MUHAMMAD NAWAZ ABBASI, J.---The State through Deputy Prosecutor-General, National Accountability Bureau, Camp Office, Karachi, has preferred the above 11 criminal petitions against the judgment dated 3-5-2002 passed by a Division Bench of High Court of Sindh at Karachi by virtue of which four criminal accountability appeals and seven criminal revisions arising out of the judgment/orders passed by the Accountability Court at Karachi in references bearing Nos. 12 to 18 and 20 to 23 of 2001 filed by the Chairman, National Accountability Bureau under section 18(g) read with section 24(b) of the National Accountability Bureau Ordinance, 1999 against the respondents and others. This single judgment shall dispose of all these petitions involving common questions of law and facts.
2. The relevant facts in the background giving rise to the above petitions are that different pieces of land were given to the different persons on lease for a period of 30 years for Poultry Farming in various Dehs of District Malir, Karachi, by the Deputy Commissioner, Malir. Subsequently, the lessees of the land in question moved separate applications to the then Chief Minister, Sindh, Syed Abdullah Shah for conversion of their poultry farming leases into industrial/commercial and residential leases for 99 years in relaxation of the existing policy. The Chief Minister sent these applications to Ramesh M. Udeshi, the then Secretary, Board of Revenue (Land Utilization) Sindh, respondent herein, for favourable action. The respondent prepared a summary containing recommendations for conversion of the leases in question under section 10(1) of Colonization of Government Lands (Sindh) Act, 1912, in relaxation of existing policy/Rules and also recommended for reduction in the prescribed lease money of Rs,50,000 to Rs,25,000 per acre. The summary was approved by Syed Abdullah Shah, the then Chief Minister, Sindh and in consequence thereto, the conversion of 26 leases mentioned in the summary was allowed. The Deputy Commissioner, Malir, on the direction of respondent got completed the formalities from the concerned department for execution of lease agreements and finalized the transaction of conversion of leases in implementation of the order of Chief Minister. Subsequently. On the basis of a complaint that a huge loss was caused to the State Revenue in the conversion of leases, an inquiry was ordered to be conducted and initially the case was investigated under Ehtesab Act, 1997 but subsequently a reference under section 18(g) of National Accountability Bureau Ordinance, 1999 containing the allegation of misuse of powers was filed against Ramesh M. Udeshi, the then Secretary, Land Utilization, Syed Abdullah Shah, the then Chief Minister, Sindh and others before the Accountability Court No,1, Sindh, Karachi. The respondent upon conclusion of the trial was convicted and sentenced and the learned trial Judge while departing with the judgment observed that the case was outcome of a summary submitted for conversion of 26 leases of Poultry Farming into commercial/industrial and residential but reference was sent only against the official accused alongwith three beneficiaries namely, Abu Bakar, Muhammad Saleh and Haji Sachal Muhammad, and that Chairman, NAB may examine the matter to fix the liability of remaining lessees, who were equally responsible for causing loss to the public exchequer. In pursuance ofthe above observation, the Chairman, NAB filed separate references against each beneficiary and in all the references Ramesh M. Udeshi, the then Secretary, Board of Revenue (Land Utilization), Sindh and Syed Abdullah Shah, the then Chief Minister, Sindh were made accused. The charge in Reference No,17 of 2000, in which Ramesh M. Udeshi, was convicted vide judgment dated 7-10-2000 was framed asunder:-- "IN THE ACCOUNTABILITY COURT NO.1 PROVINCE OF SINDH Before: Dr. Qamaruddin Bohra Reference No,17 of 2000 The State v. Syed Abdullah Shah and 2 others...Accused. I, Dr. Qamaruddin Bohra, Judge Accountability Court No,1, Sindh at Karachi do hereby charge you accused. CHARGE
