1. ' MUHAMMAD AFZAL ZULLAH, J.-The questions of law and facts involved in these appeals are similar.
2. They are being disposed of together.
3. ' Nadir Shah appellant a Cashier in the Bannu Woollen Mills, was charged with criminal breach of trust under section 408, P. P. C., with regard to various amounts received by him during a period of 29th June, 1959 to 8th February, 1963-the total amount was Rs, 1,20,040.50. Seventeen challans were submitted before the learned trial Court-Additional District Magistrate, Bannu. In some cases the amounts were alleged to have been misappropriated and in the others although the assertion by the accused was that he refunded the amounts concerned, nevertheless, he had converted them to his own use-Thus in the latter category of cases also he could be charged with criminal breach of trust as defined in the Pakistan Penal Code-though it would involve only temporary misappropriation. He denied all the charges. The relevant transactions (accusations) involved in these fifteen appeals, briefly stated, are :- (i)The appellant received R. T. R. No, C/1/1310567 dated 26th May, 1959 for Rs, 10,687/5/- from S. P., Bannu through Mohd. Saleem Khan. He allegedly deposited the amount later on. (Criminal Case No, 219/2 of 1965, Criminal Appeal No, 30-P/73).
(ii) He is alleged to have received Rs, 19,092/9/- on 13th January, 1960 which was sent to the Bannu Woollen Mills by Draft No, 9/12-5/A 402296 by S. S. P., Rawalpindi. He allegedly deposited this amount on 29th February, 1960 and 10th March 1960. (Criminal Case No, 214/2 of 1964, Criminal Appeal No, 17-P/73).
(iii) He received cheque No, 194905 dated 30th January, 1960 from S. P. Tele-communication, Hyderabad for Rs, 12,687-8-0. He is alleged to have deposited the amount later on. (Criminal Case No, 46/2 of 1965, Criminal Appeal No, 24-P/73).
(iv) He received R. T. R. No, 8416137 dated 14th March 1960, for Rs, 7,260/- and is said to have deposited this amount on 8th June 1960 in the Mills account. (Criminal Case No, 212/12 of 1965.
4. (Criminal Appeal No, 20-P/73).
(v) He received Draft No, Nil for Rs, 9,966/4 from S. P. Bannu and allegedly deposited this amount after ,about two years. (Criminal Case No, 210/2 of 1965, Criminal Appeal No, 29-P/73).
(vi) He received Draft No, A-341439 dated 30th June, 1961 for Rs, 4,912/88 from S. P. Kalat. (Criminal Case No, 213/2 of 1965, Criminal Appeal No 25-P/73).
(vii) He received Draft No, A-494967 for Rs, 1,438/69 dated 18th August 1961, and allegedly deposited this amount later on. (Criminal Case No, 221/2 of 1966, Criminal Appeal No, 26-P/73).
(viii) He received Draft No, A-333357 dated 4th September 1961, for Rs, 3,401/64 from S. P., Mianwali and allegedly deposited this amount later on. (Criminal Case No, 208/2 of 1965, Criminal Appeal No, 27-P/73).
(ix) He received Draft No, 380308 dated 28th December 1961, from Superintendent, Central Jail, D. I.
5. Khan for Rs, 4,816 which he received and later, it is alleged, deposited the same into the account on 31st December, 1962 after first depositing it in the account of D. S. P., Rawalpindi on 21st January, 1962. (Criminal Case No, 209/2 of 1965, Criminal Appeal No, 19-P/73).
(x) He received Draft No, A-574089 dated 26th April, 1962 for Rs, 5,046 from Commandant Frontier Constabulary, Peshawar and is stated to have deposited the same into a wrong account of D. S. P.
6. Par, Rawalpindi. (Criminal Case No, 216/2 of 1965, Criminal Appeal No, 21-P/73).
(xi) He received Rs, 3,232.75 on 23rd July, 1962 and Rs, 7,186/76 on 1 1 th October, 1962. (Criminal Case No, 217/2 of 1965, Criminal Appeal No, 22-P/73).
