P L D 1971 Peshawar 164 (PLP)

"Due to faulty and careless investigation by the police Hasham party and Mohammad Yousaf and party accused in cross cases vide F. I. R. Nos. 201 and 202 respectively have been grouped together in this case under section 302/34, P. P. C. and therefore we have got two sets of P. Ws. one set of the P. Ws. Abdullah Shah and Lakhar Khan have attributed the offence of murder of Mst. Sakina under sec tion 302/34, P. P. C. to Hasham accused and his sons, whereas Abdul Hamid P. W. has charged Yousaf accused and his three sons, namely, Jamroz, Zarif and Shahbaz for the alleged murder of Mst. Sakina deceased. Khushal P. W. 3 who is not an ocular witness to the case, the brother of Mst. Sakina deceased, is a common witness against both sets of the accused and has charged all of them for the murder of his sister. So far as the evidence of Abdullah Shah P. W. 2 goes, he has implicated Hasham accused and his two sons, but it bas not been clarified by him that which of the two sons of Hasham accused out of three challaned by the Police alongwith Yousaf party were meant by him. Similarly Lakhar Khan (P. W. 6) has also attributed the offence to Hasham and his two sons, without clarifying as to which of the two sons of Hasham accused out of the three challaned by the police were meant by him. The evidence of these P. Ws. though very weak against Hasham and party but still requires to be assessed by the Sessions Judge in a regular trial, whereas Abdul Hamid P. W. 8 has clearly stated that he had seen Yousaf and his three sons Jamroz, Zarif and Shahbaz while committing the offence. The evidence of the ocular P. Ws. coupled with the medical evidence makes out prima facie case against all the accused and, therefore, they, i.e. both the parties (eight accused) are committed to the Court of Sessions to stand their trial under section 302/34, P. P. C."

6. As earlier stated, Hasham, Gul Rehman, Momin and Shah Johan were separately committed to the Court of Session to stand trial on a charge under section 307/34, P. P. C. while Muhammad Yousaf, Jamroz, Zarif and Shahbaz were committed by another committal order to stand their trial in the Court of Session on a charge under section 307/34, P. P. C.

7. The present reference pertains to the committal of the 8 accused named earlier. The learned Sessions Judge in his order of reference dated 28‑10‑69 in para. 4 is of the opinion that "the commitment proceedings in the murder case of Mst. Sakina and the commitment of two sets of opposing persons charging each other for the murder by a single order are null and void. In the first place, there was no need to register a separate case for the murder of Mst. Sakina. The charge of murder of Mst. Sakina could be included in both the attempted murder cases against the two sets of accused and the decision on it left to Court. As this has not been done, and a third case challaned to Court and as the learned Magistrate had held a joint trial of two sets of the accused, who each throw the blame for the murder of Mst. Sakina on the rival set of accused, the commit ment proceedings and the committal order are illegal and cannot be maintained." The learned Sessions Judge, therefore, reported the case to this Court with the recommendation that the commitment of the 8 accused for the murder of Mst. Sakina be quashed and the committing Magistrate be directed to hold separate inquiries against each set of the accused in separate challans.

8. The reasons advanced by the learned Sessions Judge for the quashing of the commitment are, in my view, not weighty, in law, so as to attract an answer to the reference in the affirmative. Section 537, Cr. P. C. has been amended by Code of Criminal Procedure (West Pakistan Amendment) Act (XVII of 1964). Under the provisions of this amendment in clause (a) of section 537, any error, omission or irregularity in a "report by a police officer under section 173" does not vitiate the order of commitment passed by a Court of competent jurisdiction. The non‑inclusion of the charge of murder of Mst. Sakina in both the attempted murder cases against the two sets of the accused, but inclusion of the charge of murder of Mst. Sakina in one consolidated final report against the two sets of the accused is, therefore, not fatal to the commitment proceedings or the consequent joint commitment order.

9. Sections 233, 234, 235, 236 and 239, Cr. P. C. provide for the joinder of charges in the trial of offenders. Section 233 lays: "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 mentioned in sections 234, 235, 236 and 239." Under the provisions of section 239 (a) "persons accused of the same offence committed in the course of the same transac tion" and (d) "persons accused of different offences committed in the course of the same transaction" may be charged and tried together. These sections apply to trials and not to inquiries. It is not illegal, therefore, to jointly commit several accused persons for offences or hold a joint preliminary inquiry for commitment. Even where there is a joint commit ment, the Sessions Judge should bold separate trials strictly in accordance with section 233, Cr. P. C. In the present case a separate charge has been framed under section 302/34, P. P. C. against each set of four accused, but all the 8 accused have been committed to the Court of Session by a joint commit ment order. In re: Nalluri Chenchiah and others (A I R 1919 Mad. 45 (2)) it has been held:‑ "Section 239 only prohibits a joint trial and not a joint preliminary inquiry for the purpose of commitment to the Sessions." In Emperor v. Huseinalli Vilayatalli and others (A I R 1942 Bom. 212) it has been ruled:‑ "Section 239 which provides for joint trials, does not apply to enquiries held by the Magistrates in cases triable by the Court of Session. There is nothing to prevent the commit ting Magistrate from holding one inquiry against several accused although they could not be tried jointly consistently with the, provisions of section 239, and although one order of commitment might be made in respect of all the accused, it is competent to the trial Court to order separate trials in order to give effect to the provisions of the Code." In the matter of Govindu and another (I L R 26 Mad. 592) it has been laid:‑ "The sections of the Code or Criminal Procedure which relate to joinder of charges (including section 239) refer to the trial of the accused. The ruling in Subrahamnia Ayyar v. Emperor (I L R 25 Mad. 61), cannot be extended to a preliminary enquiry held by the Magistrate committing a case to a Sessions Court, so as to render the commitment itself illegal because there was mis-joinder of offences or of offenders. In such a case, the Sessions Judge, if he considers it necessary, can frame charges against and try the accused separately." In Rahimullah Khan v. Hayauddin and 4 others (P L D 1964 Pesh. 210) the learned Judge relying on the observations made in Noor Din v. Crown (P L D 1952 Lah. 185) at page 211 expressed the view:‑ "Since neither section 235 nor section 239 (d), Cr. P. Code, applies to the enquiry, I see no ground to interfere with the order passed by the enquiry Magistrate, but at the same time I would like to make it clear that in the event of commitment the learned trial Judge will hold separate trials strictly in accordance with the provisions of section 233, Cr. P. Code." In view of the quoted decisions, the holding of joint commitment proceedings against the two sets of the accused and their committal by one commitment order to the Court of Session amounts to irregularity and not illegality so as to e invalidate the commitment proceedings or commitment order. The learned Sessions Judge can himself cure the irregularity in the committal proceedings by holding separate trials of each of the set of the accused for the charge of murder of Mst. Sakina.

10. In conclusion, the reference is rejected. K. B. A. Reference rejected.