P L D 1954 Lahore 183 (PLP)

RAHMAN, J.‑On the evening of the 1st of April 1952, in village Sohawa Diwalian, Police Station Dumman, District Jhelum, one, Chaudhri Khan, son of Allah Ditta, aged about 23, was shot dead with a pistol, outside his house. He expired at the spot. During the night that followed, at about 3 a.m. his younger brother, Muhammad Aslam (P. W. 26). lodged the first information report at Police Station Dumman in which be alleged that the person who shot dead his brother was Muhammad Asghar, son of Fazal Khan, and that be was accompanied at the time of the incident by Sakhi Muhammad, Muhammad Razaq and Allah Ditta. The motive for the offence was said to be the grievance harboured by the accused persons on account of a liaison between the deceased and Mst. Ghulam Sarwar, a niece of Muhammad Asghar accused. Sakhi Muhammad is the husband of this woman. Muhammad Razaq is her brother and Allah Ditta a cousin of Mst. Ghulam Sarwar. According to the informant, Muhammad Asghar had complained to the deceased's father against his misconduct about one and a half months prior to the murder. The informant himself bad been abused and given a beating by Muhammad Razaq accused on account of the same grudge on the 31st of March 1952. This was reported to the deceased and the latter's uncle, Maula Bakhsh, who complained to Muhammad Razaq. Hot words were exchanged in consequence. During the investigation it was discovered that on the day of occurrence, Muhammad Asghar accused could not have participated in the incident at village Sobawa Diwalian because he had been involved in an affray with another person at Police Station Miana Gondal and had been locked up in the Thana there that day. Miana Gondal is about 40 miles from the spot. The police after completing their investigation, sponsored the story that the murder had been committed at the instance and abetment of Muhammad Asghar by four other persons, namely, Alli, Lalli, Malli and Nizam Din. Alli, according to them, bad fired the fatal shot when he was accompanied by Lalli, Malli and Nizam Din. The last‑named was tendered pardon in the case and became an approver. He was examined as such by the committing Magistrate as well as at the trial before the learned Sessions Judge. The committing Magistrate framed charges against both sets of accused under section 302 P. P. C. and committed both groups for trial to the Sessions Court. It was objected before the learned Additional Sessions Judge, Jhelum, Mr. M. A. Rahman, that the joint trial of all these persons would be illegal. The learned trial judge called upon the Public Prosecutor to argue the point but he apparently gave him no assistance in the matter and the learned judge then proceeded to try the accused jointly on the murder charge. He eventually acquitted the group of Sakhi Muhammad, Muhammad Razaq and Allah Ditta accused. He convicted Alli, Lalli, and Malli under section 302 read with section 34 P. P. C. and sentenced Alli to death and the other two to transportation for life. He convicted Muhammad Asghar accused under section 302 read with section 109 P. P. C. and also awarded him a sentence of transportation for life. Two appeals have been brought to this Court, one on behalf of Alli, Lalli and Malli, and the other on behalf of Muhammad Asghar. The sentence of death imposed on Alli has also been referred to this Court by the trial judge for confirmation under section 374, Criminal Procedure Code. This order will dispose of the two appeals and the reference together. Learned Counsel for the appellants have reiterated the objection before us that the joint trial of the two sets of accused persons in this case, who, according to the two stories before the Court, were involved in the murder to the exclusion of each other was not warranted by law and the trial was, consequently, vitiated. In our opinion, this objection is well founded and must prevail. Section 233 of the Code of Criminal Procedure prescribes that 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 cases mentioned in sections 234, 235, 236 and

239. Section 234 of the Code concerns the trial of a person accused of more offences than one of the same kind committed within the space of twelve months and has obviously no relevancy to the facts of the present case. Section 235 similarly is not pertinent as it provides for the trial of one person for more offences than one which may have been committed by him in the course of the same transaction, and further it permits the trial of one person for more than one offence to be spelt out of the various acts attributed to the accused person. Section 236 relates to a case where it is doubtful what offence is constituted by the single act or series of acts attributed to an accused and allows the accused to be charged for having committed all or any of such offences and to be tried for them at one trial or to be charged in the alternative with having committed some one of the said offences. The only section which can have a bearing on the case is section 239 of which clauses (a), (b) and (d) call for consideration. Under clause (a) persons accused of the same offence committed in the course of the same transaction, under clause (b) persons accused of an offence and persons accused of an abetment or of an attempt to commit such offence, and under clause (d) persons accused of different offences committed in the course of the same transaction, can be charged and tried together. It is obvious, however, that in order to attract the provisions of this section, the accused persons must have acted in concert to commit an offence. This section cannot possibly apply to a case such as the one before us, in which it is being alleged that either one or the other group of accused persons was guilty of murder and not that they all participated in the murder in collaboration with one another. The position seems to have been misconceived by the learned Public Prosecutor who conducted the case on behalf of the Crown before the trial Court as well as by the learned trial judge himself. If he had entertained any doubt on the point, he would have been well‑advised in ordering the two groups of accused persons to be tried separately. After all, the sections mentioned above are only enabling sections and do not‑compel a Court to try persons jointly. The object of joinder of charges or persons in one trial would be to avoid multiplicity of proceedings. But if the only result of such joinder is embarrassment to the persons being tried or to the Court, clearly such a course would to extremely undesirable. The learned trial judge would have avoided the error that he. committed if he had considered the case from this aspect. As it is, the error goes to the