(xii) He received Draft No, G A.196318 dated 18th January, 1963 from the Superintendent, Central Prison, D. I. Khan and received Rs, 7,248.82 through Habib Bank. (Criminal Case No, 213/2 of 1965, Criminal Appeal No, 18-P/73).
(xiii) He received Draft No, A-580464 dated 6th February, 1963 for Rs, 3,364 from Commandant Frontier Constabulary Peshawar. (Criminal Case No, 47/2 of 1965, Criminal Appeal No, 23-P/73).
(xiv) He received Rs, 8,036 on 7th February, 1963 from Central Prison, Peshawar through draft No, 580258 dated 30th January, 1963 (Criminal Case No, 48/2 of 1965, Criminal Appeal No, 31-P/73).
(xv) He received Draft No, G A 186402 dated 8th February, 1963 for Rs, 5,586 from Superintendent, Central Prison, D. I. Khan. (Criminal Case No, 45/2 of 1965, Criminal Appeal No, 28-P/73).
7. ' The learned trial Magistrate after recording evidence acquitted the accused on 24th December 1966, mainly on the ground that by separating the cases into seventeen trials, the provisions of sections 222 (2) and 234, Cr. P. C. Had been contravened and that the accused had suffered prejudice. He also held, that the prosecution case was doubtful because during various checkings, prior to the appellant's suspension, no discrepancy in the accounts was pointed out ; that the system for the maintenance of accounts in the Mills was such that it was not possible to hold that the appellant had misappropriated any amounts-particular reference was made to the practice of reimbursing the losses of the canteen and fair price shop as also the loan advance system ; and that the management had permitted the appellant to keep with him enough funds to meet the exigencies like railway freight and excise duty.
8. ' The State filed appeals against acquittal in fifteem out of seventeen cases under section 417, Cr. P.
9. C. The learned Chief Justice of the Peshawar High Court allowed all the appeals and remanded the cases for retrial, by judgment dated 3rd April, 1973. It has been noted in the impugned judgment that defence of the appellant was conducted negligently. And but for this discovery of a handicap, he might have been convicted straight away in the appeals against acquittal, (instead of the resort to remand for retrial). It was held by the High Court that out of total amount of "Rs, 1,20,040.50 only Rs, 8,000" did not "seem to have been" accounted for. However, it was observed that prima facie, offence of misappropriation "appeared to" have been committed in respect of all the amounts which were the subject matter of the charges. It was also held that although the provisions of sections 222 (2) and 234 had not been followed, nevertheless, this did not help the accused as he had not suffered any prejudice ; nor the contravention thereof entitled him to acquittal. It was, however, held that the appellant should have been tried in four cases by combining the charges into different sets, as permitted by law. This it was observed would "facilitate both prosecution and the accused". The cases in all the fifteen appeals were accordingly remanded for retrial in accordance with law as interpretted in the "aforesaid observations" made by the learned Chief Justice.
10. ' The accused challenged the remand order and direction for de novo trial in this Court. Leave was granted to consider "whether the learned Chief Justice of the High Court acted legally in setting aside the order of acquittal without discussing the evidence and merely on the ground that the number of trials could and should have been reduced under section 222 read with section 234 of the Code of Criminal Procedure".
11. ' Learned counsel for the appellant has contended that the appellant had been prejudiced by the splitting up of the entire amount of alleged embezzlement into separate heads of charges leading to different trials. According to him, if section 222, Cr. P. C. Would have been followed several items in a year would have been included in one charge as if it were one offence ; and it would have been easy for. The appellant to account for various amounts by linking the explanations with each other. He further argued that due benefit has not been allowed to the appellant in this behalf by the High Court. It has also been contended in relation to the cases in which the amount was subsequently deposited by the appellant that the considerations which weighed with the learned trial Court were neither irrelevant nor insufficient to deprive the appellant of the benefit of acquittal, as there was no apprehension of miscarriage of justice. It was also argued that in cases where the amounts had not been deposited, the findings of the learned trial Court should have been accepted-that the appellant had prima facie accounted for the same. Lastly, the learned counsel thought that some observations about the merits of the case made in the impugned judgment would prejudice him during the de novo trial.
