2001 PLP 896 (YLR)

MUHAMMAD ROSHAN ESSANI, J.

By this Constitutional petition, the petitioner has sought the following relief:

(a) To direct the respondent 6 to withdraw the challan of Crime No.27 of 1999 of Police Station Naushahro Feroze from the Court of learned Judge STA, Naushahro Feroze and submit the same before the Court of respondent 5. (b) Any other relief or reliefs which deems fit this Honourable Court may be awarded to the petitioner. (c) Cost of the petition be also awarded to the petitioner. The brief facts of the case as disclosed by the petitioner are that on 6-3-1999 petitioner lodged report with Police Station, Bandhi, District Nawabshah being F.I.R. No.10 of 1999 under section 364, P.P.C. It is stated in the F.I.R. that the petitioner's nephew Javed Iqbal and Nazir Ahmed were abducted by unknown persons while they were coming from Bandhi towards village Manharo in the car. The abductees were released on the payment of ransom to the tune of Rs.15,00,

000. During the course a of investigation, the respondents 2 to 4 were arrested and sent up to stand trial under sections 365-A, 148 and 149, P.P.C. It is further averred that on 15-3-1999 an encounter took place between the policemen of Police Station, Naushahro Feroze and respondents 2 to 4 while they were taking away the abductees. Such F.I.R. was registered vide Crime No.27 of 1999 at Police Station, Naushahro Feroze under sections 353, 324 and 149, P.P.C. read with section 13-D, Arms Ordinance. After usual investigation the respondents 2 to 4 were sent up before the learned Special Judge (STA)/Sessions Judge, Naushahro Feroze to stand trial. Subsequently, the case was transferred from the Court of learned Special Judge (STA)/Sessions Judge, Nausharho Feroze to the Court of learned Special Judge (STA)/Sessions Judge, Sukkur. We have heard Mr. Habibullah Shaikh, learned counsel appearing on behalf of the petitioner, Mr. Abdul Latif Memon, learned counsel appearing on behalf of the respondents 2 to 4 and Mr. Ghulam Dastagir A. Shahani, learned Additional Advocate General, Sindh on behalf of the State. The latter, both the learned counsel have opposed the prayer of the petitioner. The perusal of material placed on record shows that the respondents 1 to 3 accused are charged with the offences punishable under sections 324, 353 read with section 149, P.P.C. relating to the incident which occurred on 15-3-1999 within the jurisdiction of Police Station, Naushahro Feroze. The contention of the learned counsel appearing on behalf of the petitioner that the offences were committed in "same transaction", therefore, under section 239, Cr.P.C. It is mandatory that the respondents 2 to 4 be sent up and tried by the learned Anti-Terrorism Court, is not tenable in law. It will be pertinent to reproduce hereinbelow section 239, Cr.P.C. and section 234, Cr.P.C:-- "

239. What persons may be charged jointly. 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) Persons accused of an offence which includes theft extortion, or criminal misappropriation, and persons accused of receiving, or retaining, or assisting in the disposal or concealment of, property possession of which is alleged to have been transferred by any such offence committed by the first-named persons, or of abetment" of or attempting to commit any such last named offence. (f) Persons accused of offences under sections 411 and 414 of the Pakistan Penal Code or either of those sections in respect of stolen property, the possession of which has been transferred by one-offence; and (g) Persons accused of any offence under Chapter XII of the Pakistan Penal Code relating to counterfeit coin, and persons accused of any other offence under the said Chapter relating to the same coin, or of abetment of or attempting to commit any such offence and the provisions contained in the former part of this Chapter -shall, so far as may be, apply to all such charges." 234. - Three offences of same kind within year may be charged to ether.

(1) When a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with, and tried at one trial for, any number of them not exceeding three. (2) Offences are of the same kind when they are punishable with the same amount of punishment under the same section of the Pakistan Penal Code or of any special or local law: Provided that, for the purpose of this section, an offence punishable under section 379 of the Pakistan Penal Code shall be deemed to be an offence of the same kind as an offence punishable under section 380 of the said Code, and. that an offence punishable under any section of the Pakistan Penal Code, or of any special or local law, shall be deemed to be an offence of the same kind as an attempt to commit such offence, when such an attempt is an offence.." The plain reading of the provisions of law reproduced hereinabove shows that the provisions of section 239, Cr.P.C. are ancillary and subsidiary to section 234, Cr.P.C. The general rule is that for every offence separate. charge to be framed.. and separate trial be held. The section 239, Cr.P.C. is an exception to general rule. Therefore, duty casts upon the prosecution to strictly establish that the case falls within the ambit of section 239, Cr.P.C. The words "same transaction" are not specifically defined in the Code of Criminal Procedure, 1898. Thus, the same cannot be interpreted in any special or technical terminology but in its ordinary etymology. The joinder of charges cannot be made as a matter of routine. If Court finds that any prejudice would be caused to the accused or the charges are distinct and do not come stricto senso within the parameters of section 239, Cr.P.C. read with section 234, Cr.P.C. the Court must desist from the joinder of charges. The respondents 1 to 3 accused are facing trial before the learned Special Judge, Anti-Terrorism Court under section, 365-A, 148 and 149, P.P.C., which arose out of F.I.R. No.10 of 1999 of Police Station Bandhi, District Nawabshah, dated 6-3-1999. 8 They are facing trial in another case before the learned Special Judge, S.T.A./Sessions Judge under sections 353, 324 and 149, P.P.C. read with section 13-D of Arms Ordinance which arose out of F.I.R. No.27 of 1999 of Police Station Naushahro Feroze, dated 15-3-1999. The offences under which the respondents 1 to 3 are facing trial before the A.T.A. Court are distinct and different from the offences in case pending against them before S.T.A. Court. The date of the commission of offence of both the cases, punishment, venue of offence, witnesses, evidence, Mashirnamas and F.I.Rs. are different from each other. Even the name of the petitioner does not transpire in the calendar of witnesses. Consequently, the present petition' merits no consideration and stands dismissed j with no order as to costs. H.B.T./M-215/K Petition dismissed.