P L D 1953 Lahore 262 (PLP)

SHABIR AHMAD, J.‑--Muhammad Khan, Mehr Khan, Khan Bahadur son of Muhammad Khan, Khan Bahadur, son of Sikandar, Ahmad Khan, Fazal Nur, Dhuman, Zaru, Fazal, Ashraf, Khuda Dad and Painda have presented a joint appeal against the sentences imposed upon them by Mr. Bashir‑ud‑Din Ahmad, Sessions Judge, Jhelum. Of the above‑mentioned twelve persons, while the first live have been convicted under section 3021 149, P. P. C. others have been convicted of some other offences. Muhammad Khan appellant has been sentenced to death for murder and the learned trial Judge has referred the case to this Court for confirmation of the sentence of death. The appeal and the reference will be disposed of by this order. The incident out of which the case arises, took place shortly before sunset on the 20th of June 1952 and a report with regard to it was made next morning at about 7‑30 a. m. at Police Station Nile, in the District of Jhelum. According to the report, the first five appellants had attacked Gut Sher and caused his death and had also caused injuries to Kazam, a brother of Gut Sher and Mst. Fatima, his mother. After the murder of Gul Sher, the five assailants were going away when Nawab and some other relatives of Gul Sher arrived there and asked them why they had murdered Gut Sher. When this altercation was going on, the other appellants and five other persons, who, though tried along with the appellants, were acquitted, reached the spot and in the attack that ensued Nawab (P. W. 2), Sakhi Muhammad (P. W. 6), Mst. Sahib Nur (P. W. 7), Sultan Muhammad (P. W. 13). Sultan Sikandar (P. W. 14) and Mst. Arshan, who was not a witness at the trial, received injuries as did Khan Bahadur son of Sikandar and Khuda Dad appellants. All the seventeen persons sent up to Court were tried by the learned ` Sessions Judge at one trial and the twelve appellants were convicted as mentioned above. The learned counsel for the appellants contends that the trial was vitiated by misjoinder. His contention is that the transaction which resulted in the death of Gul Sher and injuries to Kazain (P. W. 4) and Mst. Fatima (P. W. 5) was entirely distinct from the transaction which resulted in injuries to Nawab (P, W. 6), Sakhi Muhammad (P. W. 6) Mst. Sahib blur (P. W. 7). Sultan Muhammad (P. W. 13) Sultan Sikandar (P. W. 14) and Mo. Arshan and, therefore, the persons concerned in the two incidents should have been tried separately. In order to decide if the contention of the learned counsel for the appellants is correct one has to see what the accusation was. If the transaction was the same according to the accusation, then section 239 of the Code of Criminal Procedure will have applica?tion and a joint trial will be permissible: otherwise section 223 of the Code of Criminal Procedure will apply and a joint trial will be against law. Reading the report one gets the impression that the intention of its maker was to show that there were two separate transactions. But the more relevant report is the report of the investigating police officer under section 173 of the Code of Criminal Procedure, because, in my view, in a case reported to and investigated by the police that report is the accusation for the purposes of section 239 of the Code of Criminal Procedure. The police officer sent up two challans under section 173 of the Code of Criminal Procedure, one relating to the incident which resulted in the death of Gul Sher and injuries to Kazam (P. W. 4) and Mst. Fatima (P. W. 5) in which the first five appellants were concerned, and the other about the incident in which all the twelve appellants and the five acquitted accused were concerned. The sending up of two reports make it clear that, according to the reporting officer, there were two separate transactions. Under section 233 of the Code of Criminal Procedure there must be a separate charge and separate trial for each offence, un?less the case falls under sections 234, 235 236, and 239 of that Code. In this case section 239 of the Code of Criminal Procedure which deals with a joint trial of more than one person is the one to be considered. The relevant part of section 239 reads as follows‑‑ "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 ; and (d) persons accused of different offences committed in the course of the same transaction." The language of the section makes it clear that though in a case falling under it joint trial of more than one person may be permissible, the Court is not hound to hold a joint trial and may try each of the accused person separately. It also makes it clear that to order that a joint trial of more than one accused may be held the persons sought to be tried together must have been accused either of having committed the same offence in the course of the same transaction or of having committed different offences in the course of the same transaction, or some of them must be accused