P L D 1952 Lahore 185 (PLP)

SHABIR AHMAD, J.‑Nur Din, Umar Din and Allah Ditta were tried jointly by Mr. Bashir Ahmad, acting as Additional Sessions Judge, Multan, and while Nur Din was sentenced to death for the murder of Dina, all the three were convicted under section 304, Part II of the Pakistan Penal Code, for causing the death of Mst. Saphian. Nur Din and Allah Ditta being sen tenced to ten years' rigorous imprisonment and Umar Din to three years' rigorous imprisonment for that offence. The pro ceedings have been submitted to this Court under section 374 of the Code of Criminal Procedure for the confirmation of the sentence of death passed on Nur Din and the three convicted persons have also presented appeals, the one by Nur Din against both the sentences passed on him being Criminal Appeal No. 492 of 1951, and the joint one of the other two being Criminal Appeal No. 530 of 1951. This order will dispose of the above matters. According to the prosecution, Mst. Saphian and Dina, her paramour, were killed on the night between the 17th and the 18th June, 1950, the motive being the resentment of the three convicted persons who are relatives of Mst. Saphian. The first information report was made at 6‑30 a.m. on the 18th June 1950, at Police Station Dunyapur, which is at a distance of about three miles from Deh No. 74 of Chak No. 321/W.B. in the District of Multan, where the incidents took place, by Haji Muhammad Mehar Din, Lambardar of Dunyapur, who mentioned therein that he had received information about the incidents from a confession made to him by Nur Din appellant. In the report it was stated that all the three persons reported against had at Ishawela (about 9 or 10 p.m.) on the previous night caused injuries to Mst. Saphian and that Nur Din alone had at Sargiwela (about 3 or 4 a.m.) caused fatal injuries to Dina, the paramour of Mst. Saphian. Mr. S. M. Haq, who appeared for the appellants in both the appeals, raised the question that the joint trial of the three convicted persons for the two incidents, in the latter of which only Nur Din appellant was concerned, was not allowed by law and that the proceedings of the trial Court were illegal. He added that as the joint trial was illegal a fresh trial be ordered and that as the injuries caused to Mst. Saphian were not of a serious character it should be directed that no further pro ceedings with regard to the injuries received by Mst. Saphian be taken. The point raised by the learned counsel for the appellants was raised before the trial judge, who disposed of it towards the end of his judgment in the few lines which are reproduced below :‑ " It was urged on behalf of the accused, that their joint trial was illegal, because the murder of Dina was a distinct transaction. This argument does not appeal to me, inasmuch as both the murders were committed in furtherance of the same scheme, and they arose out of the same transaction. All the accused started together for the set purpose of beat ing or killing the two deceased." Mr. Jamil Asghar, who represented the Crown, urged that the finding of the trial Court was correct and that there had been no misjoinder of charges or persons in the trial. He con tended that the evidence on the record justified an inference that the two murders were parts of the same transaction and, therefore, no objection could be taken to the trial as held. The provisions of the Code of Criminal Procedure, which are relevant for the purposes of deciding which of the two rival contentions is correct, are contained iri Chapter XIX and out of them sections 233 and 239, which will be referred to frequently in the sequel, read as follows :‑ Section 233.‑"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 239.‑"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 the‑ft, extortion, or criminal misappropriation, and persons accused of receiving or retaining, or assisting in the disposal or con cealment 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." Mr. Jamil Asghar's argument was that the case was covered by clause (d) of section 239 of the Code of Criminal Procedure as it was in the course of the same transaction that Mst. Saphian and her paramour Dina were killed, though the latter may have been killed about five or six hours later than the former was. It cannot be doubted that the two assaults were actuated by the same motive nor is it unlikely that both of them were planned by all the three appellants but in order to come to the conclusion that the two incidents, which took place at different times, were part of the same transaction, the