12. ' Learned counsel for the State has in reply contended that the provisions contained in sections 222
(2) and 234, Cr. P. C. Are of 'enabling' purport and further that the appellant had not been prejudiced. He has relied on Machia and 2 others v. The State (I). In any case, according to him, the grievance in this behalf having been removed by the impugned judgment, the appeals cannot succeed on this ground. It was also pointed out that the learned trial Court was competent to reframe the charges in accordance with the provisions contained in section 222 (2) and section 234, Cr. P. C. The failure to do so by the said learned Court could not be made a ground for the acquittal of the accused. Learned counsel supported the order of remand passed by the High Court on the ground that the acquittal of the appellant was not based on anything concrete appearing in the evidence instead he was given benefit of certain generalisations.
(1) PLD 1976 SC 695 ' Sections 222 and 234, Cr. P. C. Are, for convenience of reference, reproduced below :- "222:-(1) The charge shall contain such particulars as to the time and place of the alleged offence, and the person (if any) against whom, or the thing (if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which is charged.
(2) 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 : ' Provided that the time included between the first and last of such dates shall not exceed one year.
13. 234.-(1) 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.
(2) 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 : (Provided that, for the purpose of this section, an offence punishable under section 379 of the Pakistan Penal Code shall be deemed to be an offence of the same kind as an offence punishable under section 380 of the said Code, and that an offence punishable under any section of the Pakistan Penal Code, or of any special or local law, shall be deemed to be an offence of the same kind as an attempt to commit such offence, when such an attempt is an offence.)"
14. ' These provisions cannot be read in isolation. It would be necessary to refer to sections 225 and 233, Cr. P. C. They are also reproduced below :- "(225) No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice.
233. 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.
15. ' It is clear from subsection (1) of section 234 that the same does not relate to any specific type of offence, while subsection (2) of section 222 deals particularly with charge of criminal breach of trust, as is involved in the present case. Therefore, for purpose of resolving the controversy, raised from both the sides, it would be necessary to read subsection (1) of section 234 with subsection (2) of section 222. The object of enacting section 222 is obvious from subsection (1) thereof which provides that the charge shall contain such particulars as to "time", "place", "person" and any other "thing" in respect of which the offence was committed so as to give "reasonably sufficient" notice to the accused, "of the matter with which he is charged". On account of nature of the offence in cases of criminal breach of trust, subsection (2) of section 222 made an enabling provision that instead of giving all the details of each item of misappropriation, it would be sufficient to specify" the gross sum in respect of which the offence is alleged to have been committed and this would be "deemed to the a charge of one offence within the meaning of section 234". The only limitation was that the different items so brought under one charge and thus constituted into one offence shall relate to a period of only one year. Section 234 which can be applied to other offences also contains similar provision ; namely, that if a person is accused of more offences than one of the same kind committed within a period of one year, he can be charged with and tried at one trial for any number of them not exceeding three". Thus while there is a limitation of maximum three offences/items which can be combined under section 234, there is no such limitation with regard to offence of criminal breach of trust provided for in subsection (2) of section 222. Therefore, subject to the other conditions, if a person is charged with having committed several offences of criminal breach of trust, within a period of one year, they can all be combined into one charge. But the provision being only an enabling one, it will not be necessary to do so in all the cases ; because the general rule in this behalf is, as provided in section 233, Cr. P. C., that for every distinct offence there shall be a separate charge and the same shall be tried separately except, of course. When the Code itself permits otherwise. This provision is based on a salutary principle that when each charge is tried separately, there is much less apprehension of prejudice to the accused as compared to a trial wherein several offences are combined together. In the present case, it appears' that the provisions contained in section 233, Cr. P. C. Were followed and the enabling provisions contained in section 222 (2), Cr. P. C. And/or section 234, Cr. P. C. Were not made use of.
16. We agree with the learned counsel for the State that in the circumstances of the case, if the learned trial Court thought, of course, before the pronouncement of the judgment as provided in section 227, Cr. P. C., that combination of the charges would help the accused in facilitating his defence, he could have altered the charge/s and proceeded accordingly, as provided in section 228, Cr. P. C. And the sections next following. He could not have made the so-called defect as the ground for acquitting the accused. The High Court was fully justified in correcting the error.
