P L D 1955 Lahore 70 (PLP)

SHABIR AHMAD, J.‑On the night between the 18th and 19th March 1953 an incident which occurred in village Halla Khichhian in the district of Sheikhupura resulted in two men being killed, a woman receiving a gunshot injury, a house being burnt and some other offences being committed. A report about this incident was made the next morning at about 6 a.m. at Police Station Syedwala by Muhabbat, who had seen part of the incident. It was mentioned in the report that the culprits were Bashir, his brother Nazir, their cousin Bhai Khan, and a stranger. After investigation the police challaned Bashir, Nazir and Bhai Khan for committing the murders of Said and Ahmad, for attempting to murder Mst. Sattan, for committing the offence of mischief by setting fire to the house of Ahmad, one of the murdered men, and for doing away with the evidence of one of their crimes by setting the dead body of Ahmad on fire. After hearing the evidence produced by the prosecution, Mr. Anwar Shariq, Magistrate 1st Class, who held the enquiry under Chapter XVIII of the Code of Criminal Procedure, committed Bash it, Nazir and Bhai Khan to stand their trial in the Court of Sessions on the following charges :‑ (1) under section 302/34 P. P. C. for causing the death of Said ; (2) under section 302/34 P. P. C. for causing the death of Ahmad ; (3) under section 436/34 P. P C. for burning the house of Muhabbat, a brother of Ahmad deceased ; and (4) under section 201/34 P. P. C. for setting fire to the dead body of Ahmad. When the case was taken up by Mr. M. M. Adam Khan, Additional Sessions Judge, Sheikhupura, he on the request of the Public Prosecutor amended and added to the charges framed by the committing Magistrate and gave them the following form :‑ I Malik Muhammad Aslam Khan, M. A. (Cantab.), Barrister‑at‑Law, Additional Sessions Judge, Lahore at Sheikhpura, hereby charge you Bashir, Nazir and Bhai Khan accused as follows :‑ (1) That you, along with an unknown person, who was armed with a gun, on the night between 18th and 19th March, 1953, in village Halla Khichian, gave dangerous injuries to Said, which resulted in his death, in the further ance of the common intention of you all, when Bashir accused was armed with the toka (P. 2), Nazir accused with the Pistol (P. 10), and Bhai Khan accused with kassi (P. 1), and you thereby committed an offence punishable under section 302/34 P. P. C. and within my cognizance. (2) I further charge you Bashir, Nazir and Bhai Khan as follows :‑ That, on the same night and in the same village, at or near about the same time after murdering Said, you, along with an unknown person, did commit the murder of Ahmad (deceased), by causing his death, in the furtherance of the common intention of you all, when Bashir accused was armed with the toka Ex. (P. 2), Nazir accused was armed with the pistol (P. 10), and Bhai Khan accused was armed with a kassi (P. 7 ), and you thereby committed an offence, punishable under section 302/34 P. P. C. and within my cognizance. (3) I further charge you Bashir, Nazir and Bhai Khan as follows :‑ That you, along with an unknown person, at the same time and place in the furtherance of the common intention of you all set fire to the kotha of Ahmad deceased, burning the said kotha and the goods stored therein and you thereby committed the offence of mischief, punishable under section 436/34 P. P. C. and within my cognizance. (4) I further charge you Bashir, Nazir and Bhai Khan that, on the same‑night, and at the same time and place, after you had murdered Ahmad deceased, you, along with an unknown person set fire to his dead body, in the furtherance of the common intention of you all, with a view to screen yourselves from the punishment of the offence of murder, by destroying the evidence thereof, and you thereby committed an offence, punishable under section 201/34 P. P. C. and within my cognizance. (5) I further charge you Bashir, Nazir and Bhai Khan accused as follows :‑ That on the same night, and in the same village, you attacked Mst. Sattan P. W., in the furtherance of the common intention of you all when Nazir accused fired at her from the top of her husband's kotha, with such intention or knowledge that, if she had died, you would have been guilty of murder and you thereby committed an offence punishable under section 307/34 P. P. C. and within my cognizance. (6) I further charge you Bashir, Nazir and Bhai Khan that, on the same night, and in the same village, in the furtherance of the common intention of all of you, you entered forcibly into the house of Sonatta P. W., with the intention of murdering him, while you were armed with deadly weapons and you are guilty of an offence punishable under section 449/34 P. P. C. and within my cognizance. (7) I further charge you Bashir, Nazir and Bhai Khan that, at the same time and place in the furtherance of the common intention of all of you, you forcibly entered the house of Sonatta P. W., wrongfully confined Alam Sher in the said Sonatta P. W's kotha and you thereby committed an offence punishable under section 342/34 P. P. C. and within my cognizance. (8) I further charge you that, on the same night and in the same village, in the furtherance of the common intention of all of you, you forcibly entered into the house of Mst. Amiran P. W's father (Anwar), while you were armed with deadly weapons, with a view to murder Anwar (the father of Mst. Amiran) and her brother and you thereby committed an offence punishable under section 449/34 P. P. C. (9) I further charge you Bashir, Nazir and Bhai Khan as follows:‑ That on the same night, and in the same village, you, along with an unknown person, in the furtherance of a common intention entered forcibly into the house of Ahmad deceased, while you were armed with deadly weapons, with a view to murder him and his brothers Muhabbat P. W. and Salabat P. W. and you thereby committed an offence punishable under section 449/34 P. P C. and within my cognizance. (10) I further charge you, that on the same night, at the same place and in the same village, you, along with another unknown person, in the furtherance of your common intention fired at Muhabbat and Salabat P. Ws., with the intention of murdering