WAHEEDUDDIN AHMAD, J.-This appeal by special leave is directed against the judgment of a learned Single Judge of the High Court of Sind & Baluchistan, Karachi, dated the 12th May 1970. By this judgment, the sentence of the appellant was reduced from two years' rigorous imprisonment to six months' R. I.
The appellant Mohammad Abbas, along with Faiz Muhammad, Sher Zaman, Mahmood Bakhsh and Zahooruddin, was tried by the learned Special Judge-cum-Enquiry Officer, Hyderabad, Camp Karachi, under section 5 (2) of Act II of 1947, (Prevention of Corruption Act), and was convicted and sentenced to two years' rigorous imprisonment. Sher, Zaman, Faiz Muhammad and Mahmood Bakhsh were acquitted, and Zahooruddin was convicted and sentenced to six months' R. I. The appellant and Zahooruddin preferred two separate appeals, namely, Criminal Appeals Nos. 174/68 and 175/68, in the former High Court of West Pakistan, Karachi Bench, respectively. A learned Single Judge of the High Court, by judgment dated the 12th May 1970, reduced the sentence of the appellant from two years' R.I. To six months' R.I. The appellant challenged this judgment by special leave to appeal and leave was granted in this case to consider the question whether there was any connection between the incident of the preceding day.
Briefly, the facts leading to this appeal are that on the 11th August 1963, the appellant and acquitted accused Faiz Muhammad and Sher Zaman were working in the C. I. A. At Karachi. On the said date, they visited Kabari Market on Lawrence Road, Karachi along with the acquitted accused Mahmood Bakhsh in a taxi car which stopped near the cabin of one Muhammad Naqi where his brother P. W., Muhammad Taqi was standing. Accused Faia Muhammad came to the complainant Muhammad Taqi and took him to the appellant who was sitting in the taxi- P. W. 4 Rehmat was also in the said taxi along with accused Mahmood Bakhsh whose hands were tied with ropes. The appellant asked P. W. Muhammad Taqi and inquired from him whether he knew accused Mahmood Bakhsh, sitting in the taxi. The complainant recognised Mahmood Bakhsh who previously had a shop on Lawrence Road, Karachi. The appellant asked the whereabout of Muhammad Naqi, brother of the complainant. P. W. Muhammad Taqi informed that he had gone out. The complain--ant was then made to sit in the taxi car. Before the taxi started, the appellant asked accused Mahmood Bakhsh as to who were the persons to whom he had sold the stolen articles. Accused Mahmood Bakhsh named Usman P. W. 7 and Saeed P. W.
3. Accused Faiz Muhammad was asked to brine them. The appellant asked Noor Muhammad P. W. 2 who was standing closeby to point out these persons.
After sometime accused Faiz Muhammad brought P. W. Saeed who was asked by the appellant to produce the stolen articles which were sold to him by the accused Mahmood Bakhsh, but he denied of having purchased the said articles from accused Mahmood Bakhsh. The appellant then got down from the taxi and asked accused Sher Zaman to bring the taxi to Jilani Hotel.
The appellant, along with accused Faiz Muhammad and P.W. Saeed followed the taxi to the said hotel. Muhammad Taqi, the complainant accompanied with others in the taxi, reached Jilani Hotel where he found Zahoor-ud-Din sitting in the said hotel. Thereafter, the appellant, along with aforesaid two persons, also reached Jilani Hotel. Accused Mahmood Bakhsh further disclosed the names of two other persons, namely, Mumi and Ahsan who had purchased the stolen articles from him. Accused Faiz Muhammad went and came back shortly and said that he could not trace out the cabins. Accused Zahooruddin who was already sitting in the hotel volunteered to point out their cabins. He went with accused Faiz Muhammad to bring the aforesaid persons who instead brought one Subhan, younger brother of Ahsan. Servant of Mumi was also brought., It is further alleged that thereafter, the appellant asked P.Ws. Muhammad Taqi, Muhammad Rehmat and Muhammad Saeed to bring the things they had bought from Mahmood Bakhsh but they denied of having purchased from him. Thereupon, accused Muhammad Abbas and Zahooruddin went aside and talked together. Shortly thereafter, they came back to the table and said that if a sum of Rs. 900 was paid, he would let them off. The three persons said that they were not in a position to pay Rs.
900. The deal was then settled at Rs. 600. Accused Zahooruddin told them that if they had no money at that time, he would make payment and that this amount would be returned to him next day. It is further alleged that the appellant threatened the three P.Ws. And told them that unless the payment was made, he would foist the articles on them and would involve them in a criminal case.
Thereupon, the complainant and two other persons agreed to make the said payment.
Zahooruddin is alleged to have given Rs. 600 to Muhammad Abbas appellant and then the three persons were allowed to go away.
The next day, P.W. Muhammad Taqi lodged a report with the Deputy Superintendent, Anti- Corruption Police, Karachi, (Exh. 7), and a trap was arranged. Six G.C. Notes of toe denomi--nation of Rs. 100 each were given to complainant Muhammad Taqi under a mashirnama, Exh.
8. The D. S. P.
Accompanied the complainant in his Jeep, came to Urdu College where two witness--ses, namely, Nawab Din and Noor Muhammad were brought and they accompanied the D.S.P. And the complainant to the shop of Zahooruddin where they were told that he had gone to the shop of Muhammad Yusuf. The party went there and the complainant gave Rs. 600 to Zahooruddin who counted the same. The D.S.P. Thereafter came and arrested Zahooruddin and recovered the tainted money, vide Memo. Of recovery, Exh.
10. After the usual investigations were concluded and the requisite sanction for the prosecution of the appellant Muhammad Abbas was obtained, the appellant was challaned and convicted as stated above.
The defence of the appellant was of denial. It will be noticed that there are two transactions alleged in the present case. One id the payment of Rs 60) to appellant Muhammad Abbas and the other payment made to Zahooruddin on the next day. .There seems hardly any evidence to connect the incident of the trap with the alleged payment of bribe to the appellant on the preceding day. It is a clear case of misjoinder of accused persons. The. Appellant has been prejudiced by trying the two cases together. The case is not covered by section 239 of the Criminal Procedure Code. The learned counsel for the respondent contended that the case is covered by section 6 of the Evidence Act. The: contention of the learned counsel has no substance. Section 6 of the Evidence Act lays down that the facts, which though not in issue are so connected with a fact in issue as to form part of the same transaction, are relevant whether they occurred at the same time and place or on a different place and time. In this case the. Two accused are not connected with each other. There are absolutely two separate transactions. In our opinion, the trial of the appellant with accused Zahooruddin has prejudiced his case seriously. This irregularity is not curable by section 537 of the Criminal Procedure Code. We would, therefore, quash the proceedings and set aside the appellant's conviction. It is open to the complainant to try the appellant separately. It is also open to him to take disciplinary action against the appellant.
Subject to these remarks, the appeal is allowed.