of having committed an offence and the others of having abetted that offence or attempting to commit it or that they must be accused of having jointly within a period of 12 months com?mitted offences which were of the same kind within the ambit of section 234 of the Code of Criminal Procedure. The learned counsel for the Crown contended that if the charges framed different offences were committed by the accused persons in the course of the same, transaction, section 239 of the Code of Criminal Procedure will not bar their joint trial. In my opinion this contention has no force, as the section itself stakes clear that a charge is something entirely different from? an accusation and an accusation precedes a charge. The learned counsel for the Crown also contended that in a case tried by the Court of Session or the High Court the accusation for the purposes of section 239 need not be the report of the police under section 173 of the Code of Criminal Procedure but may be the evidence which is produced before the Magistrate who holds the enquiry under Chapter XVIII of the Code of Criminal Procedure. In mar view this contention also is without force, because it appears unlikely that the legislature intended that the meaning of the term accusation in a case triable by a Magistrate was to be something different from the meaning of that term if the case is tried by the Court of Session or by the High Court. In this connection I might refer to a decision of their Lordships of the Privy Council in Babulul Chaukhani v. King ?Emperor (A I R 1938 P C 130) wherein it was held that the question of the jurisdiction of a Court to try more than one accused at one trial was to be decided on considering the accusation and the ultimate result was not material for determining whether or not the trial was legal. The present case is converse to the one decided by their lordships of the Privy Council but in my view the principle applicable is the same, i.e., that the accusa?tion is to determine whether or not there can be a joint trial. In Noor Din v. Crown (1952 Pak L R 163 =P L D 1952 Lah. 195) a Division Bench of this Court, office which I was a member, has taken the view that where three persons were accused of committing a murder and only one of them was accused of committing another murder and the accusation did not say that the two offence were committed in the course of the same transaction or that the second murder was abetted by the other two accused persons, the joint trial of the three accused, of the three of them for the first murder and of one of them for the second murder, was not allowed by law. In the present case the persons accused of the second offence are more than those accused of the first but there is no difference between the recorded case and this one for the purposes of section 239 of thy Code of Criminal Procedure. The trial of the five appellants, who were accused of having jointly killed Gul Sher and causing injuries to Kazam (P. W. 4) and Mst. Fatima (P. W. 5) was allowed by clauses (a) and (d) of section 239 of the Code of Criminal Procedure as vas the joint trial of the twelve appellants and the five acquitted persons, all seventeen of whom had been accused of haring jointly caused injuries to some of the prosecution witnesses after the termination of the first incident, but the offences committed in the two transactions could not be tried together because the accusation did not allege that the two offences were committed in the course of the same transaction or that the five appellants responsible for the murder of Gul Sher bad been abetted by the twelve persons who were tried jointly with them for the other offence. In view of what I may said, I hold that the joint trial of the two transactions was not allowed by law and a; the trial offended against the provisions of the Code of Criminal Procedure a retrial must be ordered. I would, therefore, accept the appeal and order that the two offences shall be tried at separate trials. I further order that Fazal Nur, Dhuman, Zaru, Fazal, Ashraf, Khuda Dad and Painda appellants shall, during their trial, remain on bail to the satisfaction of the learned Sessions Judge, Jhelum. This order will not affect the acquitted accused persons. As the Sessions Judge, Jhelum, has already expressed his view on the evidence the cases will be tried by an Additional Sessions Judge. S. A. RAHMAN, J.‑--I agree generally and with the conclu?sion reached by my learned brother, as well as with the order proposed. I do not however feel it necessary to express a considered opinion on the question whether it would be permis?sible to examine the evidence recorded by a Committing Magis?trate in a case triable by a Sessions Court, to find out "accusa?tion" against the person under consideration. A. H.??????????????????????????????????????????????????????????????????????????????????????????????????? Retrial ordered.