them, and you thereby committed an offence, punishable under section 307/34 P. P. C. and within my cognizance. (11) I further charge you Bashir, Nazir and Bhai Khan as follows :‑ That you, along with another unknown person, on the same night and in the same village having armed yourselves with deadly weapons, in the furtherance of your common intention forcibly entered into the house of Muhabbat Lambardar P. W. with a view there to look for Said deceased, whom you had earlier injured, and thereby committed an offence punishable under section 449/34 P. P. C. and within my cognizance. (12) I further charge you Bashir, Nazir and Bhai Khan accused as follows :‑ That, on the same night, and in the same village, you forcibly entered into the house of Shamun Kumhar, P. W., in the furtherance of your common intention, with a view there to murder Said deceased, who had run to that house, after having received injuries at your hands a little earlier, and you thereby committed an offence punishable under section 449/34 P. P. C. and within my cognizance. (13) That you, on the night between 7 8th and 19th March, 1953, in village Halla Khichian, having armed yourselves with deadly weapons, in the furtherance of the common intention of all of you, scaled on to the roof of the house of Muhabbat P. W. with a view to murder him and Mst. Sattan P. W., and you thereby committed an offence punishable under section 449/34 P. P. C. and within my cognizance. And I hereby direct that you be tried by me, on the said charges. and proceeded to try the appellants on those charges. The trial resulted in the acquittal of all the three accused on charge No. 12 and in the acquittal of Bhai Khan appellant on charge No. 13, but they were convicted of all the offences mentioned in the other charges though the conviction on charge No. 4 was only for an attempt. The. sentences imposed were as follows :‑ First and second charge each sentenced to death ; Third‑ charge each sentenced to ten years rigorous imprisonment ; Fourth charge each sentenced to two years' rigorous imprisonment for attempting to commit the offence mentioned in this charge ; Fifth charge Bashir and Nazir sentenced to ten years's rigorous imprisonment Sixth charge each sentenced to ten years' rigorous imprisonment ; Seventh charge each sentenced to one year's rigorous imprisonment; Eighth charge each sentenced to ten years' rigorous imprisonment. Ninth charge each sentenced to ten years rigorous imprisonment ; Tenth charge each sentenced to ten years rigorous imprisonment ; Eleventh charge each sentenced to ten years rigorous imprisonment ; Thirteenth charge Bashir and Nazir sentenced to ten year's rigorous imprisonment ; The learned trial judge ordered that all the sentences of imprisonment imposed by him shall come into effect only in the event of the sentences of death not being confirmed and were to run concurrently with each other. The learned trial judge has referred the case to this Court under section 374 of the Code of Criminal Procedure for confirmation of the three sentences of death passed by him and the three condemned men have presented a joint appeal against their convictions and sentences. The appeal and the reference for confirmation will be disposed ok by this order. Before I deal with the acts of the case it would be necessary to dispose of a point raised. by Mr. Hamid‑ud‑Din, the learned counsel for the appellants about the trial being in contravention of the law. After the learned counsel had argued the case on merits fob three days and had concluded his contentions on facts he contended that there had been misjoinder of charges which vitiated the trial and the judgment of the learned trial Judge should be set aside on that short ground. It is obvious that raising an objection to the joinder of charges by the trial Court at the end of the arguments was not the proper thing to do because if the point with regard to misjoinder of charges were to be held to have substance in it the three days spent in hear in the case on merits would have been entirely wasted. Without intending to say in what manner counsel should argue cases in appellate Courts I feel it necessary to mention that if a point of a preliminary nature which will make it unnecessary for the appellate Court to hear the case on merits arises, it is the duty of the counsel to raise that point first of all and not to keep it up his sleeve till the end. If a preliminary point is not raised till the conclusion of the arguments on merits it may be cue to its not having occurred to the counsel earlier which will be a regrettable enough state of affairs ; but if a counsel engaged on daily fees deliber ately postpones the raising of preliminary points to the very end‑of the hearing the matter is of a serious nature and will, in my view, amount to professional misconduct. The contention of the learned counsel for the appellants with regard to the misjoinder of charges was that the appellants were not accused of having jointly committed the thirteen offences in regard to which the learned trial Judge framed charges against them and, therefore, the joint trial of those thirteen offences ",as not allowed by law. The reply of Mr. C. M. Sharif, the learned Assistant Advocate General, with regard to this argument of the learned counsel for the appellants was that there was no misjoinder of charges as the three appellants and their unknown companion were accused of having committed all thirteen offences for which the three appellants were tried and that, at any rate accusation was immaterial as no part did not flow from the by the prosecution on the redo part irrelevant the purposes of the charges which were framed by the learned committing Magistrate or flowed from the accusation. In order that the contentions of the learned counsel for the parties may be properly appreciated, it is necessary to give a gist of the prosecution Case The appellants and the victims belonged to village Halla Khichhian but the appellants have all along been residing in Thatha Bohti which place, though in the area of village Hal)a Khichhian, is at a consider able distance from the main village. Fifteen or sixteen years before the present occurrence, Nura the father of Nazir and Bashir