Court must have before it some evidence, direct or circumstantial, in support of it, but such evidence is lacking in the present case. Moreover it appears to me that the question whether or not a joint trial with respect to two distinct offences, on the ground that they were committed in the course of the same transaction, was allowed by law, is to be decided not on the consideration of the evidence produced in the case but on the accusation made by the prosecution. In this connection I need only refer to a decision of their Lordships of the Privy Council in Babulal Chaukhani v, King Emperor, A I R 1938 P C 130, wherein it has been held that the accusation and not the eventual result will decide whether or not joint trial of more than one accused person was allowed by section. 239 of the Code of Criminal Procedure. The first information report about the two offences separated them by about six hours and did not even hint that the: second offence was committed by Nur Din as a result of a conspiracy between him and his two co‑accused or as a result, of abetment by them. Again in the report submitted by the police under section 173 of the Code of Criminal Procedure, it was clearly stated that the two incidents had taken place at the: times mentioned in the first information report and that while the three appellants were responsible for the first offence, only Nur Din was responsible for the second. Babulal Chaukhani v. King Emperor was a case converse to the present one as the result in that case showed that it was not covered by any of the clauses of section 239 of the Code of Criminal Procedure, though if the accusation were accepted, the case fell within the four corners of the section, but I can see no force in the contention that if the result discloses that offences were committed in the course of the same transaction the trial will not be vitiated even though the accusation did not show any connection between the different offences. Mr. Jamil Asghar contended that in a case tried by a Court of Session, on commitment by a Magistrate, the accusation is the charge framed by the Magistrate and not the police report under section 173 of the Code of Criminal Procedure. In my view this contention is entirely devoid of force because accusation must precede a charge and is obviously entirely different from it. But even if this contention were accepted the charges framed by the Magistrate, when committing the case to the Court of Session, do not help the prosecution. The charge with regard to the death of Mst. Saphian was against all the three accused persons while only Nut Din was charged in respect of the death of Dina. It is no doubt true, as pointed out by the learned counsel for the Crown, that it was not men tioned in the charges that the first incident took place at Isha time and the second about six hours later but this does not materially alter the position, because the charge against Nut Din does not in any manner connect the other two appellants with the murder of Dina. Considering the matter from all aspects I have arrived at the conclusion that the accusations in the present case do not even remotely suggest that the twos offences were committed in the course of the same transaction' and, therefore, clause (d) of section 239 of the Code of Criminal Procedure had no application at all. The question arises whether or not the matter is governed by any of the other clauses of section 239 of the Code of Criminal Procedure, and the joint trial with regard to the two offences was permissible. The learned counsel for the Crown urged that the trial would be legal if all the provisions con tained in Chapter XIX of the Code of Criminal Procedure were taken together. The argument was that the trial of Nut Din at one trial for the two offences, in which he had participated, was legal because it was allowed by section 234 of the Code of Criminal Procedure, which allows the joint trial of three offences of the same kind committed by an offender within the space of twelve months, and the joint trial of the other two appellants with Nur Din for the offence committed by them jointly could not be considered illegal. It is clear that the trial of Nur Din for the two offences would be perfectly legal if he alone were standing his trial, but it remains to see whether the joint trial of the three appellants was allowed by law. There are some decisions which support the contention of the learned counsel for the Crown, and those which fully support it are Emperor v. Mathuri and others, I L R 58 All. 695 and Niranjan v. Emperor, A I R 1934 All.

