' These two appeals are filed by Feroze Hussain Shah, a former Head Clerk (Accountant) in the office of the Superintendent of Police, Jhelum. He was convicted under section 409,P. P. C. By Mr. Abdul Waheed, Special Judge, Jhelum. In Criminal Appeal No, 265 of 1971 he was sentenced to undergo three years' rigorous imprisonment and a fine of Rs, 6,500 or in default to undergo further imprisonment for one year. In Criminal Appeal No, 266 of 1971 substantive sentence was awarded as three years' rigorous imprisonment. He was also directed to pay fine of Rs, 6,000 or one year rigorous imprisonment in default thereof. The convict has preferred two separate appeals against these orders. Both these appeals shall be disposed of by this judgment.
2. Briefly the facts necessary for the decision of them appeals are that from 16-1-1962 to 21-11-1963 Feroze Hussain Shah Accused, worked as Accountant in the office of Superintendent of Police, Jhelum. On his transfer to Cambellpur on 21-11-1963 it is alleged that he without properly handing ever the charge to his successor or anybody else in the office rushed to his new assignment. He was recalled in the o ce of Superintendent of Police, Jhelum, on 7-12-1963, for making over the charge to his successor. A number of pending references were found unattended in his custody and certain defalcations of public money were also detected. The matter was probed into through an enquiry, and on the finding of the Enquiry Officer the Superintendent of Police, Jhelum ordered for the registration of a case against him. On 31-12-1963 a case under section 409, P. P. C., was registered at Police Station City Jhelum. Subsequently, on a reference made by the Superintendent of Police, Jhelum, to the Inspector-General of Police, Lahore, Mr. Sultan Mohammad an Auditor in the office of Deputy Inspector-General of Police, Sargodha was deputed to carry out special audit of the S. P. Office, Jehlum, for the period accused remained posted as Accountant in that office. It was found that the accused received various amounts from police officials, and he also drew certain amounts from the Treasury during this period, and misappropriated this amount for his own use.
3. During the tenure of his office at Jhelum about 90 defalcations pertaining to the year 1962 and about 147 for the year 1963 were detected by the Auditor. For the purpose of this appeal it is not necessary to go into the details of each defalcation, it is sufficient to say that the accused misappro priated an amount of Rs, 6,513.11 in the year 1962 and Rs, 5,757.90 in the year 1963.
4. As the accused was charged with criminal breach of trust, prosecution to meet this contingency invoked the provision of section 222. Cr. P. C., lumped up various acts of misappropriation committed during one year. Consequently, two challans i,e, one pertaining to the acts of misappropriation committed during the year 1962 and the other for the year 1963, were put up before the trial Court. Prosecution examined 77 witnesses in each case. Accus' ed when examined under section 342 Cr. P. C., by the trial Court denied all these allegations and pleaded innocence.
5. Learned counsel for the appellant has raised a preliminary objection that section '09, P. P. C. Is a scheduled offence under the Pakistan Criminal Law Amendment Act, 1958 and it can only be tried by a Special Judge notified under the Act. The case of the appellant, he submits, was tried by different Additional District Magistrates and none of these Magistrates enjoyed the powers of a Special Judge under the Act. The trial of the appellant, as such is illegal and without jurisdiction. On 18-6-1971, at the time of the grant of bail to the appellant came up for consideration before Mr. Justice M. M. Farooqi, who beard the bail application. At that time it was conceded by the State Counsel that the notification conferring the powers of a Special Judge on the trial Magistrate was published in the official Gazette dated the 18th April 1970. Evidence as is apparent from the record, had concluded on 20th March 1970, I e. Before the issuance of this notification and only the judgment was announced on 23-4-1971. During the hearing of this appeal I have again verified this fact from the office of the Advocate-General and the position is stated to be the same.