appellants, was murdered end Dulla, Mamura Khichhi, Said, Anwar, Sonatta, Muhabbat, Sadiq alms Sadu and Mamura Sambal were tried for that offence. The above -named Dulla and Mamura Khichhi were brothers, Sonatta and Anwar are the sons of Dulla and Muhabbat is the son of Mamura Khichhi. Muhabbat and Mamura Khichhi were acquitted by the Sessions judge who tried that case, while the others except Sadiq alias Sadu were acquitted on appeal. At the time of the murder of Nura, his sons Bashir and Nazir appellants were minors and the prosecution story in the present case is that in order to avenge the murder of the father Bashir and Nazir accompanied by their cousin, Bhai Khan, appellants, and an unknown person, went to village Halla Khichhian and entered the houses of the various persons accused of the murder of Nura in order to kill as many of the persons believed to be the murderers of Nura or their near relatives as they could. The culprits went first to the house of Said, son of Dulla, and causing him severe injuries with a toka and a kassi left him for dead. From there they proceeded to the house of Ahmad and his brother, Salabat, the sons of Mamura, where they found not only those two but their brother Muhabbat also, and two of the culprits fired at the three brothers but missed their targets. Ahmad, however, fell down or intentionally laid himself down on the ground on hearing the report of the firearms at which the appellants attacked him with toka and kassi and killed him. Thereafter, the culprits set fire to the thatched but of Ahmad and Salabat with a burning brand of reeds which Bashir appellant had brought with him, threw the dead body of Ahmad in the fire and proceeded to the house of Muhabbat where with a revolver shot Bashir appellant and caused an injury on the buttock of Mst. Sattan The culprits next went to the house of Anwar, son of Dulla, in search of Walla, son of Anwar, but did not find him there as his sister Mst. Amiran (P. W. 12) had made him run away when she saw the culprits approach their house. When going out of the house of Anwar, the culprits learnt that they had not succeeded in killing Said who had taken refuge in the house of Muhabbat Lambardar, his wife's brother, and they went to that house in order to find him. As, however, Said was not there they went to the house of Shamun Kumhar where Said was supposed to have gone but they did not find him there either. From the house of Shamun Kumhar the appellants proceeded to the house of Sonatta, son of Dulla. Sonatta was not present in his house but Alam Sher, his guest, was there and him they confined in the room of the house. After doing all this, the appellants and their unknown companion left village Halla Khichhian. As regards the charges framed by the learned trial Judge Nos. 1, 11 and 12 related to the attack on Said deceased and the search made for him thereafter. Nos. 2, 3, 4, 9 and 10 related to what occurred at the house of Ahmad, Nos. 5 and 13 concerned the firearm injury received by Mst. Sattan, Nos. 6 and 7 dealt with what occurred at the house of Sonatta while No. 8 was with regard to what transpired in the house of Anwar. Ahmad, as mentioned already, died on the spot but Said, who had escaped to a sugar‑cane field near‑by, breathed his last the next morning. The learned counsel for the appellants began his criticism of the charges by saying that as there was no oneness of the transaction in which the offence charged were said to have been committed, section 239 of the Code of Criminal Procedure had no application, but when it was pointed out to him that it is not the ultimate finding about the transaction but the accusation which is to decide whether or not section 239 of the Code of Criminal Procedure was applicable to a set of charges, he abandoned that argument and pro ceeded to contend that all the offences about which the charges were framed by the learned trial judge did not flow from the accusation and, therefore, the trial suffered from misjoinder of charges. It is now settled beyond question that it is not the ultimate result of the trial which decides whether or not a joint trial of more than one offence for which more than one person are sought to be made liable is allowed by law but the fact whether or not those persons are accused of having been jointly responsible for those offences, This has been laid down for a long time by about all the High Courts called upon to interpret section 239 of the Code of Criminal Procedure and by their Lordships of the Privy Council in Babulal Chaukhani v. King‑Emperor (AIR1938PC130) The general rule as enacted by section 233 of the Code of Criminal Procedure is that there should be a separate charge and a separate trial for each distinct offence committed by a single accused but there are some exceptions to this rule which will become clear from the wording of the section which reads as follows :‑ "

233. 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 case, mention ed in sections, 234, 235, 236 and 239". In the present case we are concerned only with section 239 of the Code of Criminal Procedure, the relevant part of which reads as follows :‑ "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 ; (b) persons accused of an offence and persons accused of abetment, or of an attempt to commit such offence ; (c) persons accused of more than one offence of the same kind, within the meaning of section 234 committed by them jointly within the period of twelve months ; (d) persons accused of different offences committed in the course of the same transaction ; (e) (f) . (g) . and the provisions contained in the former part of this Chapter shall, so far as may be, apply to all such charges" What has to be seen, therefore, is whether or not the appellants were accused of having committed the offences for which they were charged by the learned trial Judge in such circum stances as to make one trial with regard to all those offences permissible. The language of section 239 of the Code of Criminal Procedure makes it clear that accusation (the section does not use the term accusation.") is something which precedes the charge but nowhere in the Code of Criminal Procedure is it explained when persons are said to be accused