1971 P Cr (PLP)

(g) . . . . . . . . .

11. While considering the meaning of this expression in Emperor v. Datto Hanmant Shahapurkar (I L R 30 Bom. 40) the Court observed as follows :‑ "According to its etymological and dictionary meaning the word `transaction' means `carrying through' and suggests, we think, not necessarily proximity in time, so much as continuity of action and purpose. The same metaphor implied by that word is contained in the illustrations where the phrase used is `in the course of the same transaction' . . . . In section 259, therefore, a series of acts separated by intervals of time are not, we think, excluded provided that those jointly tried have throughout been directed to one and the same objective."

12. A study of the various cases on. this question will show that the following factors are relevant in determining whether or not different acts committed by one or more accused persons were committed in the course of the "same transaction.": ‑ (i) the proximity of time, (ii) the proximity of place,. (iii) whether or not they are related as cause and effect of each other, (iv) whether or not they are related to each other as principal and subsidiary acts, (v) the community of purpose, and (vi) the continuity of action. Yet it is not necessary that where factors mentioned at Nos. (i) to (iv) above are present, different acts committed by the accused must be said to have been committed during the course of the "same transaction". Proximity of time and place etc. may be relevant factors but `community of purpose' and `unity of action are the elements which are essential and absolutely necessary in order to link different acts so as to constitute one transaction. The expression "same transaction" was considered by the Privy Council in Babulul Chuukhani v. King‑Emperor (65 1 A 158). This case is essentially an authority for the proposition that: in order to deter mine whether various acts are so connected to form "the same transaction" what has to be seen are the "accusations" made and not the evidence recorded at the trial or even the result thereof. However, Lord Wrighy delivering the judgment for the Court also made the following observations with regard to the elements necessary for constituting different acts into the same transac tion :‑ "Whatever the scope of connotation may be included in the words `the same transaction', it is enough for the present case to say that if several persons conspire to commit overt acts in pursuance of the conspiracy (a circumstance which makes an act of one the act of each and all the conspirators), these acts are committed in the course of the same transaction, which embraces the conspiracy and the acts done under it. The com mon concert arid agreement which constitute the conspiracy, serve to unify the acts done in pursuance of it.." His Lordship also cited with approval the following observations of Bakar, J. in Gopal Raghunath v. Emperor (1 L R 53 Boric: 344) :‑ "So long as the accusation against all the accused persons is that they carried out a single scheme by successive acts, the necessary ingredients of a charge regarding the one transaction would be fulfilled . . . . . . ." In S. M. K. Alvi v. The Crown (P L D 1953 F C 189) the Federal Court of Pakistan, while considering the test to be applied in determining whether several acts or events constitute the transaction, also came to the same conclusion and observed at p. 198 :‑ "No test of universal application can be laid down in this respect. Sometimes at may happen that several acts committed on various occasions at different places and thus distinct in respect of time and location may form one transaction on account of continuity of design and purpose which actuated those acts. In other cases, it might be that various acts which are committed at the same place at almost the same time may form different transactions. It is the continuity of design and purpose which determines whether various acts or events, constitute one transaction . . . . . . ." A very good illustration of these observations is provided by Noor Ahmad v. The State (P L D 1964 S C 120). The facts of that case were that two motor. vehicles proceeding in the same direction collided with each other and resulted in the death of a pedestrian. Both the drivers, driving the two vehicles, were tried jointly for an offence under, section 304‑A, P. P. C. and were found guilty of the same. It was held by their Lordships that the offences committed by the two drivers were not committed in the course of the same transaction because they had acted independently of each other and "there was no allegation of any collusion or concerted action between the two". Thus although the offences committed by them were com mitted at the same time and at the same place, yet the trial was held to be bad for misjoinder due to an absence of continuity of purpose. Again in Nura v. The State (P L D 1966 Lah. 383) where Nura accused had committed a murder and a murderous assault within a short time, and at places not very far from each other, it was held that the two incidents did not form parts of the same transaction. The facts of that case briefly stated were that Mst. Allah Wasai deceased had two daughters namely Mst. Khanan, aged 14 and Mst. Panan, aged 12 years. About a year prior to the occurrence Ramzan (P. W. 6) and Chiragh (P. W. 7), in the company of Nura accused went to Mohammad (P. W. 8) and requested for the hand of his daughter, Mst. Saidan, for Nura. accused. Mohammad P. W. however, demanded that, in exchange, Mst. Khanan and Mst. Panan should be given in marriage to his two sons Gama and Jahana. Ramzan and Chiragh P. Ws. did not accept this proposal. Subsequently Ramzan P. W. betrothed Mst. Khanan to one Waryam. On the day of the occurrence i. e. 21st February 1963, Nura accused along with two others, approached the P. Ws. requested them to cancel the aforesaid engagement and desired that Ramzan P. W. should agree to the above mentioned proposal of Mohammad P. W. (i. e. that the two daughters of Mst. Allah Wasai should be married, in exchange, to the two sons of Mohammad P. W.). ‑But Ramzan P. W. did not accede to this demand. Nura accused, therefore, threatened him with dire consequences. On the same day at digarwela the accused entered the courtyard of the house of Mst. Allah Wasai arid attacked her with a sword. The noise attracted Lai P. W. who challenged the accused, whereupon the latter left her and ran out into the lane, followed by Lai P. W. and some other persons who had also joined the chase. The accused ran to the house of Ramzan P. W. where he attacked the latter. He (the accused) was, however, overpowered by the P. Ws. Mst. Allah Wasai died as a result of the attack, while Ramzan P. W. was seriously injured. As already observed, on these facts it was held that the two incidents did not occur in the "same transaction" although the factors of proximity of time and place were present.