(1) Ramesh M. Udeshi, Ex-Secretary (LU) That absconding accused Haji Sachal Muhammad moved undated application for conversion of 16 acres of land having grant of temporary lease for 30 years for Poultry Farm in NA Class 26, Deh Rehri, Tapo Ibrahim, Hyderi, District East/Malir, into a lease for 99 years for industrial/residential/commercial purpose at the rate of Rs,25,000 per acre in relaxation of policy/ban to absconding accused Syed Abdullah Shah who made an endorsement on 15-1-1994. Conversion allowed in relaxation of policy and existing ban That you accused Ramesh M. Udeshi in connivance with absconding accused Syed Abdullah Shah and to favour the absconding accused Haji Sachal Muhammad floated a joint summary of 26 acres dated 20-1-1994 in violation of law instructions and also in flagrant disregard of the Sindh Government Rules of Business, 1986, issued conversion Order No,PS/MBR/(LU)/94/94, dated 30-1- 1994 in violation of the existing ban and also informed the Deputy Commissioner, District Malir under instructions of you accused Ramesh M. Udeshi issued letter to Mukhtiarkar Malir giving the list of 25 persons including the name of the absconding accused Haji Sachal Muhammad and illegally benefited by the said conversion. That the land under reference was dishonestly disposed of by you accused Ramesh M. Udeshi and absconding accused Syed Abdullah Shah by allowing conversion as public functionaries as at away price Rs,50,000 per acre, causing colossal loss to the Public Exchequer asat the relevant time the market value of the land in question was Rs,4,00,000 and thus in surreptitious and dishonest deal in collusion and connivance an illegal loss to the tune of Rs,56,00,000 was caused to the State by corruption and corrupt practices provided illegal benefit to absconding accused Haji Schal Muhammad by misuse of authority being holder of public office committed offence/offences punishable under section 10 of the National Accountability Bureau Ordinance, 1999 within the cognizance of this Court. And I do hereby direct that you accused Ramesh M. Udeshi be tried by this Court on the aforesaid charges. Given under my hand and seal of the Court on this 31st day of May, 2000.
(Sd.)
Dr. Qamaruddin Bohra, Accountability Judge, Court No,1, Karachi."
3. The respondent Ramesh M. Udeshi moved separate applications under section 403, Cr.P.C. In the references which were still pending in trial before the Accountability Courts Nos.l and IV, Sindh, Karachi for his discharge from .The said references on the ground that more than one trial for the same charge was not legal and on failure of the said application he by way of filing the separate criminal revision petitions in the references in question approached the High Courts of Sindh at Karachi for interference in the matter. The High Court disposed of all these petitions and the criminal appeals filed by the respondent against the conviction and sentence awarded to him by the Accountability Court through the consolidated judgment impugned in the present petitions.
The case of the respondent before the High Court was that the approval of 26 leases through the combined summary would constitute a single transaction and it being not a case of separate transaction of each lease the filing of more than one reference and framing of separate charge in each reference on the basis of same facts against him was not legal. The plea of the prosecution was that notwithstanding the approval of all leases through a joint summary, each lessee having committed a cognizable offence would be liable to be proceeded against individually and consequently there would be no legal bar in filing the separate reference in respect of each lease of separate trial of the accused named therein. Precisely the question was whether all references being outcome of the single transaction the official accused and the beneficiaries of all leases would be tried jointly or each lease would constitute a separate transaction and there was no legal bar in holding the separate trial in each reference. It was held by the High Court that since a proposal for grant of 26 leases of Government land to different persons was approved through the joint summary, therefore, it would constitute a single transaction for the purpose of a joint trial of all the accused and separate trial in each reference would not be legal. The High Court thus while maintaining the conviction and sentence awarded to the respondent in Reference No,17 of 2000 held that the remaining trials on the basis of same facts being violative of law could not proceed against the respondent and disposed of the revision petitions and appeals accordingly.
4. The State being dissatisfied with the consolidated judgment rendered by the High Court in appeals and revisions has assailed the same before this Court through the present petitions.
Learned Deputy Prosecutor-General, NAB, has contended that since the official accused by misuse of the powers granted 26 leases by extending undue favour to the lessees, therefore, notwithstanding the approval of all the leases through a joint summary, the law would not prohibit the separate trial in each reference and that the learned Judges in the High Court were misdirected in law in coming to the conclusion that it being a single transaction more than one trial of the respondents was not legal.
