1. SAJJAD ALI SHAH, J.--This appeal is directed against the judgment dated 31-3-1985 of learned Presiding Officer, Special Court of Sind (Banks) at Karachi, impugned herein, whereby appellant has been convicted for offence under section 408, P.P.C. And sentenced to R.I. For 5 years and fine of Rs.1,20,000 or in default R.I. For 1 year. Appellant is also convicted for offence under section 477-A, P.P.C. And sentenced to R.I. For 5 years and fine of Rs.10,000 or in default R. I. For 1 year. Both the sentences awarded have been directed to run concurrently. It is also directed that from fine recovered, a sum of Rs .53, 910 shall be paid to Jatia Goth Branch of U.B.L. As the offences alleged against the appellant were committed in that branch.
2. Briefly stated the relevant facts giving rise to this appeal are that on 3-2-1980 Ghazanfar Ali Khan, Zonal Development Manager of United Bank Limited sent a written complaint to the S.H.O. Police Station Shahdadpur for registration of F.I.R. Against Ghulam Muhammad Lutfi appellant in this case.
3. It is alleged in the written complaint that its author on 31-10-1979 inspected branch of the United Bank Limited situated in Jatia Goth and detected some acts of misappropriation and breach of trust committed by the appellant who was at the relevant time Manager of the branch, having served therein up to 21-6-1977. Four such instances were quoted involving amounts of Rs.25,910, Rs.30,000, Rs.12,539.80 and Rs.2.100. It is further stated that in the complaint that amounts misappropriated have been recovered from the appellant. This complaint was forwarded to Inspector F.I.A. Who filed F.I.R. On the basis of it and investigate the case. F.I.R. Was registered on 21- 6-1980 and the offences alleged therein are Under sections 409, 421, 467, 468 , P.P.C. Read with section (2) , Prevention of Corruption Act I of 1947. After the completion I of investigation challan was presented in the Court of Special Judge (Central), Karachi on 2-11-1981. Charge was framed and only one witness Zafarul Haq was examined in that Court after which present law i.e. The Offences in Respect of Banks (Special Courts) Ordinance No. IX of 1984 (hereinafter to be referred as said Ordinance) was promulgated and the case stood transferred to the Court of Presiding Officer of the Special Court of Sind (Banks) Karachi, whose judgment is impugned in appeal before us.
4. The 2nd trial Court amended the charge and brought on the record evidence of P.W. Zafarul Haq previously recorded by Special Judge on 1-4-1984. Four other witnesses were examined namely P.W. 2 Ghazanfar Ali Khan Assistant Vice-President United Bank Limited, P.W.3 S.M. Sharif Farooqui, Inspector F.I.A. P.W. 4 Muhammad Islam employee of Messrs Indus Farm Service, P.W. 5 Naeemuddin, holder of Account No .37 and P.W. 6 Muhammad Yaqoob holder of Account No.27.
5. Before the trial Court appellant in his 342, Cr.P.C. Statement denied allegation of misappropriation in respect of Rs.30,000 received for preparation of demand draft. In respect of other small amounts admitted to have deposited them not on the same day but subsequently. He stated further that prosecution witnesses were deposing against him because they were under the influence of the Bank. He further stated that Each. 4 was taken from him under duress. He has re-paid the entire amount to the Bank on the assurance given to him that no legal action would be taken. This assurance was given by P.W. Ghazanfar Ali Khan who denied the same. Appellant further stated that he was a poor man and had remained in custody for about 6 weeks and had disposed of his entire life savings to re-pay the entire amount to the Bank. He further stated that he had lost his job and continued suffering for past 4 years. He declined to give any evidence in ,his defence.
