SAJJAD ALI SHAH, J.---Appellant is convicted vide judgment dated 24-3-1982 by the Court of Special Judge, Anti-Corruption/Enquiry Officer, Sukkur, for offences under sections 409, 477-A, P.P.0 read with section 5(2) of the Prevention of Corruption Act, 1947 and sentenced on first count to R.I.
For one year and fine of Rs, 10,000 or in default R.I. For 6 months and on second count to R.I. For 6 months and fine of Rs, 500 or in default to R.I for one month, with further direction that sentences are to run concurrently. Appeal filed against the said decision is dismissed by the High Court of Sindh vide judgment dated 22-12-1988, which is impugned in appeal under consideration.
2. Briefly stated the relevant facts giving rise to this appeal are that appellant was working as Senior Clerk/Cashier in Government Science College, Dokri dealing with cash and accounts when in audit report it was detected that he had committed criminal breach of trust by misappropriating money and falsification of accounts. He had received amounts which were entered in the cash book but then he deposited lesser amounts in Government treasury as shown in the challans as under:-- Amount receivedAmount deposited Amounts misappropriated 1.Rs,216.00 Rs,16.00 Rs,200.00 2.Rs,288.00 Rs,88.00 Rs,200.00 3.Rs,324.00 Rs,24.00 Rs,300.00 4.Rs,316.00 Rs,16.00 Rs,300.00 5.Rs,2,376.00 Rs,76.00 Rs,2,300.00 6.Rs,72.00 Nil Rs,72.00 Rs,3,372.00
3. In the trial Court prosecution examined six witnesses. P.W.1 is Fakhruddin, Superintendent in the Directorate of Education who conducted enquiry alongwith Rashid Ali Pathan. He identified handwriting of appellant and produced cash book as Exh. 2-A and showed entries of amounts of money received by the appellant. He also produced challans in the handwriting of appellant showing: lesser amounts deposited in Government treasury. He produced certificate of Treasury and Audit report and three receipt books. He further stated that Senior Clerk could be authorised by the Principal to look after the cash if there was no cashier. P.W2 Akbar Ali is C.O. ACE, who registered report in Crime No,8 of 1978 on the basis of complaint dated 24-5-1978 from Principal, Government Science College, Dokri. He conducted investigation and recorded statements of witnesses and secured record under Mashirnama. P.W.3 is Ghulam Abbas Jafri who is Handwriting Expert. He gave finding that disputed writings marked A/3 and A/4 and disputed singatures marked B/1 and B/2 and standard signatures of appellant marked as A/1, A/2-1 to X-II/ii and also E 4 were of the same person. P.W.4 is Ahmadullah Qureshi, Principal of the College. He deposed that appellant was Senior Clerk in the College and worked as Cashier from 1976 to 1978. Appellant misappropriated the cash which fact was discovered during the audit. Appellant had signed the challans as Principal for which he had no authority. He also forged signature of Treasury Officer to show that accounts were being maintained correctly. Appellant failed to deposit Rs, 3,272 and the matter was reported to Anti-Corruption for registration of case. P.W.5 is Rashid Ali, who is a party to audit report Exh. 2-1.
According to him, money was misappropriated by the appellant, who used to maintain the cash register. P.W.6 is Muhammad Rafiq, who partly investigated the case after Akbar Ali and recorded statement of the Principal of the College. He had sent up this matter before the Committee and presented challan in the Court. He also produced sanction order Exh. 10-A.
4. In the trial Court, appellant denied allegations levelled against him by the prosecution and stated that he was only a senior clerk and not cashier. He claimed that he did not forge signatures of the Principal, who used to take money from him and issue receipts and blamed him for misappropriation. He stated that he had been falsely implicated by the Principal and declined to examine any witness in defence.
5. Evidence produced and brought on the record was considered by the trial Court and appellant has been convicted and sentenced as stated above. There is documentary evidence which goes a long way to prove the case against the appellant. His appeal is dismissed by the High Court.