811. In I L R 58 All. 695, which is a decision of a Division Bench consisting of Mr. Justice (now Sir Trevor) Harries and Mr. Justice Rachhpal Singh, it was remarked that if persons can properly be charged and tried together under section 239 of the Code of Criminal Procedure, there is nothing to prevent other charges being added against one or more of such persons, if the addition of such charges is permissible by the Code, and the view taken by a learned Single judge of that Court in A I R 1934 All. 811 was accepted. Briefly the facts in I L R 58 All. 695 were that a house was burgled by night, jewellery was stolen, and two inmates of the house were murdered. Arising out of the occurrence a trial was held at which seven persons were tried together ; the first two were each charged under sections. 302 and 457 of the Penal Code, the third was charged with an offence under section 460, and the other four were charged with an offence under section 411, as some of the stolen jewellery had been found in their possession The first two were acquitted of the charge under section 302 and convicted under section 460, the third was acquitted and of the remain ing four only two were convicted under section

411. Against the judgment the convicted persons put in appeals and the Government presented an appeal under section 417 of the Code of Criminal Procedure, with a view to having the first two convicted under. section 302, and the third under sec tion

460. Objections against joinder of different charges were raised during arguments and the learned judges holding that persons charged under sections 457 and 460 of the Penal Code were not persons charged with offences which include theft, cannot, properly be tried with persons charged with receiving stolen property which was stolen in a theft which was commit ted as part of the transaction involving the other offences. Objection was also raised with regard to the joint trial of the offence of murder with the other offences and it was while dealing with that contention that the learned judges are reported at page 705 to have remarked as follows :‑ "In our view, however, if persons can properly be charged and tried together under section 239, Criminal P. C., there is nothing to prevent other charges being added against one or more of such persons if the addition of such charges is permissible by the Code." The learned judges had already held that offences under sections 457, 460 and 411 could not be tried together and, therefore, the remarks reproduced above were in the nature of obiter dicta. In A I R 1934 All. 811 the facts were that three persons were charged under section 411 of the Penal Code for receiving property stolen at one theft and one of them was in addition charged for another offence of the same kind for receiving stolen property within twelve months and the three accused were tried together. Bennet, J., who heard the case held that there was no illegality in the trial as there was nothing in section 239 of the Code of Criminal Procedure specifically stating that as regards one or more of the persons accused there should be no application to that person or persons of the previous sections of the Code such as section

234. The view taken by Bennet, J., was in conflict with the view expressed by the Allahabad High Court in Ram Prasad and another v. King Emperor A I R 1921 All. 246 and Ram Sahai and others v. Em peror, A I R 1921 All 408, both of which were D. B. decisions, but these cases were held by Bennet, J., not to be good law after the amendment of section 239 in 1923, by section 65 of the Code of Criminal Procedure (Amendment) Act, 1923 (XVIII of 1923). It is no doubt true that at the time when the decisions in A I R 1921 All. 246 and A I R 1921 All. 408 were given, section 239 of the Code of Criminal Procedure, which was the subject of interpretation, was slightly different, but it appears to me that there was no material difference between the section before and after the amendment as far as the question in issue was concerned. Before its amendment in 1923, section 239 read as follows :‑ Section 239.‑"When more persons than one are accus ed of the same offence or of different offences com mitted in the same transaction, or when one person is accused of committing any offence and another of abetment of, or attempt to commit, such offence, they may he charg ed and tried together or separately, as the Court thinks fit ; and the provisions contained in the former part of this Chapter shall apply to all such charges." The two learned judges, who decided the case reported in I L R 58 All. 695, and the learned Judge, who decided the one reported in A I R 1934 All. 811, appear to have thought that the amendment in 1923 of section 239 of the Code of Criminal Procedure had resulted in all the preceding sections of Chapter XIX of the Code becoming applicable to section 239, but that, as I would presently show, was not so. Before proceeding further I might dispose of the contention of the learned counsel for the appellants with regard to I L R 58 All. 695 and A I R 1934 All. 811, not having been correctly decided. In this connection reliance was placed by him on the words occurring in section 239 of the Code of Criminal Procedure after its clause (g). The argument was that Chapter XIX of the Code of Criminal Procedure was divided in two parts, the first consisting of sections 221 to 232 which occurred under the heading "form of charge" and the second of sections 233 to 240, which occurred under the heading "joinder of. charges" and when section 239 mentions that the provisions contained in the former part of the Chapter shall, so far as may be, apply to all charges mentioned in the section, the intention is that only the provisions of sections 221 to 232 could be invoked, if necessary, but not those contained in sections 233 to

