1. ' Hotchand son of Sitaldas has been convicted by the Special Judge, Anti-Corruption, Sukkur under section 409, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947 and has been sentenced to one year's R.I. And fine of Rs,40,000 and in default of payment of fine to suffer further R.I. For one year. Hotchand has appealed against his above conviction and sentence.
2. ' The F.I.R. In this case was registered by Mazhar Hassan, Circle Officer, Anti-Corruption Establishment, Sukkur on 30-8-1972 on the basis of letter of Shoukat Ali Shaikh, Assistant Commissioner, Sadder Sub-Division, Sukkur which was addressed to Deputy Commissioner, Sukkur and which forwarded to Anti-Corruption Establishment by the Deputy Commissioner, Sukkur with his letter, dated 14-7-1972. According to allegations made in the F.I.R. Hotchand allegedly misappropriated a sum of Rs,19,785 belonging to the Government. The details of the above amount is given in the F.I.R. As follows:- ' Between the period from 17-11-1971 to 30-6-1972 Hotchand allegedly received twelve different amounts on different dates and out of these amounts he did not account for at Rs,45 received on 6-12-1971, Rs,600 received on 10-1-1972 and Rs,690 received on 30-6-1972 in the relevant book. That the cash book showed a sum of Rs,7,919.92 as balance on 9-6-1972 which was found missing. That Hotchand allegedly drew Rs,2,500, Rs,2,000 and Rs,1,500, respectively on 7-12-1971, 14-6-1972 and 24-6-1972 as Taccavi loan which were payable to different persons but out of these amounts the sums of Rs,2,000 and 1,500 drawn by him on 14-6-1972 and 24-6-1972 were not paid to the grantees of the loan nor these amounts were accounted for in the concerned register. That on 14-3-1972 Hotchand received Rs,1,500, 1,000 and 500 from one Hadi Bux, Rs,695 and Rs,464 from one Kalander Bux on 20-6-1972 and Rs,1,755.56 from one Shamsuddin on 4-7-1972 and issued receipts for these amounts but these amounts were not accounted for in the name of anyone. Hotchand is also alleged to have received Rs,1,000 from Wazir Ali Shah Supervising Tapedar for crediting in the Government treasury but this amount though entered by him in the book was not credited and was misappropriated by him. It is lastly alleged that in the permanent advance register a sum of Rs,71.25 is shown as balance in hand as on 8-11-1971 but this amount was also found missing from the office. All these amounts are also shown under four different heads in the F.I.R. But the total of these amounts is shown as Rs,19,440.89 which is different from the sum of earlier mentioned in the F.I.R. As having been allegedly misappropriated by Hotchand. Sanction for prosecution of the appellant was accorded by Deputy Commissioner, Sukkur on 13-3-1975. In the sanction letter it is alleged that Hotchand in his Official position fraudulently and dishonestly misappropriated Government amount to the tune of Rs,19,440.89. The prosecution in support of the case examined Bhimandas, Ramesh Babu, Pir Bux, Ahmad, Wazir Ali Shah, Shoukat All and Mazhar Hassan.. The appellant in his statement under section 342, Cr.P.C. Denied the charges made against him and in his defence examined Nazir Ahmad and Abdul Hayee. The trial Judge after hearing the learned counsel for the parties convicted the appellant under section 409, P.P.C. Read with section 5(2) of the Anti-Corruption Act and sentenced him to one year's R.I. And fine of Rs,40,000 and in default of payment of fine to suffer further R.I. For a period of one year. I have heard the learned counsel for the appellant and the learned State counsel in this appeal at length.
3. ' The learned counsel for the appellant firstly contended that the prosecution has failed to establish the charge of criminal appropriation against the appellant beyond reasonable doubt and as such the conviction is not sustainable in law. The second contention of the learned counsel is that according to allegations in the F.I.R. The appellant allegedly misappropriated Rs,45 on 6-12-1971 Rs,300 on 10-1-1972, Rs,690 on 30-6-1972, Rs,7,919.92 on 9-6-1972, Rs,200 on 14-6-1972, Rs,1,500 on 14- 6-1972, Rs,1,500, 1,000 and 500 on 14-3-1972, Rs,695 and Rs,464 on 20-6-1972, Rs,1,755.56 on 4-7-1972, Rs,1,000 from Wazir All Shah Supervising Tapedar and Rs,71.25 on 30-6-1972, and for each one of these alleged acts of misappropriation he is charged with section 409, P.P.C. And 5(2) of Anti- Corruption Act. It is contended by the learned counsel that according to facts disclosed in the F.I.R.
4. There were at least 11 different acts of alleged misappropriation on different dates in respect of different persons and, therefore, a joint trial of all these offences was not permissible under law as under section 234, Cr.P.C. Not more than 3 offences of the same kind committed within one year could be joined in one trial. The last contention of the learned counsel is that the sanction for the prosecution of the appellant was not valid as it was mechanically granted by the competent authority without considering all the facts and circumstances of the case. It is accordingly contended by the learned `counsel that the conviction and sentence awarded to the appellant be set aside and he may be acquitted in the case.
5. ' Before considering the case of the appellant on merits I will first deal with the legal contentions raised by the learned counsel as in my opinion even on a tentative reading of F.I.R it appears that the trial was held in violation of express provision.Of section 234, Cr.P.C. From reading of the F.I.R.
6. And the evidence produced before the trial Judge it is absolutely clear that the allegation against the appellant regarding misappropriation was not in respect of any single amount but it related to, different specific amounts received by the appellant on different dates from different persons. Each one of these alleged acts of- misappropriation is, therefore, a distinct and independent offence.
