1. This revision application is directed against the judgment of Additional City Magistrate XVI, Karachi dated 3rd April, 1972 whereby the applicant was convicted under section 406, P. P. C. To suffer R. I.
2. For 18 months and the judgment of Additional Sessions Judge, Karachi dated 17th October, 1973 whereby the appeal of the applicant was dismissed but the sentence was reduced from 18 months to 12 months.
3. I am allowing this revision application on account of misjoinder of charges and hence only those facts are mentioned which were relevant for that purpose. On 15th January, 1968, complainant Bail Sharif Khan submitted a written application to the C. I. A. Police, Karachi, complaining that he had entrusted to Malik Noor Mohammad 16 Taxies on, contract of hire at Rs. 800 per month on each Taxi between the dates of 19th February, 1966 to 30th August, 1967 on 16 different dates and that Malik Noor Mohammad had paid the rent up to 1967, and thereafter, he did not make the payment of the rent upon which complainant Haji Sharif enquir--ed from drivers who told him that Malik Noor Mohammad had sold the taxis to them, and thereupon complaint under section 420/406 was filed.
4. The Police made the necessary investigation and on 15April, 1971 A. C. M. XIV, Karachi framed the following charge under section 406, P. P. C.
5. "That you, between 19th February, 1946 to 5th January, 1967 at Pakistan Chowk, Karachi being entrusted with property to 8 Baby Taxis bearing registration Nos. K A U 8968, K A U 8999, K A X 273, K A X 279, K A X 318, K A X 433, K A X 448 and K A X 874, valued Rs. 1,37,500 (Rupees one lac thirty seven thousand five hundred only) by complainant Haji Sharif Khan son of Hazrat Ghulam with whom you were introduced by P. W. Abdul Ghafoor Makrani and you took the aforesaid taxis on contract basis for a sum of Rs. 800 per month each taxi, the taxis being with you as trust but you sold the same toth different persons with common objective and thereby committed criminal breach of trust of Rs.
6. 1,37,500 being the value of the taxis, an offence punishable under section 406, P. P.C.
7. Further that between 20th March, 1967 to 30th August, 1967 at the above-noted place were entrusted with the properties to with 8 baby taxis bearing registration Nos. K A X 1032, K A X 1041, K A X 1102, K A X 1126, K A X 1130, K A X 1131, K. A X 1145 and K A X 1240 valued at Rs. 1,40,000 (Rupees one lac forty thousand only) by complainant Haji Sharif Khan son of Hazrat Ghulam in the manner stated above and disposed the same to different persons.
8. And thereby committed an offence punishable under section 406, P. P. C. And within my cognizance. And, I hereby direct that you be tried by me on the said charge."
9. Many prosecution witnesses and defence witnesses were examined and eventually, the trial Court convicted the applicant and the appellate Court maintained he conviction but reduced the sentence to 12 months' R. I. Under section 406, P. P. C. An objection was taken before the appellate Court that there was a misjoinder of charges and the proceedings were vitiated as section 234 of Cr. P. C. Did not allow a trial of more than 3 offences. The learned appellate Court dismissed the objections on the ground that an application had been made before the Trial Court by the prosecution for separation of the different offences but the defence objected to that application and consequently that application was dismissed. Therefore, the judgment of the appellate Court is really based upon estoppel, but there can be no estoppel against law and the provision of section 234, Cr. P. C. Is quite clear to the following affect:- ---When a person is accused of more offences then one of the same kind committed within the space of 12 months from the first to the last of such offence, whether in respect of the same person or not, be may be charged with and tried at one trial for, any number of them not exceeding three,"
10. The rest of the portion of section 234 is not relevant for our purpose. Thus: it is clear that the present applicant according to section 234, Cr. P. C. Could be tried at one trial with only three offences committed within 12 months. But the letter of the complainant to the C. I. A. Dated 15th January, 1968 clearly gives 16 dates of entrustment in respect of 16 Taxis and they cover a period of more than on year between 19th February 1966 to 30th August, 1967. Even the dates of alleged breach of trust are also different because the different taxis have been sold on different dates to different persons, and therefore, it is clear that the date of entrustment and the date of breach of trust in respect of each Taxi being different, the offence in respect each of 16 of the taxis was a separate offence and only 3 of such offences committed during the 12 months could be joined at one trial, and therefore, the trial of 16 offences in respect of 16 taxis committed on different dates between 19th February, 1966 to August, 1967 exceeding over a period of 30 months was clearly illegal and void as prohibited by section 234, Cr. P. C. Section 537 could not cure this illegality. Reliance is placed upon Nazir Ahmad v. King-- Emperor (AIR 1936 P C 253) where it was held "a rule which applies is that where a power is given to do a certain thing in a certain way then the thing must be done in that way or not at all, other methods of performance are necessarily forbidden". It would also be useful to refer Murid Sadiq v. State (1968 P Cr. L J 657) where it was held that an accused who was alleged to have misappropriated amounts not within one year but within about 3 years and he was tried at one trial, the trial under section 408, was held to be illegal and conviction was set aside.
11. I may note here that the conviction in this case having taken place on 3April, 1972, the case would be governed by the provision of section 537, Cr. P. C. As it had existed at that time where misjoinder of charges was not specifically mentioned to be curable. The amended section 537, where misjoinder of charges has been made curable was enforced on 14April, 1972 by Ordinance XII of 1972, and therefore, it is obvious that unamended section 537, Cr. P. C. Could not cure the illegality in respect of misjoinder of charges. I have therefore no option in this matter but to set aside the conviction as being illegal. I may however note here that I have not discussed the evidencerd th tendered by the prosecution and the defence as I have allowed revision on a technical point only. It would be open to the prosecution to retry the applicant if they deem it fit to do so. The result is that this application is allowed and conviction is set aside. P. R. And surety bond executed by the applicant and his surety will be treated as cancelled.