root of the case in as much as a statutory provision regarding the mode of trial laid down in the Code wash departed from. Such an error does not amount to a mere irregularity but involves an illegality which vitiates the trial. This principle was affirmed by the Privy Council in the well known case of Subrahmania Ayyar v. King‑Emperor, (I L R 25 Mad. 61.). The point is not bereft of authority although the learned Counsel who appeared on behalf of the appellants represented that they bad been unable to lay their hands on any reported decision bearing on the point. Reference may be made in this connection to Azim‑ud‑Din v. Emperor (14 Cr. L J 563. (S. B.).), Intaj Khan v. Emperor (A I R 1934 Rang. 193 (D. B.).) and Nga Sar Kee v. The King (A I R 1939 Rang. 390 (D. B.).) It follows that the convictions cannot stand and they are hereby set aside along with the sentences imposed on the accused thereunder. Normally there ought to have been a retrial of the present appellants on the accusation laid against them. Learned Counsel have, however, invited us to go through the evidence on record with a view to finding out whether it would be worthwhile ordering a retrial on the basis of this evidence or not. We have been taken through the evidence and consider that it would be subjecting the accused to needless harassment if we order a retrial in the present case. The principal witness against the appellants is Nizam Din approver. According to him he was an employee of Muhammad Asghar appellant and he commissioned him to contact the other accused in order to hire them for the murder. They fell to with the wishes of Muhammad Asghar and then Nizam Din conducted them to the deceased's house and pointed it out to them. In consequence, Ali fired the shot which killed the deceased. The other accused including the approver were present with him, except for Muhammad Asghar who had planned to create alibi evidence in his favour by going to Miana Gondal Police Station. Against Muhammad Asghar the only corroboration of the approver's statement, according to the learned trial judge, consisted in his conduct in creating this alibi. He thought that this was sufficient to prove his guilt under section 302 read with section 109 P. P. C. The learned judge has not referred to the evidence of motive in this connection Taking both these factors into consideration, we are, however, not convinced that this would have constituted sufficient evidence to be acted upon safely. We take note of the fact that besides Muhammad Asghar, according to one story at least, the husband of Mst. Ghulam Sarwar, a brother and a cousin of her's were involved in the murder. The motive was equally available against them as against Muhammad Asghar. Even if we assume that Muhammad Asghar had somehow come to know of a plan to murder the deceased, he may have gone to Miana Gondal deliberately to create an alibi so as to ward off suspicion against himself. The evidence is wholly circumstantial in character and in order to be a satisfactory basis for his conviction, it should be such as would suggest his connection with the commission of the offence in corroboration of the approver's statement We are not convinced that the element of doubt had been eliminated in the present circumstances, Supposing Muhammad Asghar had known that some member of his family was out to commit the murder as he may have overheard some conversation to that effect, his going away from the village is understandable as well as his attempt to save his own skin by an alibi. The inference would not be inevitable that he himself had procured the murderers. The case against Muhammad Asghar, therefore, would be doubtful. As against the other appellants, we have the testimony of P. W. 22 Karam Ali, P. W. 23 Tari and P. W. 24 Manak. The learned trial judge has placed no reliance on Karam Ali's evidence and, after having considered his statement and the reasons given by the trial judge, we are inclined to agree with his estimate of this witness's worth. This leaves us with Tari and Manak alone. According to their version, they had travelled from Khewra Railway Station in the same bus with Alli, Lalli and Malli accused and one other person unknown to them, who, the prosecution suggested, was the approver. The two witnesses were bound for Chakwal whereas these accused persons and the fourth man purchased tickets for Dhok Talian. This happened a few hours before the occurrence to be precise at peshiwela. No doubt their evidence would constitute corroboration of the approver's statement to that extent if their testimony was regarded as reliable. Manak, however, is admittedly a number‑ten badmash. Tari, though he denied it, appears to be his relative. They encountered these accused and the approver just by chance. Whereas they alleged that they had not seen the fourth companion of the three accused since that day till they saw him in Court, the approver asserted that the police showed him these two witnesses at Police Station Miana Gondal during the investigation and he identified them as the persons who had travelled with them. On this point both Tari and Manak contradicted the approver. Otherwise too, the statements made by these two witnesses are not at all impressive. Another circumstance, which is referred to as confirming the approver s statement, is said to be the recovery of an empty cartridge (Exh. P. 5) from a field near Sohawa Diwalian at the instance of Alli appellant. Evidence on this point was given by P. W. 19 Subedar Ahmad Din and P. W. 29 A. S. I. Malik Muhammad Yusaf, the investigating officer. The approver stated that Alli had thrown away the empty cartridge at random into a wheat field, when running away, after they had passed four or five such fields. The recovery witnesses would have us believe that Alli was successful in discovering this empty cartridge in about 10 or 15 minutes' time, after a search. This is unlikely to have been true, considering the circumstances in which the empty cartridge is said to have been thrown. Altogether, therefore, the alleged corroborative evidence appears to be a slender reed on which the prosecution have leaned. We are not prepared to attach much importance to this kind of evidence. The expert evidence to the effect that the empty cartridge recovered was fired from the pistol which the approver produced from his own house and which was said to be the weapon of offence loses all its significance in view of the above observation. In these circumstances we consider it unnecessary to order a retrial of the appellants. We, therefore, acquit them of the charges against them and order them to be released forthwith. The death‑sentence of Alli is naturally not confirmed. A. H. Appeal accepted.