6. The Provincial Government in exercise of the powers conferred by subsection (1) of section 3 and subsection (1) of section 4 of the Pakistan Criminal Law Amendment Act, issued Notification No, Judicial I-3(3)/59, dated the 18th April 1970 respecting appointment of Special Judges. It is in general terms and reads as follows :- "In exercise of the powers conferred by subsection (1) of section 3 and subsection (1) of section 4 of the Pakistan Criminal Law Amendment Act, 1958 (Act No, XL of 1958), in its application to the Province of West Pakistan in the partial modification of the Government of West Pakistan Home Department Notification No, Judicial I-3(3)/59, dated the 22nd December 1966, the Governor of West Pakistan is pleased to appoint every Additional Deputy Commissioner (General) who has for a period of not less than ten years held a judicial office in Pakistan, to be Ex Officio Special Judge within his respective District for the trial of offences under the said. Act."
7. This notification was in partial modification of the Government of West Pakistan Home Department Notification No, Judicial 1-3(3)/59, dated the 22nd Dezember 1966. In para. 3 of this notification every District Magistrate and Additional District Magistrate who had exercised either the powers of a Magistrate 1st Class for not less than 10 years or powers under section 30 of the Code of Criminal Procedure for not less than 3 years were appointed Ex Officio Special Judges within their respective District for the trial of offences under the Act. In the presence of this notification I am not persuaded to accept the arguments of the learned counsel that the Additional District Magistrates who tried the appellant's case were not invested with the powers of a Special Judge unless it is proved that any of the Magistrate had not exercised either the powers of a Magistrate 1st Class less then 10 years or powers under section 30 of the Code of Criminal Procedure for a period of 3 years. In the absence of any such proof presumption under the law would be that the trial Courts had the jurisdiction to try these cases.
8. The next contention of the learned counsel is that according to the prosecution story appellant committed different acts of misappropriation on different occasions. He received the alleged amounts from different persons on different occasions, and in some cases he received the amount from the Treasury and had misappropriated the same as such his trial is vitiated on the ground of joinder of charges.
9.Section 222 (2), Cr. P. C., says When the accused is charged with criminal breach of trust or dishonest misappropriation of money, it shall be sufficient to specify the gross sum in respect of which the offence is alleged to have been committed and the dates between which the offence is alleged to have been committed, without specifying particular items or exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of section 234."
Section 234, Cr. P. C., enables the joint trial of three offences of same kind committed within the space of twelve months. Reading these sections together, the meaning should be that if three offences consolidated, as envisaged by section 222 have been committed within twelve months, they can be tried under section 234.
10. Learned counsel for the respondent argued that as the charge was under section 409. P. P. C., it was legally permissible to lump together all cases of breach of trust occurring within one year and to treat the whole as a charge of one offence.
11. The general rule stated in section 233 is that for every distinct offence there shall be a separate charge. The exceptions are stated in section 222 and the sections following section 233. From the plain reading of these sections it is clear that the misappropriation in respect of each of the item would be a distinct offence in each case. Three of them however could be tried jointly under the Exception of section 233, Cr. P. C., as provided by section 234, Cr. P. C.
12. In my view, this irregularity has occasioned the miscarriage of justice and is not curable under section 537, Cr. P. C. Reliance is placed on auk= Rasool v. The State (1) and Muhammad Din and another v. The Crown (2). In Ghula'n Rasool's case it was held that t "Now, it appears to me to be plain that the misappropriation in respect of each of the aforesaid four items would be a distinct offence in each case. Three of them, however, could be tried jointly under the Exception to section 233, Cr. P. C., as contained in section 234, Cr. P. C. This provides for the trial of three offences of the same kind committed within the space of 12 months at one trial.
Therefore, if the present trial had merely been upon a charge of section 406 even then this trial would be bad because more than three offences had been joined together."
13. As a result of the discussions made above, I have no option but to remand this case to be tried by a competent Court according to the provisions contained in section 222 read with section 234, Cr. P. C. I woul like to add that the alleged misappropriation relates to the years 1962 and 1963 and the trial concluded on 23-4-1971. This Sword of Damocles had been hanging on appellant's head for the last fifteen years, therefore, the trial Court will conclude this matter expeditiously. The accused is on bail He shall remain on bail till 3rd September 1977, when he will file fresh suret bond.
14. As a result, this appeal is accepted and the case is remanded to the Sessions Judge, Jhelum, who will entrust it to any Special Judge, Anti-Corruption for fresh trial. {{FOOT NOTE}}
(1) PLD 1965 Kar. 189 (2) PLD 1952 Lah. 660 {{FOOT NOTE}} revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.