of an offence for the purposes of section 239 of the Code of Criminal Procedure. I considered this question recently in Muhammad Khan and others v. The Crown ( Pals L R 1953 Lah, 590=P L D 1953 Lah. 262) which was heard by a Division Bench of this Court of which I was a member and it would appear that I had expressed the view that for the purposes of section 239 of the Code of Criminal Procedure accusation in cases which were investigated by the police should mean the report made under section 173 of the Code of Criminal Procedure. The remarks that I made in that case were meant to apply to the facts of that case alone and were not intended to have general application though it appears that the language employed by me is open to the interpretation that for the purposes of trials held under Chapters XXI and XXIII of the Code of Criminal Procedure the accusation for the purposes of section 239 of that Code is the report made by the police under section 173 of the Code of Criminal Procedure. The material facts of that case were that seventeen persons were jointly tried for an offence of murder and for causing simple hurts with sharp‑edged and blunt weapons to a number of persons. In the first information report made to the police under section 154 of the Code of Criminal Procedure it had been clearly mentioned that five of the accused persons who committed the murder had also caused some injuries to the companions of the murdered man and that when the compan ions of the murdered man had gone some distance some of their friends arrived there as did some of the friends of the five persons who had been responsible for the murder at which there was a fight which resulted in receipt of injuries by some members of each party. The report of the police under section 173 of the Code of Criminal Procedure was also to that effect and the Magistrate who committed the two offences, which were tried by the C ‑ Session‑the offence relating to the causing of simple injuries appeared to have been committed for trial as it had occurred within a short time of the offence of murder‑framed separate charges with regard to the two offences, but the learned Sessions judge treated all the offences committed in the two transactions as having been committed in one transaction. It was in those circumstances that I remarked that the most relevant thing in deciding what an accusation was is the report of the police under section 173 of the Code of Criminal Procedure .The general remarks made by me in that case were intended to show that if the prosecution changed their case before the committing Magistrate and it appeared that the change has been introduced in order to make a joint trial possible it will be open to the committing Magistrate or the Court which tries the case to accept the police report under section 173 of the Code of Criminal procedure in preference to the evidence produced in the case. That the committing Magistrate, the trial Court and the appellate Court have the power to ignore the evidence which appears to have been introduced to make a joint trial possible when it would not be permissible if the rea: fact: were before the Court was held in Mallayya v. King‑Emperor (I L R 49 Mad. 74) and Rash Behari v. Emperor (A I R 1932 Cal. 753) the latter of which cases was the subject of appeal to the Privy Council in Babulai Chaukhani v. King Emperor (AIR1938PC130) and is a proposition which has never been controverted. I have carefully considered the question and have arrived at the conclusion that for the purposes of section 239 of the Code of Criminal Procedure the term accusation" for the pur poses of trials of summons cases dealt with in chapter XX of the Code of Criminal Procedure will Le the particulars of the offences which are stated to the accused persons under section 242 of the Code of Criminal Procedure when they appear before a Magistrate. If the offences for which the accused are being tried according to summons case procedure, were investigated by the police‑‑ which would be very rare as offences triable as summons cases under the Code of Criminal Procedure are generally not congnizable by the police‑the accusation will generally be the report of the police. But if the case was initiated on a complaint the complaint and the statements of witnesses examined before issuing process to the accused would be the accusation. In warrant cases which are tried according to the provisions contained in Chapter XXI of the Code of Criminal Procedure the accusation for the purposes of section 239 of the Code of Criminal Procedure would be the material before the Magistrate at the time when he decides to frame a charge under section 254 of the Code of Criminal Procedure. In cases in which the evidence goes beyond the report or the complaint (if the proceedings were initiated on a complaint) the accusation may be something different from the police report or the complaint, as the case may be, provided the Court is satisfied that the prosecution have not changed their position with a view to making a joint trial possible. In cases tried by the Court of Session or the High Court, charges are framed by the committing Magistrate but it is open to those Courts under section 226 of the Code of Criminal Procedure to amend the charge or charges and under section 227 of that Code to frame additional charges. For the purposes of cases triable by the Court of Session or the High Court under Chapter XXIII of the Code of Criminal Procedure .the term "accusation" would mean the same thing as in warrant cases. If, however, the trial Court comes to the conclusion at the committing Magistrate has not framed the charges with regard to all offences which the persons standing trial had committed in any of the manners mentioned in section 239 of the Code of Criminal Procedure it will be open to it to frame additional charges and if the Court does so it will have acted beyond its powers only if it frames charges which did not flow from the accusation. On going through the record of the committing Magistrate I find that the offences with regard to which the learned trial Judge framed additional charges except those dealt dealt with by charges 7 and 13 were mentioned in the evidence of the