KHALID SAEED and anothers vs THE STATE

' Khalid Saeed and Muhammad Ikram appellants were tried in the Court of learned Special Judge Anti-Corruption, Lahore in the criminal case registered against them vide F.I.R. No,92, dated 15-9- 1998 for offence under section 5(c) of the Prevention of Corruption Act, at Police Station, DACE Lahore. The trial Court vide its judgment, dated 21-12-2000, convicted the appellants under section 5(c) of the Act and sentenced them as under---

(i) Three years R.I. Each with a fine of Rs,10,000 and in default of payment to undergo further R.I. For four months each.

(ii) forfeiture of House No, 392, Block-A, Gulshan Ravi Scheme Lahore, owned by Khalid Saeed appellant and House No,60/3-A and 7/3 Angoori Bagh Scheme owned by Muhammad Ikram appellant.

2. The appellants preferred a joint appeal before this Court under section 410 of the Cr.P.C.

Challenging their conviction and sentence.

3. The appellant's learned counsel strenuously urged that joint trial of the appellants pertaining to an offence which had taken place on different places and dates is violative of the provisions of section 239 of the Cr.P.C. That the alleged offences do not pertain to the same transaction and could not be tried jointly; that the illegality committed by the trial Court is not curable under section 537 of the Cr.P.C. That both the appellants ought to have been separately tried. In support of his contentions he placed reliance on the judgments in the case of MD. Mosaddar Hoque and MD Abdul Rouf v. The State (PLD 1958 SC (Pak.) 131), Muhammad Abbas v. The State (1973 SCM R 542), Hakim Muhammad and another v. The State (NLR 1988 Crl. 535) and Muhammad Ishaq v. The State (1991 PCr.LJ 1836). The learned Law Officer has candidly stated that the joint trial of the appellants is illegal in view of the provisions of section 239 of the Cr.P.C. He agrees that the appeal be allowed and the case be remanded with a direction for separate trial of the appellants.

4. As per the prosecution case both the appellants had indulged in corruption and acquired property through ill-gotton money and were living beyond their known means of income.

Muhammad Khalid Saeed appellant No,1 was allowed to have got constructed a big Bungalow bearing No,392-A in Gulshan Ravi Scheme Lahore apart from being the owner of a Jacket Manufacturing Factory at Lahore. Muhammad Ikram appellant No,2 is alleged to have got constructed Bungalow No,703 Angoori Bagh Scheme, Mughal Pura, Lahore. The prosecution brought on the record Exh.P.C. To Exh.P-F to show that Khalid Saeed appellant had purchased the plot from its original owner Muhammad Ishtiaq. The prosecution also brought on record evidence to show that House No,7/3 and House No,60/3-A Angoori Bagh Scheme were owned by Muhammad Ikram appellant No,2 Obviously, the above referred properties were acquired by the appellants on different occasions independently. The evidence to substantiate the allegations against the appellants is also different. Therefore, it cannot be said that the appellants had committed the offence in the course of same transaction. It appears that the trial Court was also conscious of the above facts and mentioned at page 3 of the judgment "Muhammad Ikram accused was idependently charged of acquiring Bungalow No,60/3 Angoori Bagh Scheme while Khalid Saeed accused was independently charged of acquiring Bungalow No,392-A Gulshan-eRavi Scheme". Despite that, the Court illegally proceeded to hold joint trial of the appellants which caused prejudice to them in their defence.

5. In the case of Muhammad Muddassir Haq v. The State (PLD 1958 SC 131) the Hon'ble Supreme Court of Pakistan was pleased to hold that joint trial of two persons who were alleged to have taken bribe in the course of registration of the same document was illegal. The relevant part of the judgment is reproduced as under:--- "It cannot be said of either act that it was a cause or effect of or the occasion for the other. On the other hand, each was a transaction by itself. There was no common object in the sense that one helped the other in receiving an illegal gratification of Rs,15 for himself and the object of the Moharrir was to receive a rupee for himself. In the circumstances the joint trial of the appellants was illegal. No question as to whether prejudice was caused or not need be considered as illegality has resulted from adopting a mode of trial prohibited by the Code and it cannot therefore, be cured under section 537, Criminal P,C."

' In the case of Muhammad Abbas v. The State (1973 SCM R 542) the Hon'ble Supreme Court was pleased to hold that joint trial of two persons in respect of offences relating to two transactions was illegal and that the irregularity in trial was not curable under section 537 of the Cr.P.C. In the case of Hakim Muhammad and others v. The State (1988 MLD 2393(1)) it was held that joint trial of drivers of two different trucks for offence under sections 304-A, 279 and 338, P.P.C. Was illegal. The Court set aside the conviction of the appellants and remanded the 'case to the trial Court with a direction that it would ask the concerned police to submit separate challans against the two drivers. In the case of Muhammad Ishaq v. The State (1991 PCr.LJ 1836) it was held that where the material on the record showed that the accused was not on accomplice of or in league with the other accused either in commission of the offence or removal of the dead body from the place of occurrence to another place, the offences under sections 302 and 201, P.P.C. Being different and independent of each other were to be tried separately against the respective accused persons.

6. Thus, keeping in view the provisions of section 239 of the Cr.P.C. And the above referred judgments/precedents, I accept this appeal and set aside the appellants' conviction and sentence under section 5(c) of the Prevention of Corruption Act, with the direction that the State will prepare separate challans against both the appellants and submit the same for fresh trials separately before the Court of competent jurisdiction.