17. ' The reliance by the learned counsel for the State on the case of Machia, although the facts and circumstances thereof are distinguishable, is not entirely misplaced because it was also held therein that a person accused of several offences, as provided in section 233, Cr. P. C. Shall be tried separately for each offence ; but there are exceptions to this rule which only enable the Court under the stated conditions to combine more than one charges in one trial. Similar question was dealt with in Shahadat Khan and another v. Home Secretary to the Government of West Pakistan and others (1). It was observed that "under the Code of Criminal Procedure the rule laid down in section 233 is that for every distinct offence of which any person is accused there shall be a separate charge and every such charge shall be
(1) PLD 1969 SC 158 ' tried separately except in the cases mentioned in sections 234, 235, 236 and 239, Cr. P. C. These sections are the exceptions to the general rule. The general rule is clear enough. A joint trial is under these provisions, by no means compulsory. Nor can it be said that if several accused persons charged for committing the same offence in the course of the same transaction are tried separately then the trial will, irrespective of any question of prejudice, be illegal. The provisions of sections 234 to 239, Cr. P. C. Are merely enabling provisions and do not make it incumbent upon the criminal Courts to hold a joint trial in every case". It needs to be remarked that the provision contained in subsection (2) of section 222, Cr. P. C. Was not considered in the aforenoted case because it was not relevant therein.
18. Before dealing with the questions relating to the merits, it is necessary to refer to the curing provisions in section 225, Cr. P. C. Similar to those contained in section 537, Cr. P. C. The Legislature never intended that the errors committed in "stating either the offence or the particulars required to be stated in the charge or omission in that behalf, be regarded as material unless the accused was in fact misled by such errors or omission. And further, it also occasioned a failure of justice". In this matter, the accused was not misled nor separate charges have occasioned failure o justice.
19. However, in view of the direction by the High Court for framing charges and conduct of the trials in accordance with the provisions contained in section 222 (2), Cr. P. C. Which has substantially met the so-called grievance of the appellant, it is not necessary to make any further comment in this behalf.
20. ' Regarding the merits, it is necessary to note that the learned trial Magistrate dealt with all the accusations as if they could fall into two well-defined categories (1) where the accused took the plea of having deposited the amount though late after the receipt thereof ; and (2) where the accused did not take the plea of deposit. There is no denial regarding receipt of the amounts. To start with there was some confusion about the cases in which the amounts were deposited but the same has been removed by the submission of an agreed signed clarification by both the learned counsel--it is as follows :-{{TABLE}} Sr. No, Case No, Particulars Remarks Cr. A. No, 17-P/73 Rs, 19,092 Deposited Cr. A. No, 18-P/73 Rs, 7,248 Not deposited Cr. A. No, 19-P!73 Rs, 4,816 Deposited Cr. A. No, 20-P/73 Rs, 7,260 Deposited Cr. A. No, 2I-P/73 Rs, 5,046 Not deposited Cr. A. No, 22-P/73 Rs, 10,619 Not deposited Cr. A. No, 23-P/73 Rs, 3,264 Not deposited Cr. A. No, 24-P/73 Rs, 12,687 Not deposited Cr. A. No, 25-P/73 Rs, 4,912 Not deposited Cr. A. No, 26-P/73 Rs, 1,438 Deposited Sr. No, Case No,. Particulars Remarks
11. Cr. A. No, 27-P173 Rs, 3,401 Not deposited P. Cr. A. No, 28-P/73 Rs, 5,586 Not deposited Cr. A. No, 29-P/73 Rs, 9,966 Deposited Cr. A. No, 30-P/73 Rs, 8,036 Not deposited Cr. A. No, 31-P/73 Rs, 5,668 Not deposited :-{{TABLE}}
(I) Total amount deposited Rs, 42,572 (Rs, forty-two thousand five hundred and seventy-two only).