5. The sole question requiring determination before us is as to whether different leases forming part of the same summary would constitute separate transactions or it was a case of single transaction and all the accused would be tried jointly at one trial. There is no cavil to the proposition that if same kind of offences are committed in separate transactions, the joinder of the charges in such cases would be in contravention of law but if the similar nature of offences are committed in the same transaction a joint charge would be framed. It is provided in section 233, Cr.P.C. That in case of distinct offences, separate charge should be framed and each charge should be tried separately except in the cases mentioned therein whereas under section 235, Cr.P.C. All the offences which are committed in the same transaction should be charged together. Sections 233 and 235, Cr.P.C. Provide as under:- "233. Separate charges for distinct offences.--For every distinct offence of which any person is accused there shall be a separate charge and every such charge shall be tried separately, except in the cases mentioned in sections 234, 235 and 239."
"235. Trial for more than one offence.--(1) 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 at one trial for, every such offence.
Offence falling within two definitions.--(2) If the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the person accused of them may be charged with, and tried at one trial for, each of such offences.
Acts constituting one offence, but constituting when combined a different offence.--(3) If several acts, of which one or more than one would by itself or themselves constitute an offence, constitute when combined a different offence, the person accused of them may be charged with, and tried at one trial for, the offence constituted by such acts when combined, and for any offence constituted by any one, or more, of such acts.
(4) Nothing contained in this section shall affect the Pakistan Penal Code, section 71."
7. It is evident from the above provisions that series of acts connected together and forming part of same transaction would constitute a single transaction while the separate transactions would consist upon independent facts and constitute separate offences and if more than one offender committed the same offence in the same transaction all would be charged together at the joint trial. The general law is that if several persons committed the same nature of offence relating to the same transaction, they should be tried jointly but to ascertain the question as to whether a case should be tried jointly or not, the Court must look into the nature of accusation set forth in the charge and if the accusation is that several persons committed the same offence in the course of same transaction, it would be the case of joint trial. The continuity of purpose or design or continuity of action with different acts, can be regarded as part of the same transaction and obviously the various acts may form one series and if several acts are responsible for producing particular result, the same may also constitute one series but if there is no identity or commonality of purpose, and separate offences of the same kind were committed, it would not form part of the same transaction for the purpose of joint trial. The acts of two sets of accused with commonality of purpose if are so intimately connected with each other that two acts necessarily are the part and parcel of same transaction, all the offenders in such a case should be tried jointly. The commonality of the purpose and design and continuity of an action are sine qua non to treat the series of acts as one and same transaction and thus if more than one person committed same.Offence in the course of same transaction they would be charged together and tried jointly.
In the present case 26 leases were approved through a joint summary and all the beneficiaries would be responsible of committing the same offence arising out of the same transaction and notwithstanding the individual responsibility of all the beneficiaries, the separate trial of the respondent in each reference by. Splitting up one transaction into number of transactions would not be legal in the light of rule that no one should be vexed twice for one and the same cause.
8. In nutshell the general law is that if a person is charged for committing several offences of similar nature in the same transaction, the joint charge shall be framed and if several persons committed same offence in the same transaction they should be tried jointly, but this rule is subject to the provisions of section 233, Cr.P.C. Wherein it is provided that for every distinct offence there shall be separate charge and the same shall be tried separately except in the cases in which the Code provides otherwise. The concept of joint trial is based on solitary principle that no prejudice should be caused to the accused in framing of separate charge and holding separate trial unless it is essentially required under the law. The provision of section 233, Cr.P.C. Being an enabling provision would not make it incumbent on the Court to frame separate charge and hold separate trial on the basis of same facts by splitting up the one transaction into number of transactions in terms of the rule laid down in the said provision that for each distinct offence separate charge should be framed. Be that as it may, the present case would be governed by the provision of section 235, Cr.P.C. Wherein it is provided that in the cases in which more than one offence is committed in the same transaction by more than one person all should be tried jointly.
Thus the mere fact that 26 different leases in the name of different persons were approved, would not be sufficient to hold that there was no commonality of purpose or that it was more than one transaction forming part of the joint summary, therefore, there can be no exception to the view that the framing of the separate charge against the respondent in each reference on the basis of same fact would be violative of the principle of law embodied it section 403, Cr.P.C. And Article 13 of the Constitution of Islamic Republic of Pakistan, 1973.
10. For the reasons stated above, we do not find any substance in these petitions 'which are accordingly dismissed, leave is refused.