1970 P Cr (PLP)

Ghulam Hussain and Inayat Ullah were tried by S. A. Zulqarnain, Sub-Divisional Magistrate, Hafizabad in a single trial under separate charges framed under section 304-A, P. P. C. Both pf them were convicted. Ghulam Hussain was sentenced to rigorous imprisonment for a period of 11 years. Inayat Ullah was sentenced to rigorous imprisonment for a period of two years.

2. The convicts filed separate appeals which were disposed of by Mr. Ehsan-ul-Haq Sethi, Additional Sessions Judge, Gujrat (Camp Gujranwala) by a single judgment. The appeals were dismissed.

3. The above convicts have come up to this Court by filing separate criminal revisions, one preferred by Ghulam Hussain bears No. 347 of 1968 and the other preferred by inayat Ullah bears No. 375 of 1968. This judgment shall dispose of both these revision petitions.

4. Briefly stated the facts of the case are that on 5th July 1967, Shah Muhammad P. W. along with his wife Mst. Salehoon, his son Manzoor aged 10 years and his daughter Afst. Naziran aged 4 years, was travelling in Bus No. LEE-205, of which Inayat Ullah petitioner was the driver. When the bus arrived at the bus stand of Jalatpur Bhattian, another bus bearing No. LEB-7308, driven by Ghulam Hussain petitioner was standing there. Inayat Ullah directed the passengers, who had to get down at Pindi Bhattian to do so. As a result, amongst others, Mst. Salehoon wife of Shah Muhammad P. W., got down, but when she had done so, Ghulam Hussain driver of bus No. LEB-7308 put his bus in motion and as a result crushed down the lady under the rear wheels. She was removed to hospital, where she expired within about 15 minutes.

5. Shah Muhammad P. W. lodged the report of the incident at Jalalpur Bhattian Police Station, which is hardly about 1 I furlongs from the place of occurrence at 5-45 p. m.

6. As a result of the investigation, both the petitioners, who were drivers of two separate buses, were sent up to stand their trial under section 304-A, P. P. C. They were tried jointly in a single trial as is pointed out above and convicted.

7. An objection has been raised by the learned counsel for the petitioners in both the revisions, that the joint trial was illegal and it had caused prejudice to the petitioners in their defence. In support of their contention both of them have placed reliance on a judgment of the Supreme Court reported as Noor Ahmed v. State (1 PLD 1964SC 120). The facts of that case appear to be almost identical to the facts of the present case. The appellants of that case were drivers of two motor vehicles proceeding in the same direction. One of these was a motor bus, which was being driven by Noor Ahmad appellant and the other was a Chevrolet car driven by the appellant Rahim Bakhsh. The car was behind the bus, but near village Feroze Watuan, the driver of the car attempted to overtake the bus and almost succeeded in doing so, but its near bumper got entangled with the front bumper of the bus. The impact caused the car to turn turtle and it was pushed to the left side of the road where it crushed a pedestrian, named Muhammad Jamil and killed him. The police upon investigation, took the view that the collision and the death of the innocent pedestrian occurred due to the rash and negligent driving of both the drivers and, therefore, sent them up far- trial under section 304-A, P. P. C. before a Magistrate invested with powers under section 30 of the Criminal Procedure Code at Sheikhupura.

8. The Magistrate framed separate charges against each of them as is the case in the petitions now before me.

9. No objection was -taken by Noor Ahmed and Rahim Bakhsh as to the legality of the joint trial either in the trial Court or in the appeal before the Sessions Judge. In the High Court in revision, the legality of the joint trial was for the first time challenged on behalf of the appellant Rahim Bakhsh but the High Court took the view that although the drivers of the two vehicles could not be said to be acting in concert, yet since they both acted negligently in causing the collision, which resulted in the death of the pedestrian, it could reasonably be held that collision constituted one transaction and both of them could, therefore, be tried jointly for the offence which resulted from an act which was jointly committed by both of them, though they did not act in concert.

10. Leave was granted in these cases to consider whether, where the cases set up by two accused persons are directly in conflict and it is clear that they were acting independently of each other, they could in law be jointly tried?

11. After a discussion of the law on the point, their Lordships of the Supreme Court observed: -- "Even though sections 235 and 239 of the Criminal Procedure Code give a discretion to the Court to try certain persons and/ or offences jointly, yet there are certain considerations which are more fundamental than merely the convenience of the proceeding or trial which must he kept in view wheat deciding as to whether the discretion should in a given case be exercised or not. In a criminal trial, as we have already observed it is a fundamental principle that the trial of the accused persons should be conducted with the utmost fairness and anything which is likely to cause any serious embarrassment to him in the conduct of his defence should be avoided."

12. When we apply the aforesaid rule to law laid down by, their Lordships, we find that the petitioners have been prejudice Id in their defence. If they had been tried separately it would have been open to either of the petitioners to haze the other examined as a witness and, if necessary, to cross-examine him in order to establish as to who it was, who was responsible for the death of Mst. Salehoon. This valuable right of the petitioners has been taken away by their joint trial.

13. For the foregoing reasons, following the Supreme Court case quoted above with respect, I allow the revision petitions and setting aside the conviction and sentences of the petitioners, 6 remand their cases to the trial Court for re-trial separately in respect of the separate charges, already framed. Petition allowed. Case remanded for re-trial.