(2) Total amount not deposited Rs, 66,465 (Rs, sixty-six thousand four hundred and sixty-five only)." {{TABLE}} It is necessary condition for proof through evidence, of criminal breach of trust that the misappropriation, conversion or disposal of the amount should have been done dishonestly which terms as defined in section 24 of the Pakistan Penal Code, would necessarily import an intention to cause wrongful gain to one person or wrongful loss to another person. Thus the question of intention is of paramount importance in so far as the offence charged against the accused is concerned. Although the appellant could be convicted for temporary misappropriation even, with regard to the amounts which, in the circumstances of the case, were alleged to have been deposited by him, if the temporary retention thereof by him was with the aforenoted intention. But the reasons given by the learned trial Magistrate for not imputing the said intention to the appellant are neither irrelevant nor we are of the view that in so far as the first category is concerned the acquittal was neither based on unjustifiable reasons nor it resulted in miscarriage of justice. Therefore, the orders of acquittal which are the subject-matter of Appeals Nos. I7-P/73, 19- P/73, 20-P/73, 26-P/73, 29-P/73, could have been maintained on extension of benefit of doubt. We accordingly, accept these appeals, set aside the orders of remand and retrial passed by the High Court and uphold the acquittals with the modification that, in the circumstances of the case, they would be treated as on account of benefit of doubt ; and with the clarification that it would not furnish the appellant a defence in the claims for the recovery of these amounts from him, if the same are established in accordance with the law and facts brought before the forum concerned.
21. Regarding the second category, in the cases which are the subject matter of Appeals Nos. 18-P/73, 21-P/73, 22-P/73, 23-P/73, 24-P/73, 25-P/73, 27-P/73, 28-P/73, 30-P/73, 31-P/73, a proper analysis of the evidence led against the appellant would reveal that prima facie the amounts in question were received by him. They were missing in so far as the accounts are concerned. The appellant tried to account for the same but it seems that he was unable to bring enough material on the record to support his plea. The learned trial Magistrate observed that after having offered some explanation, in respect of each misappropriation, in this category, the appellant wanted to refer to and rely on certain documents which were not forthcoming on the record. Instead of adopting the coercive measure available under the Criminal Procedure Code for procuring the required documents from the concerned sources and/or permitting the appellant to' establish his plea through other reliable evidence, in accordance with the provisions of the Evidence Act, the learned trial Magistrate acted on certain generalisations for coming to the conclusion that no offence had been committed by the appellant even in respect of these amounts. The general considerations which prevailed with the learned Magistrate in this behalf are (a) "the allegations that he somehow managed to embezzle temporarily or permanently the sums of money involved in these cases, is (either) due entirely to the gross negligence and carelessness of those responsible to keep a check on the working of the accused" ; are (b) "they connived at and were in league and unholy alliance with the accused for the improper handling of money" ; and (c) that "they are responsible both for gross negligence as well as for connivance" ; and further (d) that "they------- while conducting the required checks and while the accused was playing with the money" did not act with due care. In addition to the above generalisations, the learned Magistrate seemingly tried to give additional reasons in each case falling in this second category. But on further analysis, it has been discovered that this was also a futile exercise because the learned Magistrate again resorted to some more generalisations ; namely, that the accused had offered the explanation that the amounts concerned were utilized by other persons for the purpose other than for which they were meant and/or the system for maintaining the accounts led to confusion and doubts and further that the documents which could be helpful in testing the plea of the accused in each case were not produced. The prosecution case with regard to the receipt of the amounts by the appellant is not being denied. It was necessary for the learned trial Magistrate to have examined the plea of the accused in each case with a view to see whether it had been established ; or whether the accused was able, at least, to create a reasonable doubt. Nothing was done in that line, which has resulted undoubtedly in gross miscarriage of justice. The High Court was fully justified in upsetting the acquittals in this category of cases. We accordingly, uphold the impugned judgment in Appeal Nos.
22. 18-P/73, 21-P/73, 22-P/73, 23-P/73, 24-P/73, 25-P/73, 27-P/73, 28-P/73, 30-P/73, 31-P/73, and dismiss the same with the clarification that none of the observations made in the judgment under appeals, would influence the mind of the learned trial Court when deciding the matter afresh, on legal evidence and in accordance with law.