13. Even if the different acts are connected with each other as "cause and effect", it is riot necessary that they should form parts of the same transaction'. This finds support from the following observation of Mr. Justice Muhammad Munir in Ata Mohammad Khan Alvi v. The Crown (P D 1950 Lah. 288) while considering whether offences which were related to each other as "Cause and Effect" formed parts of the same transaction :‑ "

In such cases one offence may be the cause and the other the effect or one may be the occasion for the commis sion of the other. But while such causal connection is a sine qua non for the constitution of a single transaction, the converse of the proposition need not necessarily be true and though two facts may be connected together as cause and effect, they may never theless constitute two transactions a joint charge respecting which may be wholly inadmissible." In Md. Mosaddar Haque v. The State (P L D 1958 S C (Pak.) 131) their Lordships of the Supreme Court, after considering a large number of cases, also expressed the same views i. e. that "community of purpose" was in fact the essential element in such matters and two offences committed at about the same time and at places near each other would amount to separate offences if there was no common object linking them together. The facts in that case were that on 1st January 1955, one Juhuruddin Bepari presented a kabuliyat for registration before Mosaddar Haque, Sub‑Registrar and paid Rs. 15 as illegal gratification for the registration. Mosaddar Hoque then asked him to pay Rs. 6 to the Moharrir as registration fee. Juhurruddin Bepari gave Rs. 6 to Abdul Rauf, Moharrir, who demanded an extra Re. 1 for himself for attending to the work. Juhurruddin paid another Re. 1 to the Moharrir as bribe. Although the two offences took place shortly after one another and at places very near to each other, yet it was held that they were not parts of the same transaction as "there was no common object in the sense that one helped the other in receiving the illegal gratification. The object of the Sub‑Registrar was to receive an illegal gratification of Rs. 15 for himself and the object of the Moharrir was to receive a rupee for himself." The Supreme Court reiterated the above noted view again in Noor Ahmad vv. The State already referred to above where citing Md. Mosaddar's Hoque's case, it was observed :‑‑ "According to the view already taken by this Court in the last cited case Md. Mosaddar 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 form the same transaction."