witnesses produced before the committing Magistrate though no allegations about some of those offences were made in the first information report or in the report made by the police under section 173 of the Code of Criminal Proce dure. In the order of commitment the learned committing Magistrate did not even hint that he did not believe the evidence with regard to offences which were not mentioned either in the first information report or in the report of the police under section 173 of the Code of Criminal Procedure and it is obvious that no part of the evidence produced before him had been discarded by the learned committing Magistrate. When the matter came up before him the learned trial judge formed the opinion that relevant evidence which disclosed more offences had been overlooked by the committing Magistrate and he, there for, proceeded to frame the additional charges which he was within his right in doing. Many of the offences which were the subject of charges framed by the learned trial judge were not mentioned in the first information report and the reason for that omission obviously was that the informant was concerned mainly with the morel serious offences committed by the culprits and the other offences, namely trespass, etc., must have appeared insignifi cant for the purposes of the first information report which related to offences against human body. The report made by the police under section 173 of the Code of Criminal Procedure confined itself only to the offences mentioned in the first information report and, therefore, did not allude to all the offences which were disclosed by the evidence produced in the Court of the committing Magistrate. I would, therefore. hold that all the charges for which the learned trial judge tried the appellants except charges 7 and 13 flowed from the accusation levelled against them. The question arises if the finding that charges 7 and 13 framed by the learned trial judge. did not flow from the accusation makes it necessary to order a retrial. The evidence with regard to charges 7 and 13 framed by the learned trial judge, if believed, would prove that on the night on which the offences mentioned in the report of the police under section 173 of the Code of Criminal Procedure were committed the three appellants, along with an unknown companion, were in a village in which they do not reside and were looking for persons believed to be connected with the murder of the father of two of them which conduct of theirs would by itself, and in connection with other facts, make it probable that they had committed the offences mentioned in the other eleven charges and be relevant under section 11 of the Evidence Act. Now even if the learned trial Judge had not framed charges 7 and 13, it would have been open to the prosecution to lead the entire evidence which is on the record and no piece of evidence which could not have been considered if the trial were confined only to the charges which flowed directly from the accusation had been brought on the record to the prejudice of the accused persons. If no piece of evidence, irrelevant for the purposes of the charges which flowed from the accusation, has been brought on the record, can it be said that the trial was vitiated simply because some charges which did not flow from the accusation were framed by the learned trial Judge. It is obvious that if charges 7 and 13 are deleted and the case is retried, the prosecution will produce or, at any rate, will be entitled to produce the entire evidence which is at present on the record. While dealing with questions with regard to the necessity or otherwise of a retrial the question whether or not there) had been any prejudice to an accused is a relevant and an important consideration. If after reviewing the entire facts of the case the Court comes to the conclusion that a defect in the mode of the trial has resulted in no prejudice to the accused the trial cannot be held to be bad in spite of the fact that some provision of law has not been strictly complied with. The learned counsel for the appellants made a passing reference to Subramania Iyer v. King Emperor (1 LR25Mad.61) but, in my view, that case is distinguishable because what was done therein was in flagrant disregard of the provisions of law as 41 offences were tried at the same trial though the Code of Criminal Procedure allowed the trial of only three such offences. This decision of Privy Council was considered in S. M. K. Alvi v. The Crown (PLD1953FC189) by Their Lordships of the Federal Court, who are reported at page 201 to have remarked as follows:‑ "It appears to us, therefore, that in the case of Subramania Iyer the possibility of actual injustice having resulted on account of a violation of the provisions of the Criminal Procedure Code was not ruled out, and that it was a contravention of the positive provisions of the Code combined with the possibility of injustice that led to the ` quashing of the proceedings in Subramania Iyer's case. " That the consideration whether prejudice was caused or not is relevant for the purposes of determining whether a joint trial should be quashed is also clear from the judgment of their Lordships of the Privy Council in Babulal Chaukhani v. King‑Emperor (AIR 1938 P C 130). At page 135 of the report Their Lordships dealt with the matter in the following terms :‑ "Then it was contended that the charge of theft was not properly framed because it alleged a multiplicity of offences between April 1934 and 16th January 1935, whereas the offences did not constitute a single continuing offence; they were separate offences committed on particular dates and should have been separately charged. Their Lordships feel that the form of the charge was most irregular and regrettable and one which should be avoided. But they cannot regard this objection as one which in the circum stances of this case should receive effect, especially because they agree with the High Court that no injustice was inflicted on the appellants. The specific offences of which they were accused were satisfactorily proved by competent evidence, corroborated in all necessary respects. There was no miscarriage of justice. In addition the irregularity was such as could be, and