238. The fact that sections 221 to 232 of Chapter XIX are grouped under one head and the rest of the sections under another, does at first sight support the conten tion, but when one considers all the sections of the Chapter id becomes apparent that the intention of the Legislature in using the words " former part of this Chapter" was that all sections ‑ in Chapter XIX, which precede section 239, were applicable to the extent to which they were not repugnant to the provision of that section itself. Thus section 236 deals with cases in which it is doubtful which of several offences a, single act or a series of acts constitute and makes it permissible that charges be framed and trial held with respect to all those offence or alternatively for some one of them. It is inconceivable that the Legislature intended that though the Court could frame alternate charges when the number of the accused was one, the Court lost that power in cases where the number of the accused exceeded one. Section 237 applies to those cases dealt with in the previous section in which it appears from the evidence that the accused committed an offence other than the one charged and makes it permissible to convict for the offence committed though a charge regarding it had not been framed. Section 237 is a corollary to section 236 and as section 236 applies to cases governed by section 239, section 237 cannot be held to be inapplicable thereto. Being clearly of the view that sections 2j6 and 237, which occur under the same heading under which section 239 does, are applicable to cases falling under section 239, I cannot accept the conten tion of the learned counsel for the appellants that the words "former part of this Chapter" in section 239 refer to sections 2.21 to 232 only and cannot, therefore, doubt the correctness of the decision in I L R 58 All. 695 and A I R 1934 All. 811, on the ground urged by him. Reference was also made during arguments to a decision of a Division Bench of this Court in Banshi Ram v. Crown, I L R (1944) 25 Lah. 145, wherein it was held that the combined effect of sections 236 and 239 (e) of the Code of Criminal Procedure was that a person charged with an offence under section 380 of the Penal Code, and in the alternative with an offence under section 420 of that Code, could be jointly tried with a person charged with an offence under section 414 of the Penal Code, in spite of the fact that an offence under section 420 of the Penal Code does not include an element of theft. This case, as I read it, is merely an authority for the proposition that section 236 and section 239 of the Code of Criminal Procedure may, in some cases, be jointly applicable. I have said already that my own view is that sections 236 and 237 of the Code of Criminal Procedure may in suitable cases apply in conjunction with section 239 and I need not, therefore, discuss the decision in I L R (1944) 25 Lah. 145, in any detail. It is true that the learned judges mentioned I L R 58 All. 695 and A I R 1934 All. 811, towards the end of their judgment but the question before the Bench was whether or' not joint trial of a person charged under section 380 and alternatively under section 420 of the Penal Code, with a person charged under section 414. of the Penal Code, was allowed by law, and the question dealt with in the two Allahabad cases did not arise at all. The case of the joint trial of two persons, one of whom is charged with an offence which is jointly triable with the offence charged against his co -accused, against whom there is also an alternate charge for an offence which cannot be jointly tried with the offence charged against the other is so different from the case of a joint trial of two persons one of whom is charged with two offences one of which has no connection with the offence charged against his co‑accused, that I cannot construe the mention of the two, above mentioned Allahabad decisions in the judgment in I L R (1944) 25 Lah. 145 to amount to accepting that what was said in them was a correct exposition of law. I might add that if the learned judges who decided I L R (1944) 25 Lah. 145 intended to lay down that I L R 58 All. 695 and A I R 1934 All. 811 had laid down the law correctly with regard to joinder of charges, I respectfully dissent from that view. Section 233 of the Code of Criminal Procedure makes it incumbent that for every distinct offence there shall be a separate charge and every such charge shall be tried separately, unless the case falls within sections 234, 235, 236 or