7. Therefore, joinder of as many as eleven different acts of misappropriation in one trial was undoubtedly against the law.. There is nothing in the evidence to show that these alleged acts of misappropriation were committed by the appellant in the series of the same transaction nor there is evidence to the effect that misappropriation of these amounts were the result of any conspiracy on the part of the appellant. It need not be emphasised that section 233, Cr.P.C. Enjoins a separate trial for every such charge. Therefore, separate trial for each offence is a rule of criminal jurisprudence while joint trial of several offences permissible under sections 234 to 236 and 239, Cr.P.C. Are in the nature of exception to the general rule which is to be construed strictly. In the present case, as stated above, there were admittedly more than three charges/offences of criminal misappropriation spread over a period of one year and, therefore, trial of all these charges together in one criminal trial was illegal and offended against the provision of section 234, Cr.P.C.
8. The learned A.A.-G. Attempted to argue that different acts of misappropriation alleged against Hotchand arose out of one and the same transaction and was the result of conspiracy on his part and therefore, no exception could be taken to their joint trial. The contention of learned A.A.-G. Does not find support, from the material on record. The learned counsel for the appellant relied on the case of Abdul Rashid v. The State PLD 1960 (W.P.) Kar. 251 in support of his contention which on all fours applied to the facts of the present case.
9. ' The next contention of the learned counsel for the appellant is that the sanction for the prosecution of the appellant was not accorded by the sanctioning authority after applying his mind to the facts of the case. It is contended that the sanction was accorded in a mechanical way without referring to any material placed before the authority. The sanction in the case is dated 13- 3-1975 which was accorded by the Deputy Commissioner, Sukkur. The sanctioning authority has not been examined in the case nor any extraneous evidence has been led in the case to show what material was placed before the sanctioning authority at the time he accorded sanction for the prosecution of the appellant. The letter Exh.9.C. Which is a confidential letter written to the Deputy Commissioner, Sukkur by Shoukat Ali, Assistant Commissioner, Sukkur and which is the basis of F.I.R. In the present case shows that Hotchand had misappropriated a total sum of Rs,19,785.89 under various heads of account. Shoukat Ali Shaikh was examined as a prosecution witness in the case and in his evidence before the Court he maintained that according to his report Exh.9.C. Rs,19,785.89 were found to have been misappropriated by Hotchand. In his cross- examination Shoukat Ali stated that he calculated the amount of Rs,19,785.89 by scrutinising the relevant record. The sanction letter for the prosecution of Hotchand, dated 13-3-1975 states that he had allegedly misappropriated a sum of Rs,19,440.89. Nothing is stated in the sanction letter to show on what material this amount was arrived at by the sanctioning authority. No attempt was made by the prosecution to clarify this inconsistency in the misappropriated amount as stated by this, witness Shoukat Ali Shaikh and the sanction letter. The evidence on record shows that on 23-8- 1972 Deputy Commissioner, Sukkur wrote a letter to the Deputy Superintendent of Police Anti- Corruption Establishment, Sukkur forwarding the report received by him from the Assistant Commissioner in which the total amount embezzled by Hotchand was shown as 19,785.89, with the request that the case may be investigated by the agency and its result may be communicated to him. After about 3 years of this letter the sanction letter was issued by the Deputy Commissioner.
10. There is nothing in the evidence to show that the result of investigation made by the Anti- Corruption agency or any other relevant document were before the Deputy Commissioner, Sukkur, at the time he granted sanction for the prosecution of the appellant. The I.O. Who was examined in the case only produced the sanction letter. He did not state in his evidence that the result of investigation and other relevant documents were sent to Deputy Commissioner Sukkur at the time of obtaining sanction for the prosecution of appellant. There is complete absence of evidence in this regard coupled with the fact that the amount allegedly misappropriated by the appellant is mentioned in the sanction letter as Rs,19,440.89 whereas the evidence of Shoukat All P.W. Shows that the amount misappropriated by appellant was Rs,19,785.89. These facts support the contention of the appellant counsel that the sanction was granted by the authority without application of mind. In the case of Tufail Muhammad v. Crown PLD 1954 Lah. 37 it has been held That "previous sanction" contemplated under section 6 of Act II of 1947 is one which is granted by the competent authority after consideration of all the facts of the case and not a mechanical one, as in spite of the fact that prima facie some offence may be revealed to have been committed by the person against whom sanction is sought by the evidence collected, but the authority is not bound to sanction the prosecution unless it comes to the conclusion that such an action is expedient and in the interest of justice. Similarly in the case of Mahmood Khan v. State PLD 1977 IAA.
11. 1195 the omission on the part of sanctioning authority to mention the misappropriated amount correctly and name of co-accused in the sanction order was held to be sufficient to indicate that relevant papers, were not before the sanctioning authority and sanction was granted in a mechanical fashion. I am, therefore, of the view that the sanction granted by the Deputy Commissioner, Sukkur in the present case for prosecution of the appellant was without application of mind to the facts and circumstances of the case and as such there was no valid sanction in the case. The result is that the trial of the appellant was without jurisdiction in the absence of the valid sanction.
12. As I have reached the conclusion that the trial of the appellant was not valid and legal it is not necessary to examine the case of appellant on merit.
13. I accordingly accept the appeal and set aside the conviction and sentence of the appellant. The appellant is on bail. His bail bond is accordingly cancelled.