was cured under sections 225 and 537 by the finding that the accused had not been prejudiced." The learned counsel for‑the appellants relied on Noor Din v. The Crown (Pak. L R 1952 Lab. 163=P'L'D 1952 Lab. 185) which was decided by a Division Bench of this Court of Which I was a member. The facts of that case were that a woman and her paramour were killed, the woman at 9 or 10 p.m. by three persons and the paramour six or seven hours later by only one of them. The two offences were tried jointly ; all the three accused persons being tried for the murder of the woman and one of them for the murder of her paramour without there being an allegation that the accused who had single‑handed committed the second murder had done so because of a conspiracy with or abetment by the other. It was on those facts that it was held that as the accusation did not even remotely suggest that any clause of section 239 of the Code of Criminal Procedure was applicable the joint trial of all the three was not allowed by law. The question whether or not there had been prejudice was also taken into account as is clear from the following remarks at page 194‑95 of the report in Noor Din's case := "Apart from the interpretation of clause (c) of section 239 of the Code of Criminal Procedure, there is another consideration which, if not overlooked, must lead to the result that :I have already mentioned. Joint trials of different persons are allowed because they are accused of having committed the same or similar offences connected one with the other and if it were permissible to add against one of the accused persons charges which have no connec tion with the charge with respect to which all of them are being tried it is by no means unlikely that the case of those accused persons who are not tried for the additional charges will be prejudiced. Confusion is also likely to result and as an accused person is to be given all reasonable opportunities to defend himself, a mode of trial which is likely to confuse any of the accused persons, must as far as possible be avoided unless the law allows that procedure to be adopted." I drew a distinction in Noor Din's case between an illegality and an irregularity and said at page‑197 of the report "I will now address myself to the consideration of the question whether what had occurred in the present case was an illegality or a more irregularity. I will not attempt to give exhaustive lists of illegalities as distinguished from irregularities but will only say that in my view where the non‑compliance with the provisions of Code of Criminal Procedure is with regard to a matter of a formal character, the result is an irregularity curable by section 537 of the Code, but where the non‑compliance amounts to a serious and substantial disregard of the provisions of the Code relating to the mode of conducting a trial, the result is an illegality." It is obvious from what has been said above that Noor Din v. The Crown (Pak _L R 1952 Lab. 163=P L D 1952 Lab. 185) is not applicable as it has no sort of resemblance with the case under consideration and in the circumstances of this case the disregard of section 239 of the Code of Criminal Procedure is no more than an irregularity curable under section 537 of the Code of Criminal Procedure. Another case relied upon by the learned counsel in support of his contention was Muhammad Khan and others v. The Crown (Pak. L R 1953 Lah. 590=P L D 1953 Lah, 262). The facts of that case that I have given in an earlier part of this judgment will have shown that the decision in that case can have no application to the facts of the present case. But even if the material to be considered for determining) if the persons tried together are accused of offences jointly) triable under section 239 of the Code of Criminal Procedure is the report to the police or the report made by the:, police under section 173 of the Code of Criminal Procedure the, trial in the present case was not illegal, because the entire evidence produced by the prosecution to prove the other charges would because of section 11 of the Evidence Act be relevant to prove the charges mentioned in those reports.) I may here add that the reason why the evidence given in the Court of the committing Magistrate did not show that offences which were dealt with in charges 7 and 13 flowed from the accusation was that the statements of the witnesses in the Court of the committing Magistrate were rather sketchy and no attention appears to have been paid to important details which should and could have been brought out. If it were permissible to refer to statements made to the police during the course of investigation, even charges 7 and 13 could be held to flow from the accusation but section 162 of the Code of Criminal Procedure is so worded that it is plot permissible to use the statements made to the police during the course of investigation even for the purposes of determining whether or not the accusation alleged a certain thing. In view of what I have said above I am of the opinion that where a joint trial of charges is held and it appears that some charges should not be tried with the others, the trial is not vitiated if the whole evidence brought on the record by the prosecution is relevant with regard to the charges which could be tried together. In a case of such a nature the joinder of the charges which could not be jointly tried with those which could be, will be no worse than an error in stating the charge contemplated by section 225 of the Code of Criminal Procedure and would be immaterial unless the Court comes to the conclusion that the accused was misled by the error and the error has occasioned a failure of justice. In the present case, the error could not have caused a miscarriage of justice, nor could the accused persons have been misled in their defence by it because the whole of the evidence could have been brought on the record even if charges 7 and 13 framed by the learned trial judge had not been framed at all. In this connection, section 232 of the Code of Criminal Procedure is also of some significance. This section empowers an appellate Court to order a retrial on the ground of an error in a charge only if it appears that the accused was misled