual case whether certain acts constitute a single transaction are proximity of time, unity or proximity of place, continuity of action, community of purpose or design.
In Ata Muhammad Khan AM and others v. The Crown (P L D 1950 Lah. 288), Muhammad Munir J., Chief Justice of the Lahore High Court (as he then was), after examining a number of authorities in this connection, observed as follows :‑
"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 transac tion. 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 causal con nection 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 nevertheless constitute two transactions a joint charge respecting which may be wholly inadmissible".
This was a case in which the accused, Mr. Alvi, had dis honestly removed the goods in a truck from the Govern ment Dump, but before the goods had reached their destination the truck was intercepted in the way. Can the day following the capture of the truck, the accused had destroyed certain documents and had forged others in order to cover up the track of the offences committed by him earlier. Mr. Alvi went up in appeal before the Federal Court of Pakistan and re agitated this Point. Abdur Rashid C. J., while dealing with this question, observed as follows :‑
"The word 'transaction' as used in section 239 of the Code cannot be regarded as synonymous with the word offence'. 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 circum stances 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 transaction. It is the continuity of design and purpose which determines whether various acts or events, constitute one transaction."
After dealing with the facts of the case, he further observed:‑
"On the prosecution allegations the connection between the primary offence and the forgeries is so close and intimate as to render the carrying away of the excess material and the forging of the documents part and parcel of the same transaction."
Applying the tests laid down in the aforesaid rulings to the facts of the present case, I feel no hesitation in holding that the offences committed under sections 409, 467 and 477‑A of the P. P. C., in respect of each item of Rs. 10, do constitute one series of acts so connected together so as to form the "same transaction" within the meaning of subsection (1) of section 235 of the Code of Criminal Pro cedure. The voucher was forged and false entry was made in the cash register, either to facilitate the commission of offence of embezzlement or to cover up that offence.
It was held in Mangal Sen v. Emperor (A I R 1929 Lah. 843) that a charge of criminal breach of trust of a sum of money, can be tried together with the charge of falsification of accounts to conceal the act of misappropriation as both offences constitute parts of the same transaction. The same view was taken in Emperor v. Jagat Ram (A I R 1919 Lah. 440), Michael John v. Emperor (A I R 1931 Pat. 349), Emperor v. aliban Kristo Bagchi (I L R 40 Cal. 318), G. S. Ramsheshan v. Emperor (A I R 1935 Nag. 178) and Prafulla Chandra v. Emperor (A I R 1931 Cal. 8).
But the question whether in the present case the twelve offences alleged to have been committed in respect of the four items, of Rs. 10 each, constituted one series of acts so connected together as to form the same transaction, is not free from difficulty.
This question came up for decision in one form or the other before almost all the High Courts of pre‑partition India, and the High Courts of Calcutta, Bombay, Allahabad and Madras are unanimous in holding .that the trial of three charges of embezzlement together with the corresponding charges of falsification of accounts is illegal. These decisions are Queen Emprees v. Matilal Lahiri (I L R 26 Cal. 560), Raman Behari Das v. Emperor (I L R 41 Cal. 722), Emperor v. Mahant K. Mehta (ILR49Bom.892), Emperor v. Salim Ullah Khan (ILR32All.57), Emperor v. Sheo Saran Lal (I L R 32 All. 219), Emperor v. Shuja‑ud‑Din Ahmad (I L R 44 All. 540) and Kasi Visvanathan v. Emperor (I L R 30 Mad. 328).
The contrary view was, however, taken by the Patna High Court in Michael John v. King Emperor (I L R 10 Pat. 463) and Ramkishan Prasad v. King Emperor (I L R 13 Pat. 170), and by the Oudh Chief Court in Debi Prasad v. Emperor (A I R 1944 Oudh 122).
In G. S. Ramsheshan v. Emperor, Grille, J. C. exhaustively dealt with all the authorities in this connection and, dissenting from the view taken in Michael John v. Emperor affirmed the view that a number of distinct charges of falsification of accounts cannot be tried together with the charge of embezzle ment comprising the items to which the falsification relates at one trial. He also held that one item of falsification or one series of items concerned with one item of embezzlement alone might be tried and no more.
In Shapurji Sorabji and another v. Emperor, a similar question arose before a Division Bench of the Bombay High Court. In that case, the accused had been convicted under sections 408, 409, 420, 467 and 471, I. P. C. The facts were that the accused were employees of the Aden Settlement Executive Committee which was constituted to supply water to the public on payment. Water tickets were printed and sold to the public through the accused who were required to deposit the money in the bank. The accused got 4100 books of water tickets privately printed as occasion arose and sold…
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