P L D 1958 (W (PLP)

This revision application has arisen out of the judgment of the VIth Additional City Magistrate, Karachi whereby the appel lant was convicted under sections 304‑A and 337, P. P. C. to two years' R. r. and fine of Rs. 500 respectively, and in default of payment of the fine to R. I. for three months. The matter was taken up in appeal but the same was dismissed by Syed Iftikhar Hussain, Additional Sessions Judge, Karachi on 30th November 1956. The applicant has challenged the findings of the learned trial and appellate Court on various grounds, but his learned counsel has not pressed all the grounds except ground No. 12, namely that the applicant's trial was illegal as it offends the provisions of section 239, Cr. P. C. It is contended that the applicant should not have been tried with co‑accused Qadir Bux as the offences committed by them were separate and did not arise out of the same transaction. The facts of this case are simple. The applicant on the 21st of June 1955 at about 10‑15 a.m. was driving his bus bearing No. KAP 5568 on the main road towards Drigh Roard. When the bus reached near the Nursery a rickshaw entered on the main road from one of the lanes on the left hand side of the bus. This rickshaw was going in the opposite direction towards the city. It appears that the bus driver did not notice the rickshaw until it was in the middle of the road. The bus driver applied brakes but could not stop the bus. It collided with the rickshaw and came to a stop on the right hand side of the road fifty feet away from the point where the brakes had been applied. As a result of this collision Mst. Aisha, an occupant of the rickshaw died on the spot. Her two daughters sustained. injuries and were taken to the hospital. Later on Mst. Noor Jehan, one of the injured girls, died in hospital. The drivers of the rickshaw and the bus were arrested on the spot, challaned, tried and convicted by the trial Magistrate jointly for committing offences under sections 304‑A and 337, P. P. C. There is no dispute before me about the correctness of the findings arrived at by both the subordinate Courts. Both of them have come to the conclusion that both the drivers coming from opposite directions drove their vehicles in a rash and negligent manner and endangered the human lives and personal safety of others which resulted in the death of two persons and caused injury to another person: Thus, the only question for consideration, in this application is whether the two accused viz. Ali Khan and Qadir Bux could be tried for offence under sections 304‑A and 337, P. P. C. jointly in one trial. The learned counsel for the applicant has invited my attention to section 239 of the Criminal Procedure Code and has vehemently urged that the offences for which the applicant and the co‑accused are charged were not committed in the course of the same transaction and the joint trial was illegal under section 239 (a) of the Criminal Procedure Code. Section 239 (a)‑reads as under :‑ "

239. The following persons may be charged and tried together, namely :‑ (a) persons accused of the same, offence committed in the, course of the same transaction". The learned counsel has laid great stress on the fact that in order to bring the case within the term "offences committed in the course of the same transaction" there should be a community of purpose and design. He urged that the common purpose and design of both the accused were not the same, they were not driving their vehicles with the idea of colliding with each other, that the collision between the two vehicles was accidental and therefore the alleged offences cannot be said to have arisen out of the same transaction. The learned counsel, in support of his contention, placed reliance on two decisions of the Indian Courts reported in Edward Top and another v. State (A I R 1954 Travancore 4) and Umar Bin v. State (A I R 1954 Saurashtra 15). In A I R 1954 Travancore 4, the learned Judges were considering the case of the collision of two cars. The two accused were driving the two cars in opposite directions and were tried for offences under sections 279 and 336, Penal Code as also under sections 304‑A and 337, P. P. C. They came to the conclusion that so far as the offences under sections 279 and 336, Penal Code were concerned; they cannot be considered to be offences arising out of the same transaction and held their joint trial as illegal, set aside their conviction and ordered retrial. The learned Judges remarked "Whatever might be said of the collision and its consequ ences, proximate or remote, we cannot bring ourselves to hold that .the driving of his car by accused 1 on the one hand, in a rash or negligent manner so as to attract the Penal provisions in sections 279 and 336 and similar conduct with his car by accused 2 on the other constituted a "same transaction " within the meaning of S. 239 (a) or S. 239 (d), Criminal P. C. Those are distinct acts uncon nected with each other committed by different persons at different places and there is no warrant for the delinquents being jointly tried for those acts." There can be no dispute with this conclusion as in my opinion also the offences falling within sections 279 and 336 of the Penal Code cannot be considered to arise out of the same trans action as they were the independent acts of the drivers of the A two vehicles, were anterior to the collision and in these circum stances those offences should have been tried separately. There are certain observations in this decision in which it is suggested that the trial of the two accused under sections 304‑A and 337 of the Penal Code should not have been held jointly but held separately. This view, however, is not based on any consideration of the provisions of law but on the equitable principle that a joint trial of two persons is not desirable when each tries to throw the blame and responsibility upon the other. The learned Judges in this case referred to a decision in Balliah v. Emperor (1931 M W N 556) where a similar question was con sidered. This case has not been officially reported but the observations in respect of the question in issue have been cited in the judgment itself. The view of the learned Judges of the Madras High Court on the question under consideration is as under :‑ One point was taken and that was that there had been a misjoinder of parties because it was urged that the collision was a result of separate acts of the accused and it could not be said that it arose out of the same transaction and it was urged that in order to constitute the same transac tion the parties engaged in it must have a similar or identical purpose in view. That no doubt is one very good test to apply when a question such as this is under consideration ; but if two or more persons commit the same offence in the same transaction they can be tried together. The whole question is, what is the same transaction. If the test in all cases of what the same transaction