14. If, however, `community of purpose' is present in the shape of a conspiracy, plan scheme or design, then the various of offences committed in persuance thereof shall be parts of the same transaction even if they are widely separated in point of time or place of occurrence. In The State v. Mohammad Yunus (P L D 1962 Lah. 244) where the facts were that the accused carried out a single scheme by successive acts and committed four offences of forgery in respect of postal money orders and also committed four offences of cheating in respect thereof and were tried for all the 8 offences at the same trial, it was urged on behalf of the accused that the trial was vitiated on account of misjoinder of charges. The Court, however, held that :‑ "The two accused had carried out a single scheme by succes sive acts and the offences were linked together, With the thread of continuity running through them, as to present a continuous whole. It was not a case of repetition of similar offences if and. when the occasion arose. All the offences were therefore committed in the course of the same transaction."

15. In the present case, the learned Additional Sessions, Judge relied upon Raj Bahadur and others v. Emperor (A I R 1634 Oudh 499) and. Sarwar and another v. The State (1968 P Cr. L J 1634) to arrive at the conclusion that the different acts committed by the accused do not constitute "same transaction". The facts of the first mentioned case (i. e. (A I R 1934 Oudh 499) are that seven persons attacked Mana Singh with spear and lathis and left him for dead. Shortly there after they attacked and murdered his brother Sobha Singh. Sub sequently Maria Singh also died as a result of the injuries received by him. It was held that the two murders were not committed during the same transaction because the murder of Mana Singh was complete in itself and did not require the murder of Sobha Singh to complete it, although a common identity of purpose ran through both the murders. The learned Court also relied on the fact that two sets of witnesses were produced by the prosecution one for proving each of the two murders. The motive imputed to the accused, so far as the police investigation went, was that they committed a riot with the intention of beating Maria Singh and Sobha Singh and in the course of that riot they caused their deaths. The Court while considering the tests to be applied in determining whether the two offences were committed in the same transaction observed :‑ "The usual tests applied to decide whether different acts are parts of the same transaction are proximity of time, unity of place, community of purpose or design and continuity of action." Both the murders in that case were committed shortly after one another in the area of the same village. It was also observed by the Court that "a common identity of purpose no doubt runs through both these transactions". It is, therefore, apparent that almost all the necessary ingredients for linking the two incidents into the `same transaction' were present. Yet it was held that these were two separate transactions. The learned Court observed :‑ "A common identity of purpose no doubt runs through both these transactions and that is a common intent to commit the murders of these two brothers, but the murder of Mana Singh is a transaction complete in itself and did not need the murder of Sobha Singh to complete it." There is an obvious contradiction in the above‑noted observation. As the two incidents were found to be linked by a `community of purpose' and the facts of the case disclose a unity of action and proximity of time as well as place, all the elements necessary to unify them into `one transaction' were present. To hold, there fore, that the two incidents were wholly unconnected was clearly contrary to principles enunciated by the Court itself. This judg ment from the Indian jurisdiction cannot, therefore, be relied upon, specially in the presence of the authorities of our own Supreme Court mentioned above. The second case relied upon by the learned Additional Sessions Judge is