Defence plea taken by the appellant that he has been implicated falsely by the Principal, who had been taking money from him and issuing receipts, was put to the Principal in the cross- examination in the trial Court which is denied by him. On the factual side, case against the appellant stands overwhelmingly proved. Witnesses are independent and no reason is shown or alleged against them to implicate appellant falsely. Allegation against the Principal is denied by him. Report of the Handwriting Expert is supported by other evidence of witnesses and documents.
In the circumstances we are satisfied that on merits no interference is warranted.
6. Leave has been granted in this case to consider legal aspect whether conviction and Sentence of appellant were sustainable in law when six offences of the same nature were tried in a single charge in contravention of requirement of section 234, Cr.P.C. Which contemplates that three offences of the same kind committed within one year may be charged together. Secondly, whether offences under sections 409 and 477-A, P.P.C., which are of different nature could be tried together.
In support of the contentions mentioned above, reliance was placed on a Full Bench judgment of High Court of Sindh in the case of Ghulam Muhammad Lutfee v. The State (1986 PCr.LJ 1236)
7. In Criminal Procedure Code, Chapter XIX relates to charge and contains sections 221 to 240.- Sections 221 to 224 specify requirements in respect of charge to the effect that charge is to state specific offence by name and if it has no name then definition of offence to enable the accused to understand full well as to for what offence he is being charged. Charge is also to state time, place and manner in which offence was committed. Section 225 envisages that if any error or omission is made in respect of particulars of the charge mentioned above, then the same shall not be regarded as material unless accused was misled or such error or omission has occasioned a failure of justice. Section 226 is omitted by Law Reforms Ordinance, 1972 and section 227 empowers the Court to alter the charge. Section 228 provides that if the charge framed is altered or addition made, it is in the discretion of the Court to proceed with the trial as if the new Or altered charge had been the original charge. Section 229 empowers the Court to direct a new trial after addition or alteration to the charge if in the opinion of the Court prejudice is caused to the accused with continuation of the trial after alteration or addition of the charge. Section 230 relates to stay of proceedings in case requiring previous sanction and section 231 relates to recall of witnesses when charge is altered. Under section 232, appellate Court or High Court or Court of Session, while exercising revisional jurisdiction is empowered to direct a new trial, if of the opinion that accused had been misled in his defence by the absence of a charge or by an error in the charge.
8. Section 233, Cr.P.C. Contemplates that for every distinct offence there shall be a separate charge and each such charge shall be tried separately except in cases mentioned in sections 234, 235 and
239. Section 234 provides that three offences of the same kind committed within a year may be charged together. Section 235 provides that if in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person he may be charged with and tried by one trial for every such offence. Remaining sections 236 to 240 relate to matters in which it is doubtful what offence has been committed and whether a person charged with one offence can be convicted of another and when offence proved is included in the charge and which persons may be charged jointly and withdrawal of remaining charges on conviction on one of several charges.
9. In the leave granting order of this case, questions mentioned are whether conviction and sentence of appellant were sustainable when six offences of the same nature were tried under a single charge in contravention -f section 234, Cr.P.C. And secondly, whether offences under sections 409 and 477-A, P.P.C., being different in nature could be tried together. The first question mentioned above came up for consideration before the Supreme Court of Pakistan in the case of Nadir Shah v. The State (1980 SCM R 402) in which facts were very much similar. In the reported case appellant Nadir Shah was a Cashier in the Bannu Woollen Mills and was charged with criminal breach of trust under section 408, P.P.0 with regard to various amounts received by him during the period of 29th June, 1959 to 8th February 1963. In all 17 challans were presented in the trial Court. In some cases amounts were allegedly misappropriated and in others appellant claimed to have refunded the amounts. Trial Court acquitted appellant mainly on the ground that by separating cases into 17 trials, provisions of sections 222(2) and 234, Cr.P.C. Had been contravened and appellant had suffered prejudice. Learned Chief Justice of Peshawar High Court allowed acquittal appeals filed by the State and remanded the- cases for .Re-trial. It was observed in the judgment of the High Court that prima facie offence of misappropriation appeared to have been committed in respect of amounts which were subject-matter of the charges. It was also held that although the provisions of sections 222(2) and 234, Cr.P.C. Had not been followed nevertheless this did not help the accused as he had not suffered any prejudice nor contravention thereof entitled him to acquittal. Judgment of the High Court ordering remand was challenged before the Supreme Court, which on the relevant point held as under:-- "Thus whiile there is a limitation of maximum three offences/items which can be combined under section 234, there is no such limitation with regard to offences 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. 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 charge 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."