is to be that persons must be engaged in a similar or identical purpose then in this case applying that test there has been a wrong joinder, but we are satisfied, that is not the only test nor is this case the right test to apply. This is an unusual case and we see no reason for considering the, matter from that point of view and applying the same test as has been applied in some cases. This was a motor collision and the result of the collision was the death of six persons. It was one transaction, namely the collision and we are quite satisfied that both accused can be tried together as indeed they were. Therefore that contention fails. The learned Judges in the Travancore case have not dissented from the view that the collision was one transaction, but have observed that "consideration more fundamental than convenience of the Court and the prosecution should have dictated to the learned trial Judge that separate trials of the two accused persons had to be held even m respect of the offences under Ss. 304‑A and 337." In A I R 1954 Saurashtra 15 also the drivers of the two motor vehicles were tried together under sections 279, P. P. C. and 116, Motor Vehicles Act and under Ss. 304‑A and 338, Penal Code. The question whether a joint trial under sec tions 304‑A and 338, P. P. C. was good or bad was left open since the case was decided on other grounds. The learned Judges did not pronounce a final opinion oil that question. They, however, came to the conclusion that the offences under section 279, P. P. C. and section 116, Motor Vehicles Act cannot be said to have been committed in the course of the same transaction that the two accused could not have been tried together in respect of the same transaction, and held the joint trial in respect of sec tion 279, P. P. C. and section 116, Motor Vehicles Act as illegal and ordered the accused to be retried. In my opinion the decision relied upon by the learned counsel for the applicant does not support the‑contention that the trial in the present case under sections 304‑A and 337, P. P. C. is in any way hit by the provisions of section 239 (a), Cr. P. C. They are one of those class of cases where the accused were tried for offences relating to a period anterior to ‑the collision and since the Court came to the conclusion that joint trial for such offences was illegal, they thought that the two accused may also be tried separately for offences under sections 304.x.1 and 337 of the Penal Code. On the contrary there are decisions of the Indian Courts which lay down that offences under sections 304‑A and 337 of the Penal Code can be said to arise out of the same transac tion if the rash and negligent driving has resulted in collision and the death of certain persons. I have already referred to a case reported in Balliah v. Emperor. The relevant portion of that judgment has already been reproduced above. In In re : van Kayalpati Gopalarao and another (A I R 1956 Andhra 21) a similar ques tion also arose. In that case the learned Judges agreed with the view expressed in the Madras case and came to the conclusion that offences under Ss. 304‑A and 337, P. P. C. arose out of the same transaction and that two drivers responsible for it could be tried together without contravening the relevant provi sions of the Penal Code. They observed "On the question whether a collision of this sort could be said to have arisen out of the same transaction, or not, the view expressed by the Madras High Court in `Balliah v. Emperor', 1931 Mad. W N 556 is that it is one transaction and that the two drivers responsible for it could be tried together without contravening the relevant provisions of the Code. It was stated there that in order to form the `same transaction' it was not necessary that the two persons must be engaged in a similar or identical purpose. It is pointed out that the community of purpose is not the sole test though that might be a good one. Mr. Sayee argued that the decision in 1931 Mad. W N 556 is not correct and requires reconsideration and called in aid a judgment of one of us reported in Bodasingiramulu v. State of Andhra 1955 Andhra W R 268 to support the contentions of his. We do not think that that case, is of any help to him. What was ruled in that case was tat when two incidents that took place at different places and at different times are sought to be connected as forming one transaction it should be established that there was community of purpose and con tinuity of action. The dictum in that case cannot govern a case of collision between two buses. We are in agreement with the opinion expressed by the Bench in 1931 Mad. W N 556." I have given my careful consideration to the points raised in this application and L am clearly of the opinion that, the question whether a series of acts are so connected together as to form the same transaction is purely a question of fact in each parti cular case and the area of facts covered by the expression varies with the circumstances of each case. This expression is incapable of exact definition. To ascertain whether a series of acts are parts of the same transaction, it would be essential to see whether they are linked together to present a continuous whole, that "they are related to one another in point of purpose, or as to cause and effect, or as principal and subsidiary acts as to denote one continuous and completed action." Their Lordships of the Supreme Court in a recent case reported in Md. Mosaddar Hoque and another v. The State (P L D 1958 S C (Pak.) 131) have also expressed the same view. Their Lordships observed :‑ "It is thus clear that both in the accusation and evidence there was nothing to link the acts alleged against the appellants into the same transaction. 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." It will thus be necessary to find that one act is related to the other. If they are related in point of purpose, as cause and effect or as principal or subsidiary acts, so as to constitute one continuous act, they shall be 'considered to form part of the' same action. Judging the facts of this case on the above test, it is abundantly clear that the collision between the motor bus and the rickshaw was the result of the rash and negligent driving of the drivers of the respective vehicles and was the cause of the death of two persons and injury to another person. In my opinion the collision and death arose out of the same transaction and therefore the trial of the applicant under sections 304‑A and 337, P. P. C. was perfectly legal and was not at all hit by the provi sions of section 239 (a), Cr. P. C. 1 may also observe that the legal point under consideration was for the first time raised in this application and was never urged before the learned trial Magistrate and the appellate Court. For the reasons given above, I dismiss the application. Non‑bailable warrants to issue against the applicant Ali Khan, who is absent to serve the remaining sentence. A. H. Application dismissed.