Sarwar and another v. The State. The facts of that case, briefly, were that on 25‑3‑1966 at 7 p.m. the accused robbed Nizam Din, a coolie of the Jute Mill at Jaranwala, of a sum of Rs. 18 and a pair of shoes. Half an hour later they robbed Faqirullah, another coolie. The culprits also searched the person of Umar Din, a companion of Faqirullah. At about midnight they robbed Amir of his shirt and pagri etc. Then during the same night the accused, who were armed with deadly weapons entered the quarter of Muhammad Ali, a gate‑man at the railway level crossing and after threatening him carried away some articles belonging to him. They were all tried jointly and convicted for an offence under section 392, P. P. C. on four counts. On appeal the Sessions Judge upheld the order. When the case came up before the High Court in revision, it was contended by the counsel for accused/petitioners that the conviction was improper in that the trial was held in contravention of section 234 (1), Cr. P. C. The learned Judge found the contention to be well founded inasmuch as the offence committed by the accused in relation to Muhammad Ali gate‑keeper was not under section 392, P. P. ‑C. only (but also fell under some other sections, e. g. 457, P. P. C.). All the offences tried together were, therefore, not of the `same kind', and even if they were, only three of them could have been tried together in view of the provisions of section 234 (1), Cr. P. C. It is, therefore, clear that it was not considered in this case whether all the, four offences were committed during the same transaction. In fact, the learned Court considered the case on the assumption (at p. 1636, para. 4), that the offences had been committed' during the same transaction. The authority is, therefore, not relevant for the present purpose and was wrongly relied upon by the learned Sessions Judge. While summing up‑the case in his reference, he observed as follows ; "As observed by me above, neither in the report under section 173, Cr. P. C., nor in the first statement Exh. P. A. of Ghulam Ali was alleged that the accused had held a conspiracy or that they had committed the offence in view of any pre- planned concert. The accusations were positive to the effect that the accused having made criminal trespass into the different houses at the different occasions had committed five murders, one after the other, and had also caused dangerous injuries to the three P. Ws. There is nothing to show that the offences were related to each other as cause and effect or that there was a continuity of action. Each one of the act was an accomplished of fact in itself. Thus, it would be difficult' to say that the offences were committed in the course of the same transaction although accomplished in the same night." The learned Additional Sessions Judge, obviously, overlooked that there are clear allegations in the F. I. R. (as well as in the evidence at the trial) that all the 14 accused acted in unison, in execution of a pre‑concerted plan and in pursuance of a definite purpose, i. e., to take revenge for the murder of three of their relatives by the members of the complainant‑party. In fact, it can be said without exaggeration that they acted in pursuance of a conspiracy (which is nothing more than secret agreement or pact between two or more persons to commit some wrong). It would be recalled that the expression used in the F. I. R. is This clearly makes out an allegation of mutual agreement after pre -concert i. e., an allegation of conspiracy, which was followed by concerted action in pursuance of‑the same. In this view of the matter, the present case fully covered by the dictum of their Lordships in Babu Lal Chankih's case i. e., that :‑ "If several persons conspire to commit acts in pursuance of a conspiracy . . . . . these acts are committed in the course of the same transaction. . .' . . . ." . The `community of purpose' and the `unity of action' which is clearly disclosed in the acts of the accused in the present case, therefore, serves to unify them into the `same transaction'.