10. In the reported case mentioned above regarding section 233, Cr.P:C. Which relates to framing of separate charges for separate offences, it was observed that in section 233, Cr.P.C. General rule is laid down that for each distinct offence a separate charge is to be framed except in cases mentioned in . Sections 234, 235, 236 and 239, which are exceptions to the general rule. The provisions of sections 234 to 239, Cr.P.C. Are merely enabling provisions and do not make it incumbent upon Criminal Courts to hold a joint trial in every case. Considering provisions relating to charge in the sections mentioned above in juxtaposition with section 537, Cr.P.C., it was observed in the report as under:-- "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 omissions and further, it also occasioned a failure of justice'. In this matter, the accused was not misled nor separate charges have occasioned failure of justice.
However, in view of the direction by the High Court for framing charges and conduct of the trials, in accordance with the Cr:P.C. Which has substantially met the so-called grievance of the appellant, it is not necessary to make any further comments in this behalf."
11. Legal position, correctly and aptly stated in the case of Nadir Shah, supra, by the Supreme Court is that while three offences/items are permitted to be combined under one charge as contemplated by section 234, Cr.P.C. Such limitation is not applicable in the case of criminal breach of trust in which serveral offences committed within a period of one year, are permitted to be combined under one charge as is allowed under section 222(2), Cr.P.C. Another rule laid down is that errors committed in stating either offence or particulars of charge or omissions in such behalf are not material unless accused is misled by such errors or omissions and failure of justice is occasioned. Considering the instant case in the light of legal position stated above, we find that in the charge framed in the trial Court, six items of misapprepriation have been cited jointly showing total amount misappropriated and to that extent single charge for offence under section 409, P.P.0 is sustainable and unassailable particularly, when we find that appellant in this case was not prejudiced and no such objection was raised by him in the trial Court as is apparent from the record. To that extent charge is separated and saved as legal and proved on the basis of evidence and punishment awarded under that count is upheld.
12. There is also no cavil with proposition that cirminal breach of trust and falsification of accounts are not the offences of the same kind particularly when not committed in the same transaction. It is not permissible, therefore, to join several items of misappropriation with corresponding offence of falsification of accounts. Such joinder of charges is illegal as the same is in contravention of sections 234 and 235, Cr.P.C. For the reason that offences of misappropriation and falsification of accounts are different from each other. This view finds support from decisions in the cases of Abdul Awal Khan v. The State (PLD 1963 Dacca 34), Latif Ahmad v. The State (PLD 1960 Kar. 170) and Ali Nawaz v. The State (PLD 1960 Kar. 287). However, it would be a different case if two offences of misappropriation and falsification of accounts are committed in the same transaction in one series of acts. then rule laid down in section 235, Cr.P.0 will apply. Such question came up for consideration before the Supreme Court of India in the case of Chandi Prasad Singh v. The State (AIR 1956 SC 149). In that case appellant Chandi Prasad Singh as Secretary of the Cooperative Housing Society collected money from shareholders and during the investigation of the affairs of Society lapses were found and appellant was charged for offences under section 409, I.P.C. It was held with the aid of assessors and that under section 477-A of I.P.C. With the aid of jury, both comprised same persons. Verdict of not guilty was returned against both the charges. The Sessions Judge disagreed with the verdict of jury under section 477-A and sentenced him to R.I. For two years. In that connection, contention was raised before the Supreme Court of India that there had been violation of section 234 of the Criminal Procedure Code inasmuch as appellant had been charged with three offences under section 409 and one offence under section 477-A. Contention was repelled and it was held that the case was governed by section 235, Cr.P.C. And several offences under sections 409 and 477-A arose out of same acts and formed part of the same transaction. Additionally it was observed that appellant had failed to show any prejudice caused to him as contemplated under section 537, Cr.P.C.