in his defence because of the error. In the present case, the error not being of such a character as to mislead the accused in their defence or to cause miscarriage of justice was entirely immaterial and hence curable under section 537 of the Code of Criminal Procedure. I would hold, therefore, that the trial was not vitiated and no order of retrial is called for. I will now address myself to the consideration of the appeal on merits, except as regards charges 7 and 13, which, as I have already said, do not flow from the accusation. As at present advised, I do not think that there is anything to prevent a decision being given one way or the other about charges 7 and 13 but as no arguments were addressed on this question I express no final opinion about it and will consider the case as if charges 7 and 13 did not exist. The evidence with regard to the murder of Said (charge No. 1) was given by Mst. Maqsudan (P. W. 10), the widow of Said deceased, and Mst. Wallan (P. W. 11), his daughter. In addition, we have two dying declarations of Said, one of which, Exh. P. W. 18/A, was recorded by Mahfooz Husain, A. S. I., on reaching the spot and the other Exh. P. C., by Mr. C. E. Robson (P. W. 3), who was those days working as Naib Tehsildar at Nankana Sahib. Mst. Maqsudan and Mst. Wallan deposed that the assailants of Said were the three appellants and I can think of no reason why their statements should not be believed as even in the two dying declarations the three appellants are mentioned as the culprits. There are some minor discrepancies between the two dying declarations, for example, the one recorded by the Magistrate does not say that the three appellants had a companion and that Mst. Maqsudan and Mst. Wallan were at their house at the time of the incident, but these omissions are, in my view, entirely immaterial. I have no doubt in my mind that both the dying declarations were made by Said when he was in his senses and was aware that he was facing death. I am not prepared to believe that in the two dying declarations Said named the appellants on suspicion or out of enmity. I would hold, therefore, that it has been established beyond all reasonable doubt that the injuries received by Said on the night between the 18th and 19th of March 1953 were given to him in the manner, at the time and at the place mentioned by the prosecution. Doctor Umar Din, M. O., Nanka Sahib, who performed the post‑mortem examination on the dead body of Said deceased, found the following injuries :‑ (1) An incised would 8" long passing along the upper lip and to the right angle of the mouth and 1" of the face beyond and on the left the cut passed through the upper lip and cut lip was hanging and 1/3" above the left angle of the month and cutting the face along with facial muscles and reaching a point one inch from the lobule of the left ear. The cut was interrupted by one inch on the right side of the upper lip, near the right angle of the mouth. The right upper central incisor and first upper left premolar were shaking. The left upper central and lateral incisor and left upper canine were cut near the roots. The face was disfigured to a great extent. (2) An incised wound, 11" x 2" x 1 ", on the left suprasca pular region. The acromian process was cut. The wound was nearly horizontal. (3) An incised wound, 3 " x " x 1", oblique on the upper part of the right shoulder‑blade region. In the opinion of the doctor death was due to shock and heamorrhage resulting from the incised injuries received by the victim. The injuries were very serious in nature, and even if no other evidence existed, from the nature of the injuries alone it would have been sufficiently proved that the assailants intended to cause the death of Said deceased. The conviction of the appellants under section 302/34 P. P. C. for the murder of Said was, therefore, entirely justified and is maintained. Another charge which dealt with the death of Said is No. 11 which stated that the appellants entered into the house of Muhabbat Lambardar, who is a brother of the widow of Said deceased. Muhabbat Lambardar did not appear as a witness but the trespass into the house of Muhabbat Lambardar is amply established by the depositions of Mst. Maqsudan (P. W. 10) and Mst. Wallan (P: W. 11). The trespass into the house of Muhabbat was made by the appellants as they believed that Said had not died in spite of the injuries inflicted to him at his house and, therefore, it is obvious that the trespass was with the intention of committing an offence punishable with death. The conviction of the appellants under section 449/34 of the Pakistan Penal Code for the trespass into the house of Muhabbat Lambardar was entirely justified and I would, therefore, maintain it. Coming to the murder of Ahmad, directed evidence with regard to it is given by Muhabbat (P. W. 4) and Salabat (P. W. 7), who were themselves fired at by the assailants but were fortunate enough to escape unhurt. The mere fact that Muhabbat (P. W. 4) and Salabat (P. W. 7) are real brothers of Ahmad deceased is no ground for discarding their evidence. The statements of these two witnesses prove not only the charge with regard to the killing of Ahmad by the appellants but also charges relating to burning of the house of Ahmad (charge No. 3), the attempt in doing away the evidence of the murder committed by them by burning the dead body of Ahmad, the entry into the house of Ahmad with the intention of killing him and other inmates of the house (charge No. 9) and the attempt to kill Muhabbat (P. W. 4) and Salabat (P. W. 7) (charge No. 10). I would, therefore, hold that it had been established that the appellants, in the company of an unknown man, had, on the night between the 18th and 19th of March 1953, killed Ahmad, and attempted to kill Muhabbat (P. W. 4) and Salabat (P. W. 7), after trespassing into his house and thereafter burnt the house of Ahmad and attempted to burn his dead body. There is the evidence of other witnesses also with regard to the setting on fire of the house of Ahmad by the appellants, but in view of the clear evidence given by Muhabbat (P. W. 4) and Salabat (P. W. 7) it is not necessary to press that evidence into service. The above evidence proves charges 