239. Sections 234 and 235 apply to cases of joinder of charges where there is only one accused person. Section 236 deals with alternative charges and applies, as already stated, to cases where there is one or more than one accused person standing trial. Section 239, which like the above mentioned three sections is an exception to section 233, applies to joinder of charges when the number of accused persons is more than one. Clause (a) of section 239 is applicable when all accused persons jointly tried took part in a transaction and committed the same offence, e.g., where a number of persons had com mitted a murder. Clause (b) applies in cases where some of the accused persons had committed an offence while the others had abetted it or some had committed an offence and others had attempted to commit it. Clause (d) applies to cases in which, in the course of the same transaction the accused persons have committed different offences. Clauses (e), (f) and (g) have no possible application to the present case and need not, therefore, be considered. I have already held that the two offences, which were the subject of trial in the present case, were not committed in the course of the same transaction and, therefore, clauses (a) and (d) of section 239 have no application. As mentioned already the prosecution did not even allege that the murder of Dina by Nur Din had been abetted by Umar Din and Allah Ditta and, therefore, clause (b) of section 239 has no application either. We are left with clause (c) of section 239 only and if it were found that that clause too has no application the inference must be that the joint trial was illegal. Clause (c) of section 239 is applicable to cases which would be governed by section 234 if the number of the accused did not exceed one with this difference that the clause does not limit the number of offences jointly tried to three as section 234 does. It is, however, in my view necessary that if two or more accused persons are to be jointly tried with regard to different offences of the same kind committed within a period of twelve months the accusation must be that all the offences were committed jointly by all of them. The word ' jointly ' in clause (c) of section 239 was employed with a purpose and cannot be overlooked when interpreting section 239 which is an exception to section 233, wherein it is enacted that unless the case falls within any of the sections 233, 234, 236 or 239, there shall be a separate charge and a separate trial for every offence. Apart from the interpretation of clause (c) of section 239 of the Code of Criminal Procedure, there is another considera tion which, if not overlooked, must lead to the result that I have already mentioned. Joint trials of different persons are allowed because they are accused of having committed the same or similar offences connected one with the other and if it were permissible to add against one of the accused persons charges which have no connection with the charge with respect to which all of them are being tried it is by no' means unlikely that the case of those accused persons who are not tried for the additional charges will be prejudiced. Confusion is also likely to result and as an accused person is to be given all reasonable opportunities to defend himself, a mode of trial which is likely to confuse any of the accused persons, must as far as possible, be avoided unless the law allows that procedure to be adopted. I might mention that a learned Single Judge of the Allahabad High Court has in Janeshar Das and another v. Emperor. (A I R 1929 All. 202) taken the view that the pro visions of section 239 of the Code of Criminal Procedure stand by themselves and the scope thereof cannot be extended by the use of the provisions of other sections of the Code. A similar view was taken by a learned Single Judge of the Rangoon High Court in Ah Kit v. Emperor (A I.R 1925 Rang 198), who held that there was no provision in the Code of Criminal Procedure which allowed the addition of a charge only against one of the persons being tried jointly. I am in respectful agreement with these two decision which, in my view, lay down the law correctly. Having looked at all aspects of the matter under con sideration I have arrived at the conclusion that the two offences could not be jointly tried as the trial was not allowed by any of the provisions of the Code of Criminal Procedure. This raises the question as to the order that should be passed, that is, whether the proceedings already taken be held to be void and the trial Court directed to proceed with the matter according to law, or the defects should be held to be immaterial if it were not proved that any prejudice had resulted to the appellants by the two references being jointly tried. One view about the above question is that there is no real distinction between an illegality and irregularity for the purposes of the Code of Criminal Procedure. According to this view, if the Court hearing the appeal, the revision, or proceedings for confirmation of a sentence of death, comes to the conclusion that the non‑compliance with the provisions of the Code of Criminal Procedure has