13. What really follows from the reported Indian case mentioned in the above paragraph is that normally offences under sections 409 and 477-A of the Penal Code are separate and distinct if not committed in the same transaction but if they are committed in the same transaction then section 235, Cr.P.C. Would be attracted and both offences could be charged with and tried at one trial. In the instant case both offences arise from same transaction as falsification is in consequence of six items misappropriated by the appellant. So there was no infirmity in the trial proceedings on the ground that both offences were tried against the same appellant jointly in one trial. However; it appears from the record that in the trial Court one joint charge was framed covering both offences and two separate charges were not framed. This is an error pertaining to stating of offence or particulars of charge and is curable under section 537, Cr.P.C. As no prejudice is caused to the appellant nor any failure of justice is occasioned because no objection was raised by the appellant in the trial proceedings and secondly, sentence on the charge of offence under section 477-A, P.P.C. Is six months and fine of Rs,500 which is lesser than. Sentence of offence under section 409, P.P.C. Which is one year and fine of Rs,10,000 and thirdly, trial Court has directed that both sentences are to run concurrently which means that shorter sentence is merged into longer sentence. For facts and reasons aforesaid no interference is called for.
14. In support of his contention Mr. Korai, learned counsel for the appellant before us, heavily relied upon judgment in the case of Ghulam Muhammad Lutfee v. The State (1986 PCr.LI 1236) which is a decision of Full Bench of Sindh High Court and rule laid down therein is not attracted to the facts of this case. In the reported case trial was pending in the Court of Special Judge, Anti-Corruption when Offences in Respect of Banks (Special Courts) Ordinance of 1984, was promulgated and a separate forum was set up for trial of cases which were covered by Schedule. The case stood transferred to the new Court and the transferee Court amended the charge but did not examine the witness who was previously examined in the previous Court. The difference between the two charges was that amount allegedly misappropriated was enhanced in the second charge.
Assertion made by the transferee Court that witness previously examined was not re-examined because accused did not wish to cross-examine him was not borne out from the record. In such circumstances, High Court held that requirement of section 231, Cr.P.C. Providing for recall, resummon and re-examination of witnesses when charge is altered or added by the Court was not complied with. Another distinguishing feature of the reported case was that during investigation five different transactions were ,discovered and cliarges vaguely stated that within period of one year accused received certain amount from several parties which he misappropriated as such offences fell under sections 408 and 477-A, Cr.P.C. It was held that both offences were different in nature and cannot be bunched together and trial of two or more charges of criminal breach of trust could notlegally be joined with two or more charges of falsification of accounts. Case was remanded to the trial Court to find out as to which charge related to criminal breach of trust and which to falsification of accounts: High Court in the said decision had relied upon the case of Nagendra Nath Sen v. Emperor (AIR 1932 Cal. 486) in which facts were similar and section 234 was interpreted alongwith section 231, Cr.P.C. It is noteworthy that in the case decided by the Full Bench of the High Court of Sindh mentioned above and Indian case relied upon, section 234 was interpreted in the light of section 231, Cr.P.C. Which is on a different footing from interpretation of sections 222(2), 234, 235 and 537, Cr.P.C. As done in the instant case.
15. For facts and reasons stated above, we are of considered view that in this case no ground is made for interference, as such judgment of the High Court is upheld and appeal is dismissed.