16. The learned counsel for the‑accused/petitioner also relied on the above‑noted two cases. In addition he relied on Noora v. The State and Md. Mosaddar Hoque v. The State (the facts of which have already been given above), to emphasise that is those cases offences committed within a short span of time or at places close to each other, were held to be distinct offences, not forming parts of the `same transaction'. Raj Bahadur's and Sarwar's cases have already been discussed above, and shown to be inapplicable. In the remaining two cases (i. e., Noora and Mosaddar Hoque) relied upon by the earned counsel, no connection was‑ shown to exist between the various acts committed by the accused persons. 'In the present case, however, such connection clearly exists as all the accused were motivated by the same purpose. The cited cases are, therefore, clearly distinguishable. 17 The learned State counsel relied on The State v. Derajud- din (P L D 1962 Dacca 424), the facts of which are very similar to those of the ease in hand. It was held in that case that various offences committed by the accused were committed in the course of the `same transac tion. In that case, seven persons, namely, Derajuddin, Tasir, Jahir. Kukra, Khaibar, Ibrahim and Azi Hossain, were called upon to stand their trial before the Sessions Judge, Rajshahi. The two charges, common to them all, were :‑ (i) that they had committed the murder of Misri Molla and Srimolla and thus committed an offence punishable under section 302/34, P. P. C. and (ii) that they were members of unlawful assembly and in prosecution of the common object of the said assembly, assaulted Srimolla, Soleman and Sukalu and thus committed an offence punishable under section 148, F. P. C. " In addition, there was also a separate charge against Derajud din under section 302, P. P‑C. for committing the murder of a four‑months' old baby. The facts of the said case, briefly stated, were that Derajuddin was married to Mst. Kamala Bibi, daughter of Asiruddin complainant, who resided near the but of the accused. The couple got on well for some time and a son was also born to them. Later on, however, there was some estrange ment between them, as a result of which Mst. Kamala Bibi along with her infant son took up residence at her father's but for about six months prior to the date of occurrence. During this period Derajuddin made no provision for the maintenance of his wife and son nor took any steps to take them back. On 7th February 1960, however, he suddenly appeared at the house of Asiruddin complain ant. The latter asked the accused either to take back Mst. Kamala Bibi or divorce her. This led to an altercation. Derajuddin picked up a dao. from the verandah of the complainant's but and started assaulting him with the same. He also shouted that he would finish the entire family and immediately, put his right foot on the four‑month old baby daughter of Asiruddin, who was sleeping in the verandah, thereby causing her, instantaneous death. In the meantime, Ibrahim and Jahir accused also came there and caught hold of Asiruddin. Derajuddin rushed back to the house of his uncle Kukra (Co-accused) and brought back to three sulphis (spear‑like instruments). Tasir, Kukra, Khaibar and Azi accused also came up. Deraj handed over one spear to Tasir and another to Jahir, retaining one spear himself. Attracted by the noise Misrimolla, Srimolla, Sukalu P. W. 4 and Soleman P. W. 5 also turned up. The accused persons attacked them with their respec tive weapons which resulted in the death of Misrimolla and Srimolla. The trial Court convicted Derajuddin and Tasir accused sentencing them to death but acquitted the remaining five co -accused. The convicted accused filed an appeal to the High Court, where it was urged on their behalf that the joint trial of the accused, for various offences, was bad in law for the contraven tion of sections 233 and 239, Cr. P. C. The High Court while considering the expression `same transaction', occurring in section 239 (d), Cr. P. C. observed as follows :‑‑ "The tests employed by the Courts for determining whether separate offences committed in course of the same transaction are whether they are connected together by (i) proximity of time and place (ii) community of purpose and design and (iii) continuity of action. The two last are essential elements while the first is alone insufficient for a joint trial." After considering the facts of Md. Mosaddar Hoque v. The State, the Court distinguished the case before it on the ground that Deraj and his party‑men were carrying out their common purpose of assaulting Asiruddin and observed as follows :‑ "Thus it appeals to us that all these happenings, i. e. the trampling of the baby to death, the stabbing of Misrimolla by Deraj and the stabbing of Srimolla by Tasir, as alleged, are not isolated acts of inter linked incidents connected together not only by proximity of time and unity of place but also by a community of purpose and continuity of action so as to form one and the same transaction. Where, as in this case, two or more persons being animated by a common purpose, do certain acts constituting different, in the sense of not being the same offences, and there is continuity in their action, the various acts done by them in pursuance of that particular end in view, even though some of them may be merely accessory thereto, i. e. to the end in view shall be regarded as forming one single transaction."

18. It would be seen that in the case in hand also, all the accused were animated by the same purpose, i. e., the taking revenge for the murder of three of their relatives and the various acts committed by them were committed as a result of mutual consultation and prior concert. In this view of the matter, respect‑fully following the view expressed in the above‑noted authorities I find that all the acts committed by the accused form parts of the `same transaction'. The joint trial of the accused is therefore not hit by the provisions of section 235 (1) and consequently the trial is quite legal.

19. The question of applicability of section 537, Cr. P. C. to consider whether or not the joint trial is curable, is not relevant, because, in the present case, joint trial of the various charges is proper end in accordance with law. In view of the above discus sion the application for quashment of the trial proceedings is dismissed and the reference is disposed of accordingly.

20. Learned counsel for the accused has also applied for bail of the accused on the ground that if the trial is quashed due to the misjoinder of charges, the second trial is likely to take considerable time. He urged that as four years have already passed since the offences were committed, the accused are entitled to bail in view of the delay likely to occur as a result of the quashment. Since I have dismissed the application for quashment and held that trial is not vitiated as a result of the joint trial the above noted ground is not available to the petitioners. The bail applica tion too is, therefore, dismissed. Petition dismissed.