not resulted in any prejudice to the accused person, the provisions of section 537 are applicable and the defect is curable. This view was taken by a Full Bench of the Allahabad High Court in, Kapoor Chand and another v. Suraj Prasad I L R 55 All. 3011 (F B) and in Emperor v. Mathuri and others I L R 58 All. 695) to the latter of which I have had occasion to refer to already. In the Full Bench case it was said that no distinction between an 'illegality' and aft 'irregularity' should be intro duced for the purposes of section 537 of the Code of Criminal Procedure, as the sole criterion given by that section was whether the accused person had been prejudiced or not. The learned judges added that the object of rules of procedure was to enable the Court to do justice, but, if in spite of even a total disregard of these rules, justice had been done, there would exist no necessity for setting aside the final order, which was just and correct, simply because the procedure adopted was wrong. The opinion of the Full Bench was naturally followed in I L R 58 All. 695, wherein also it was held that there was really no distinction between an 'irregu larity' and an 'illegality' for the purposes of section 537 of the Code of Criminal Procedure. No decision of any other Court, which might have taken the view taken by the Allahabad High Court, in the above two decisions, was referred to during arguments, nor have I come across any. In this connection the decision of their Lordships of the Privy Council in Subrahmania Ayyar v. King Emperor (I L R 25 Mad. 61) is the most authoritative pronouncement. It was held in that case that the trial of a person at one trial for forty‑one offences alleged to have been committed by him within the space of two years was an illegality as this course was not allowed by section 234 (1) of the Code of Criminal Procedure and could not be cured by section 537 of the Code of Criminal Procedure. In one of their later decisions in Abdur Rahman v. King Emperor (A I R 1927 P C 44) their Lordships considered non‑compliance with section 360 of the Code of Criminal Procedure to be a mere irregularity curable under section

537. The Full Bench which decided I L R 55 All. 301 and the Division Bench which decided I L R 58 All. 695, referred to Abdur Rahman's case and expressed the view that some remarks in that case would show that their Lordships of the Privy Council were of the opinion that the reason, for holding the trial considered in I L R 25 Mad. 61 to be bad, was not that the misjoinder of charges amounted to something more than an irregularity but that the irregularity had in fact occasioned a failure or denial of justice. In I L R 25 Mad. 61 their Lordships of the Privy Council expressed themselves in very clear terms, as is apparent from the following remarks which occur at pages 97 and 98 of the report :‑ "The remedying of mere irregularities is familiar in most systems of jurisprudence but it would be an extraordinary extension of such a branch of administering the criminal law to say that when the Code positively enacts that such a trial as that which has taken place here shall not be permitted that this contravention of the Code comes within the description of error, omission, or irregularity." The above words of their Lordships show clearly that they held that the non‑compliance with the provisions of the Code of Criminal Procedure which they were dealing with, was not a mere irregularity curable under section

537. In one of their more recent decisions in Babulal Chakhani v. King Emperor (A I R 1938 P C 130) their Lordships of the Privy Council did not consider as unwarranted the assumption by the High Court against whose orders they were hearing an appeal, that the infringement of the provision of the Code of Criminal Procedure dealt with in I L R 25 Mad. 61 was as illegality as distinguished from an irregularity ‑dealt with in A I R 1927 P C 44, though they proceeded to add that they did not deem it necessary to discuss the precise scope of what was decided in Subrahmani Ayyar's case. In these circumstances it is by no means rash ‑to infer that their Lordships of the Privy Council did not, when deciding Abdur Rahman's case, intend to say that the proceedings of the trial Court in I L R 25 Mad. 61 were set aside not because what had resulted was an illegality but because it was an irregularity more serious in character than the one in the case before them. It will 'not be out of place to mention that Sir Trevor Harries; who was one of the two learned Judges who decided the case reported in 'I L R 58 All. 695, took, in a case reported as Abdur Rahim v. The Crown I L R (1945) 26 Lah. 290 (F B) a view contrary to the one expressed in the Allahabad case. In the Lahore Full Bench case the leading judgment, which was concurred in by the other four learned judges, was given by Sir Trevor Harries who; while considering I L R 25 Mad. 61, is reported at page 313 to have said :‑ "In my view this case does not assist the appellant as it was expressly held that what had occurred in the case was such as to put it completely outside the ambit of section 537." The Full Bench decision in I L R 26 Lah. 290, expressed the view that an illegality resulting from an infringement of the provisions of the Code of Criminal Procedure was not curable under section 537 of that Code. After the considera tion of the provisions of law and the judicial decisions mentioned above I have arrived at the conclusion that there is distinction between an illegality and an irregularity for the purposes of section 537 of the Code of Criminal Procedure and, therefore, if the non‑compliance with the Code of Criminal Procedure in the present case amounts to an illegality it is not curable by section