6. We have heard Mr. Raja Qureshi, Advocate for the appellant and Mr. Abdul Sattar Advocate for the State. At the very outset it was submitted on behalf of appellant that originally the first charge was framed on 13-2-1982 by Special Judge (Central), Karachi (Mr. Qazi Atta Muhammad) in which the amount alleged to have been misappropriated was only Rs.30,000 for preparation of demand draft in favour of E.M.I. Mills, Karachi and subsequently in the second charge framed on 12-2-1985 by Presiding, Officer Special Court of Sind (Banks) Karachi, amount allegedly misappropriated has been increased from' Rs.30,000 to Rs.53,910 collectively from E.M.I. Mills and three other parties namely, Messrs Indus Farm Services' Mr. Naeemuddin and Mr. Yaqoob. In this context grievance was made that Mr. Zafarul Haq, who was examined after the framing of first charge was not re- examined after the framing of the second amended charge. We find from the record that first charge was framed on 13-2-1982 and Mr. Zafarul Haq A was examined by the then Special Judge (Central), Karachi on 1-4-1984. In the deposition witness Zafarul Haq has exceeded amount of Rs.30,000 in the first charge and testified about other items as well increasing the amount allegedly misappropriated to Rs.53,910. It appears that no attempt was made to alter the charge before recording deposition of that witness for the reason that he proposed to testify in excess of the amount and item mentioned already in the charge framed earlier. Second Charge was framed by the present trial Court on 12-2-1985 in which the amount was increased to 53,910 and even the offences are under different sections with the exceptions of section 477-A. P.P.C. Which is common in both the charges. We have seen the original amended charge, which is signed by the learned Presiding Officer on 6-3-1985 and the typed date of 12-2-1985 has been scored of It is submitted by the learned counsel for the appellant that after the amended charge Zafarul Haq should have been re-examined for the reason that his previously recorded deposition was faulty on the ground that it was not consistent with amount and items mentioned in the first charge. On the subject of charge, the relevant law can be found in Chapter XIX of Cr.P.C. Section 221, Cr.P.C. Contemplates that every charge under this Code shall state the offence with which the accused is charged.
7. Section 222, Cr.P.C. Requires that particulars as to time, place and person must be given in the charge. Section 223 requires that manner of committing offence must be stated in the charge section. 227 provides that Court may alter or add to any charge at any time before the judgment is pronounced. Section 231 of the Code provides that after the charge is altered or added by the Court, Prosecutor and accused shall be allowed to re-examine the witnesses who were previously examined before the alteration of the charge.
8. Another defect in the conduct of proceedings before the trial Court relates to the joinder of offences in the subsequent amended charge. Section 234, Cr.P.C. Contemplates that only three offences of the slime kind committed within one year may be charged together. Amended charge vaguely states that from 1-8-1978 to 8-7-1979 accused received in all Rs.53,910 from several parties which he misappropriated as such the offence fell under sections 408 and 477-A, P.P.C. Section 408 , P .P.C. Is criminal breach of trust by clerk or servant and section 477-A P.P.C is falsification of accounts. Both offences are different in nature and cannot be bunched together. Three offences of criminal breach of trust-committed within one year may be put together in the charge and likewise three offences relating to falsification of accounts committed within one year could be put in a charge. Trial of -two or more charges of criminal breach of trust cannot legally be joined with two or more charges of falsification of accounts. In support of proposition stated above reliance is placed on the case of Nagendra Nath Sen v. Emperor AIR 1932 Cal. 486. In the instant case if original charge --sheet/challan (file exhibit portion), dated 17-10-1981 filed in the, Court of Special Judge is perused, it would appear that in the result of investigation by F.I.A. Five different transactions were discovered relating to dates from 5-8-1978 to 8-1-1979. Charge should be framed, keeping in view these transactions in order to find out which relate criminal breach of trust and which to falsification of accounts.
9. For the reasons stated above we set aside the impugned judgment and allow the appeal and remand the case to the trial Court with directions to commence proceedings from the stage of framing of charge rind then proceeding further strictly according to law. We observe further that since this case is very old, it would be satisfactory if the trial Court disposes of this case within one month.