P L D 1954 Lahore 84 (PLP)

Held, that the joint trial of appellants was not warranted bylaw. [Case‑law referred to] Sardar Muhammad 19bal for Appellants. Iftikhar‑ud‑din, for the Advocate‑General for Respondent. MUHAMMAD JAN, J.‑This order will dispose of two connected Criminal Appeals Nos. 324 and 334 of 1953. Sixteen men were challaned under sections 363, 366, 368 and.376, P. P. C. They were jointly tried for all the offences mentioned above. Eight of them were either discharged or acquitted and the remaining eight were convicted and sentenced as follows Fagira was convicted under section 366, P. P. C. and sentenced to seven years' rigorous imprisonment. He was also convicted under section 376, P. P. C., and sentenced to three years' rigorous imprisonment. The sentences were ordered to run consecutively. Muhammad Bakhsh, Muhammad Wali, Ramzan and Ghulam Nabi were convicted under section 366, P. P. C. and sentenced to five years' rigorous imprisonment each. Lal, Gulla and Khuda Bakhsh were convicted under section 368, P. P. C. Lal and Gulla were sentenced to seven years' rigorous imprisonment each and Khuda Bakhsh was sentenced to five years rigorous imprisonment. The learned counsel for the appellants has raised the objection that the abduction was a separate transaction from the concealment of the abducted woman and the joint trial of persons accused of offences which did not form part of the same transaction was illegal. He has relied upon the following cases in support of his contention. Durgamoni Dassi v. Emperor (43 C W N 196); where two persons were charged under section ; 68 of the Penal Code for separate acts of concealment in respect of the same girl ; it was held that the trial was illegal. Mozam Dafadar and others v. Emperor (A I R 1933 Cal. 563), where it was held that the trial of an accused charged under section 368 jointly with others charged under section

366. I. P. C. could net be supported because such trial must have prejudiced the defence. Nawab Khan and others v. Emperor (A I R 1929 Lah. 496) ; where it was observed that section

368. P. P. C. applied only in cases where abduction or kidnapping had already taken place. Joint trial of persons accused of abduction with persons accused of concealing or confining persons whom they knew to have been kidnapped or abducted was held to be illegal because the acts of abduction or kidnapping and wrongful confining or concealing did not form part of the same transaction. The learned counsel for the Crown has relied upon Kushal Malik v. Emperor (A I R 1924 Cal. 369), and Dosa v. Emperor (A I R 1928 Lah. 751). Both these cases were considered in Nawab Khan and others v. Emperor (A I R 1929 Lah. 496). Kushal Malik's case was not considered to be helpful for the purpose of deciding the question before the Court because it merely said that abduction was a continuing offence and in that particular case had continued for a very long time and covered many incidents. As regards Dosa v. Emperor (2) it was observed that the words of section 368, I. P. C. had not been considered in that case. The words referred to are "whoever knowing that any person has been kidnapped or has been abducted wrongfully conceals or confines such person". It was held that there could be no doubt that section 368 applied only where abduction or kidnapping had been completed and the wrongful concealment followed such completed abduction. The words "completed abduction" are perhaps not very appropriate because abduc tion is a continuing offence which can last for a long time and may include many incidents. What, in my opinion, was meant, is that section 368, P. P. C. can be brought into operation only after the offence of kidnapping or abduction has been committed, irrespective of whether it has reached its final stage or not. This is my own view too; though, in my opinion, the act of wrongful confinement or concealment can sometimes form part of the same transaction as the act of kidnapping or abduction. For example, a man abducts a woman and imme diately afterwards wrongfully confines her, the acts of abduction and confinement in such a case would, to my mind, form part of the same transaction on account of the unity of purpose and continuity of action and there should be no objection to his being tried under sections 366 and 368, P. P. C. at one trial, In this case, however, none of the persons convicted under section 368, P. P. C. had taken any part in the abduction. Lal was said to have concealed the abducted woman in his house a day after the abduction in village Tobha, situated at a considerable distance from village Chitti where she lived. She was alleged to have been taken there by train. Gulla was said to have concealed her in his house at Pind Makko which is still farther than the village of Lal, and Khuda Bakhsh was said to have taken part in her concealment in village Wadhan many days after the abduction. These alleged acts of concealment appear to be separate transactions from each other and from the original act of abduction. I am, therefore, of opinion that the joint trial of the appellants was not warranted by law. The convictions of the appellants and the various sentences passed against them are set aside and they are ordered to be retried according to law. They will remain in judicial custody as undertrial prisoners ; but, the trial Court will be at full liberty to consider the question of bail if they ask for it. A. H. Re‑trial ordered,