537. I will now address myself to the consideration of the question whether what had occurred in the present case was an illegality or a mere irregularity. I will not attempt to give exhaustive lists o illegalities as distinguished from irregu larities but will only say that in my view where the non compliance with the provisions of Code of Criminal Procedure is with regard to a matter of a formal character, the result is an irregularity curable by section 537 of the Code, but where the non‑compliance amounts to a serious and substantial disregard of the provisions of the Code relating to the mode of conducting a trial, the result is an illegality. There is a long string of reported decisions which hold that a trial, in contravention of the relevant provisions of Chapter XIX of the Code of Criminal Procedure, is illegal, and the latest of these‑is the one given by my learned brother Kayani J, in Ghulam Muhammad v: Crown (P L D 1951 Lah. 11). I am in respectful agreement with the view expressed in these decisions and, as the relevant provisions of section 239 of the Code of Criminal Procedure were not complied with in the present case, I would hold that the trial was illegal and section 537 of the Code of Criminal Procedure cannot be invoked. The learned counsel for the Crown contended that as Nur Din could have been legally tried for the two offences at one trial the proceedings in so far as they were against him should be held to be legal and decision given in his case. This con tention I cannot agree with, because the trial was illegal and it is not possible to hold that though the whole of it was illegal parts of it were legal. For the reasons given above, I would set aside the proceedings of the trial Judge and remand the case for re‑deci sion according to law in the light of the remarks made above. As mentioned already the learned counsel for the appellants prayed that no retrial with regard to the injuries caused to Mst. Saphian be ordered, because. according to him, the injuries inflicted on her, though resulting in fatality, were not serious in character. None of the injuries suffered by Mst. Saphian was technically grievous in character, but as I cannot; agree that they were not serious in character, I do not accept the contention that a retrial with regard to the injuries caused to Mst. Saphian was not necessary. I might add that as inquiries into cases triable by the Court of Session are not' subject to the provisions of Chapter XIX of the Code of Criminal Procedure nor are there any other provisions in the Code requiring separate inquiry into separate offences the charges framed and the commitment order in the present case under Chapter XVIII of the Code were not invalid. The sentence of death passed on Nut Din is not con firmed, and Criminal Appeals Nos. 492 of 195, and 530 of 1951 are accepted to the extent that the appellants are ordered to be retried in the light of the remarks made above. M. R. KAYANI, J.‑In view of the greater weight of authority on the other side, if was not entirely with the confidence of a rope‑walker that I adopted the view of my learned brother, particularly because, as it seems to me, quite a great deal can be said‑and has been said in the past‑for both views. But I have no doubt now that this view should be preferred. This is a case in which Nur Din along with two others has‑been charged with one murder and Nur Din alone charged with a different murder committed by him the same night, in circumstances which, as my learned brother has pointed out, did not indicate the sameness of the transaction. If the transaction had been the same, the charges would have been covered by clause (d) of section 239 of the Code of Criminal Procedure. If the two offences had been committed jointly by all three persons, clause (c.) would have been attracted. As it is, the joint charge against all the three accused is covered by clause (a), while the two charges against Nur Din‑one joint with the other two, the other separate‑fall under section

234. The question, therefore, is whether clause (a) of section S239 can operate at the same time with section

