P L D 1964 Supreme Court 120 (PLP)

HAMOODUR RAHMAN, J.‑These two appeals, by special leave, arise out of the same judgment of a learned Single Judge of the High Court of West Pakistan, whereby two criminal revisions were dismissed and the convictions of the appellants before us under section 304‑A of the Penal Code were maintained. The appellants were the drivers of two motor vehicles proceeding in the same direction, namely, towards Sheikhupura, on the Lyallpur‑Sheikhupura road. One of these was a motor bus, which was being driven by the appellant Noor Ahmed, and the other was a Chevrolet car driven by the appellant Rahim Bakhsh. The car was behind the bus, but near village Feroze Watuan the driver of the car attempted to overtake the bus and almost succeeded in doing so, but its rear bumper got entangled with the front bumper of the bus. The impact caused the car to turn turtle and it was pushed to the left side of the road where it crushed a pedestrian, named Muhammad Jamil, and killed him. The police, upon investigation, took the view that the collision and the death of the innocent pedestrian occurred due to the rash and negligent driving of both the drivers and, therefore, sent them both up for trial under section 304‑A of the Pakistan Penal Code before a Magistrate invested with powers under section 30 of the Criminal Procedure Code at Sheikhupura. The Magistrate framed separate charges against each of them as follows :‑ "I, Mr. Aftab Farrukh, Magistrate, hereby charge you Noor Ahmed, accused as follows :‑ That you on or about the 16th November 1960, at 8 a.m., at Feroze Watuan, drove your lorry, bearing No. 6032 W. P. L. of Yasin Transport, rashly and negligently on the pucca road, while coming from Lyallpur to Sheikhupura, and did not give way to Car No. PBU 3, which was coming from the behind, and when the Car No. PBU 3 was going to pass, you got the front bumper of your lorry entangled with the rear bumper of the car and turned it over and one Jamil, deceased, was run over by it who died there and then, and thereby committed ant offence punishable under section 304‑A of the Pakistan Penal Code and within my cognizance. And I hereby direct that you be tried by the said Court (or me) on the said charge. Given under my hand and the seal on this day the 6th March 1961." "I0, Aftab Farrukh, Magistrate, hereby charge you, Rahim Bakhsh, accused, as follows :‑‑ That you, on or about the 16th November 1960, at 8 a.m., at Feroze Watuan, drove your car bearing PBU 3 rashly and negligently while coming from Lyallpur to Sheikhupura, on the pucca road, drove your car ahead of the lorry, and in doing so the rear bumper of your car got entangled with the front bumper of the lorry, with the result that the car turned turtle and one Jamil deceased was killed after having been run over by it, and thereby committed an offence punishable under section 304‑A of the Pakistan Penal Code and within my cognizance. And I hereby direct that you be tried by the said Court (or me) on the said charge. Given under my hand and the seal on this day the 6th March 1961." It will be observed that these charges do not allege any collusion or joint action between the two appellants. They are independent charges alleging that each appellant was by his own individual act responsible for the collision and the death of the said pedestrian Muhammad Jamil. These charges were evidently framed upon the assumption that either the one or the other of the appellants was responsible for the collision and the death of Jamil and not on the basis that they were both liable. The charges were also read over and explained to each of the appellants separately and each pleaded not guilty to the charge but they were both tried jointly. At the trial they were represented by separate counsel who examined the witnesses produced on behalf of the prosecution separately and each attempted to throw the blame for the collision and the death of the pedestrian on the other. No objection was, however, taken to the joint trial, even though the appellant Noor Ahmed, in his examination, clearly stated that the accident was not due to his fault. The appellant Rahim Bakhsh merely denied his guilt. It is significant, however, that even in their respective examinations it was not suggested to them that they were both jointly responsible for the collision and the death of the pedestrian. The question that was put to the appellant Noor Ahmed was to the following effect :‑ "Were you, on the 16th November 1960, within the area of Feroze Watuan, driving lorry No. WPL 6032 of Yasin Transport rashly and negligently on the pucca road from Lyallpur to Sheikhupura side and did not give way to Car No. PBU 3, which was coming from the behind, and when the car was about to pass you entangled the front bumper of your lorry with the rear bumper of the car, and turned it turtle and thereby knocked down Jamil, deceased, and caused his death ?" Similarly the question that was put to Rahim Bakhsh was as follows :‑ "Did you on the 16th November 1960, within the area of Feroze Watuan, drive your Car No. PBU 3, on the pucca road, from Lyallpur to Sheikhupura rashly and negligently, and pass the said car ahead of lorry No. WPL 6032 and entangle the rear bumper of your car with the front bumper of the lorry, with the result that your car turned turtle and Jamil deceased lost his life by being run over by it?" No objection was taken as to the legality of the joint trial either in the trial Court or in the appeal before the Sessions Judge. In the High Court in revision the legality of the joint trial was for the first time challenged on behalf of the appellant Rahim Bakhsh, but the High Court took the view that although the drivers of the two vehicles could not be said to be acting in concert, yet since they both acted negligently in causing the collision which resulted in the death of the pedestrian, it could reasonably be held that the "collision constituted one transaction and both of them can, therefore, be tried jointly for the offence which resulted from an act which was jointly committed by both of them, though they did not act in concert:" Leave was granted in these cases to consider whether, where the cases set up by two accused persons are directly in conflict and it is clear that they were acting independently of each other, they could in law be jointly tried? Learned counsel appearing for the appellant Rahim Bakhsh has placed strong reliance upon a decision of this Court in the case of Md. Mosaddar Hoque and another v. The State (P L D 1958 S C (Pak.) 131), to support his contention that before the acts constituting the offence alleged can be said to have been committed in the course of the same transaction, there must be established some causal connection between the said acts and unless such causal connection is established there can be no community of design or purpose which is the most essential element necessary to establish that the acts were committed in the course of the same transaction. Learned counsel has further urged that sections 235 and 239 of the Criminal Procedure Code create special exceptions to the general rule laid down in section 233 of the said Code, namely, that there should be a separate charge and a separate trial for each distinct offence, and that these exceptions have been designed to facilitate the trial of accused persons by