2, 3, 4, 9 and 10 against all the three appellants and their convictions for offences under sections 436/34, 201/511 read with section 34, 449/34 and 307/34 of the Pakistan Penal Code as well as for the killing of Ahmad are maintained, Doctor Umar Din (P. W. 1) also performed the post‑mortem examination on the dead body of Ahmad and found the following injuries thereon :‑ (1) A wound, 6" x 1 ", the bone underneath cut and the brain matter protruding out on the back of the head cutting the occipital bone and left parietal. (2) An incised wound, 2 " x ", on the back of the head and crossing the injury No. 1 cutting the occipital bone and injuring the brain. (3) An incised wound, 4" x ", cutting bone and injuring the brain parallel to injury No. 2 and just above it. (4) An incised wound, 3 " x ", across Nos. 2 and 3 cutting the bone. (5) An incised wound, 2 " x ", cutting the bone and injuring the brain. Horizontal J" above the injury No. 1. (6) An incised wound, 4" x ", on the left side of the head cutting the left parietal bone and the brain. (7) A cut on the upper part of the right buttock oblique, 4" x " x 1", in the burnt muscles. It was difficult to ‑say whether anti‑mortem or post‑mortem. The skull was fractured and the brain was injured. There can be no doubt that the assailants intended to kill Ahmad which they succeeded in doing. On the evidence the conviction of the appellants under section 302/34 of the Pakistan Penal Code for the murder of Ahmad must, therefore, be maintained. I will now deal with the charge of the attempt to murder Mst. Sattan (P. W. 8) (charge No. 5). With regard to this offence we have the evidence of Mst. Sattan (P. W. 8) herself, which I have been given no valid reason for not accepting. The other witness with regard to this matter was Mst. Fateh Bibi (P. W. 9), the mother of Mst. Sattan who was merely tendered for cross‑examination but was not questioned by the defence. It is no doubt true that the incident took place at night and Bashir appellant who is stated to have used the firearm which injured Mst. Sattan, was standing at some distance from her, but she stated that she identified the assailant. Her statement is corroborated by the fact that Bashir appellant was concerned in some other offences committed in village Halla Khichhian on that night. There can be no doubt that the attack on Mst. Sattan, who had been mistaken for her husband Muhabbat, was as a result of a pre‑concerted plan between all the three appellants and their unknown companion and I would, therefore, maintain the conviction of all the three appellants under section 307/34 of the Pakistan Penal Code with regard to the gunshot injury received by Mst. Sattan. Charge No. 13, which alleged that the appellants had trespassed into the house of Muhabbat with the intention of committing a murder is connected with charge No. 5, but as charge No. 13 has been held not to flow from the accusation I will give no decision about it but will only set aside the conviction of Bashir and Nazir appellants on this charge. Charge No. 6 relates to trespass into the house of Sonatta (P. W. 13) while charge No. 7 deals with the confine ment of Alam Sher (P. W. 14) in the house of Sonatta (P. W. 13). In his statement the before committing Magistrate, Sonatta (P. W. 13) did not say that the appellants had entered into his house, I would, therefore, give the benefit of doubt to the appellants with regard to the offence under section 449/34 of the Pakistan Penal Code relating to the entry into the house of Sonatta P. W. As charge No. 7 does not flow from the accusation I will give no decision about it and will content myself with setting aside the conviction under section 342/34 P. P. C. with regard to the alleged wrongful confinement of Alam Sher (P. W. 14). This leaves only charge No. 8 which related to the trespass into the house of Anwar to be dealt with. About this matter, we have the statement of Mst. Amiran (P. W. 12), the twenty years old daughter of Anwar, which I can think of no reason for not accepting. It is established that the object of the appellants in entering the house of Anwar was to kill any, male member of the family who may be there and the case would, therefore, fall within the ambit of section 449 P. P. C. The conviction of the appellants ' under section 449/34 of the Pakistan Penal Code was, therefore, proper and is maintained. It was contended by the learned counsel for the appellants that all the witnesses belong to one family and their statements should not be accepted. It is true that mainly the prosecution eye‑witnesses belong to one family but that is no ground for discarding their statements. There is a significant fact which shows that the witnesses had not named any of the appellants either on suspicion or because of enmity and that fact is that though even in the first information report the case was that there were four culprits no one connected with the family of the appellants has been named as the fourth man in spite of the fact that a number of able‑bodied persons belonging to that family live in the vicinity of the scene of the occurrence. Another piece of evidence relied upon by the prosecution was the recovery of a country‑made revolver at the instance of Nazir, appellants There is no evidence that this revolver was used during the commission of the offences under consideration and I Would, therefore keep that evidence out of consideration This leaves only the question of the sentences to x be dealt with. I consider that the death penalty is the only appropriate sentence in this case not only because two murders were committed but also because they were committed in a very daring and dastardly manner. I would, therefore, confirm the sentences of death imposed on all the three appellants. The sentences imposed by the learned trial judge for the offences of whicl5 I have held the appellants guilty are in the circumstances by no means severe and I would, therefore, maintain them. The result, therefore, is that the appeal succeeds in so far as it relates to charges 6, 7 and 13 but fails in all other respects and the sentence of death imposed on. each of the appellants is confirmed. B. Z. KAIKAUS, J.‑I agree. . A. H. Sentence confirmed.