234. It is said that what clause (a) of section 239 permits is that persons accused of the same offence committed in the course of the same transaction may be tried together, and that since Nur Din committed the first murder with two others in the course of the same transaction, the trial is in order. It is immaterial that he is also accused of another offence, and in order to give a confined meaning to clause (a), so as to exclude the second charge against Nur Din, there would be required words to cut down the normal meaning of the phrase "persons accused of the same offence committed in the 'course of the same transaction." To the extent to which Nur Din is charged jointly with the two others for the first murder, the argument sounds plausible enough; but when it requires us to forget that Nur Din has been charged separately for another murder, it ceases to be attractive. For one finds it difficult to forget that we are trying together persons for two separate offences, and the second of those offences has not been committed jointly by all these persons. When section 239 says that "the following persons may be charged and tried together", one meaning of what it says can be that if the conditions enumerated in that section exist, then apart from a joint trial of such persons, some one or other of such persons may in addition be tried for offences committed by them separately, provided this part of the trial is permitted by section

234. But there can be another meaning, and an equally effective meaning,‑that only such persons may be tried together as fulfil the conditions laid down in section 239, and that no other charge can be joined in the same trial. And considering that section 239 is an excep tion to the general rule enunciated in section 233‑the rule of a separate charge and a separate trial for every distinct offence it would appear that the second meaning is preferable. For where there is a rule and an exception thereto, then unless a case falls strictly into the language of the exception, it should attract the rule. It is of interest to note that section 239 in one of its own clauses‑clause (c)‑provides for the joint trial of several persons and several offences where such offences have been committed jointly. It is again of interest to remem ber that clause (c) was added to the Code only in 1923. It may be assumed that the addition was made because it was felt that in its absence the trial of several persons for several offences committed by them jointly would not be legal. But if such a trial were illegal, how could the trial of such persons be legal for offences committed by them, or one of them, separately? Now look at the same facts from a different angle. We are asked to hold that so long as two persons are charged together for one offence arising out of the same transaction, it is immaterial whether one of them is in addition charged for a different offence. If that be so, it is immaterial whether the other person is also charged for a different offence. If it so happens that the second offence in such case is the same offence, that is to say, this also has been committed jointly by the two persons, the immateriality gathers further momen tum and, consequently, the two persons could have been charged and tried together for the two offences, provided that they were offences of the same kind, although they did not arise out of the same transaction. That being the natural result of the argument, it was unnecessary to add clause (c) in 1923, although it is elementary that a statute is amended only because it does not fulfil a certain object at which the Legis lature is aiming. Further, this interpretation has the merit of being more just and convenient. There can be no doubt that the rule of one trial for one charge secures the maximum of benefit to the accused, and that exceptions have been provided only because, consistent with that benefit, there can be secured the maximum of convenience. Thus, where three persons have committed the same offence, it would be inconvenient for all parties to have the same twenty witnesses examined thrice, to say nothing of the expense to each accused. But if one of these three is simultaneously tried for a' different offence, the other two accused or their counsel will just look on while witnesses relating to that offence are being examined, and occasionally a witness who related to the first part of the trial may not be cross‑examined in the belief that he was concerned with the second part only. But if this procedure is permissible, then the following result will be perfectly logical. A and B are charged together for the murder of X committed by them jointly. B has also committed the murder of Y within twelve months. This charge can be tried with the joint charge. The murder of Y was committed by B jointly with C. Consequently C also can be tried with A and B. C has, within the same year, committed the murder of Z with the abetment of D. Consequently, the charge for the murder of Z can be included and C and D can also be tried. D has committed another murder, the murder of P, along with E. This process can be carried on to infinity. . The trial of A, B, C, D and E can, in this view of the case, be held together for the murder of X, Y, Z and P, although A has no knowledge of the murder of Y, B has no knowledge of the murder of Z and C has no knowledge of the murder of P. This, apart from being highly prejudicial to the accused, would appear farcical. It seems to me that the exceptions intended to draw a line some where, and that the line can be drawn most conveniently at the point where my brother proposes to draw it. A. H. Re‑trial ordered.