preventing duplication of proceedings in the interests of the accused persons themselves. They should, therefore, not be construed in such a manner as to render the more fundamental principle of criminal trials, namely, that no method of trial should be adopted which would cause embarrassment to the accused persons ; nugatory. The Provisions of the sections 235 and 239 of the Criminal Procedure Code vest, in our view, a discretion in the Court to try offences of the kinds indicated therein jointly in the circum stances therein mentioned, but there is nothing in them to indicate the that the Court is bound to try such offences or persons together in every case. The discretion vested in the Court by these sections is expected like any other discretion vested in a Court of law to be exercised upon sound judicial principles and in the light of the facts and circumstances of each case. It is obvious that where such a joint trial is likely to embarrass an accused person or cause some serious hardship to the defence, it goes without saying that the Courts ought not to exercise this discretion. Learned counsel appearing for Noor Ahmed has, however, placed before us a Division Bench decision of the Madras High Court in the case of M. K. Baliah and another v. Emperor (1931 M W N 556), where it appears to have been held that a collision between two buses coming from opposite directions, which resulted in the death of six persons and injuries to 14 others who were all passengers in the buses, constituted one single transaction and the drivers of both the vehicles could be tried together. Beasley, C. J., who delivered the judgment of the Court in the said case, gave the following reason for taking such a view:‑ "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 that is not the only test nor in 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 accuses can be tried together as indeed they were." It will be observed that the learned Chief Justice was of the view that since this was an unusual case, an unusual test should be applied, but he at the same time conceded that if the usual tests for determining whether the acts constituted the same transaction were to be applied, there would be a "wrong Joinder." It appears that some of the Courts even in India have in subsequent cases found it difficult to follow the above principle, though the decision has not been expressly dissented from. Thus in the case of Umar Bin v. The State (A I R 1954 Saurashtra 15), which was also a case in which a passenger was killed and several injured as a result of a collision between two buses and the drivers thereof were jointly tried, the Saurashtra High Court considered the point to be not free from doubt and preferred to base its decision, to order a retrial, on other grounds. Again, in the case of Edward Top and another v. The State (A I R 1954 Travancore‑Cochin 4), in a similar case of collision between two cars, the Travancore High Court held that the joint trial of the drivers of the colliding vehicles was illegal an ordered a retrial, although it did not expressly dissent from the view taken in the Madras case. In the last case the learned Chief Justice of the Travancore Cochin High Court observed in his judgment that "without dissenting from the view that the collision was one transaction we venture to observe that in the case in hand considerations 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." We are also of the same view. Even though sections 235 and 239 of the Criminal Procedure Code give a discretion to the Court to try certain persons and or offences jointly yet there are certain considerations which are more fundamental than merely the convenience of the proceeding or trial which must be kept in view when deciding as to whether the discretion should in given in case be exercised or not. In a criminal trial, as we have already observed, it is a fundamental principle that the trial of an accused person should be conducted with the utmost fairness and anything which is likely to cause nay serous embarrassment to him in the conduct of his defence that whether a collision in such circumstances constituted one transaction or not there should not have been a joint trail of the appellants before us for more than one reason Firstly because the accusations made against them did not allege any kind of joint or concerted action nor disclosed any causal connection between the respective acts of the appellants. There was noting therein to suggest that the action of one was either the cause or the effect of the action of the other. Indeed, the accusations, which have been set out in extenso earlier in this judgment, charged each with having caused the death of the pedestrian solely by his own individual rash and negligent act. Thus this was not upon the principle laid down by this Court, in the case of Md. Mossaddar Hoque v. The State, a fit case in which a joint trial should have been held. Secondly, because, from the very beginning it could not but have been obvious to the Court that each was trying to throw the blame on the other and that the interests of the appellants were diametrically opposed to each other. In the circumstances, there was not only, in our view no good reason for departing, in the present case, from the primary rule laid down in section 233 of the Criminal Procedure Code of a separate trial, but the indications were clearly to the contrary, particularly, since separate charges, which did not lay any basis for a joint trial, had already been framed. We would, at this stage, like also to make it clear that we should not be understood to have approved of the view that a collision between two vehicles driven by two different persons which results in injuries to others, is necessarily a single transaction. It may equally plausibly be argued that the collision is itself the result of the independent actions of two persons, who had no community of purpose or design whatsoever. According to the view already taken by this Court in the last cited case Md. Mosadder Hoque "community of purpose or design and continuity of action were sine qua non, if the separate acts were to be linked together, so as to constitute one transaction." We see no reason to depart from that view. Furthermore, although it has been held by this Court in the case just referred to that where a joint trial has been wrongly held no question as to whether any prejudice has thereby been caused or not need be considered, for, it is an illegality resulting from the adoption of a mode of trial prohibited by the Code of Criminal Procedure, yet we are satisfied that in the present case the adoption of such a mode of trial has also resulted in serious prejudice to the appellants. But for their joint trial it would have been open to either of the appellants to have the other examined as a witness and, if necessary, to cross‑examine him in order to establish as to who it was who was responsible for the collision and the death of the pedestrian. This was a valuable right of which the appellants have been deprived by the joint trial. For the reasons given above we allow these appeals, set aside the conviction of the appellant and remand the cases of the appellant and remand the cases of the appellant to the trial Court for retrial separately in respect of the separate charges already framed. K. B. A. Appeals accepted. Cases remanded.