1980 P Cr (PLP)

2. The appellant is facing trial for offences under section 302/307, P. P. C. at present pending disposal in the Court of the learned Ex‑officio Additional Sessions Judge, Hyderabad: The prosecution version is that the applicant is related to the complainant Ghulam Hussain and resides in the same village Sometimes before the occurrence, P. W. Aagedino had filed a case against the applicant and his brothers, under section 107/117, C r. P. C. One day before the occurrence, applicant was allowed bail, in that case whereas the bail of his three brothers was cancelled. The applicant had suspected that the two deceased, namely, Dilawar and his brother Parial, were instrumental in getting their bail cancelled. He was, on that account, very much annoyed at the two deceased.

3. On the day of occurrence (23rd December, 1973) at about 7.30, in the morning, when deceased Dilawar; who was living in a separate house, nm his brothers, the deceased Parial and complainant Ghulam Hussain was going towards the City, while riding on his scooter, the applicant had, suddenly, come out from the bushes. where he was hiding and fired at the deceased Dilawar, from the pistol. The applicant was challenged by P. W. Aagedino. The applicant ran after P. W. Aagedino and fired at him but the shot missed him. Since deceased Dilawar was hit on his face and neck he fell down from his scooter and was found dead. After killing the deceased Dilawar, the applicant reached the house of Ghulam Hussain, where he found both, the complainant and his brother deceased Muhammad Parial, having their breakfast, in the house, where they were living together. He gave a call to deceased Mohammad Par' al, after entering inside the compound of the house. On hearing the call, the deceased Mohammad Parial went near the applicant, who told the deceased, that on the previous day, he had got the bail of his (applicant's) three brothers cancelled and had caused his brothers to be confined in jail and further that almost every day, he (deceased) was implicating their party; in false cases. While displaying hateful annoyance, he fired from a revolver, at the deceased Parial, which hit him on his chest and he fell down on the ground. On hearing the fire‑arm report, and alarm raised by the complainant, the, witnesses responded, and reached the place of occurrence. Consequently, report was lodged by the complainant at P. S. Phuleli, Hyderabad. The police took up the investigation and arrested the applicant,

4. It is admitted position, that the motive for committing the two murders of the two deceased brothers, is the same, inasmuch: as, the applicant suspected both the deceased to be instrumental for getting the bail of his three brothers cancelled, one day before the occurrence, for which he was enraged and wanted to take revenge. When the applicant started to accomplish his mission, he first met deceased Dilawar on the road: and shot at him, by the pistol and killed him at the spot. The applicant then proceeded to the house of deceased Mohamed Parial, within half an hour, where he fired at the deceased from his revolver and killed him in the house of the complainant. 5: The learned counsel Mr. Aftab Ahmed Akhund has argued that the joint trial of the applicant; for the murder of the two deceased, and attempt to murder P.W. Aagedino, an offence under section 307, P. P.C. is illegal, on the ground that the time, for committing the two murder of the two deceased brothers, was different. The places were also different. The weapons used for committing the two offences were also different and the set of witnesses, produced in support of the two occurrence' were also different. He has, therefore, contended that as required by section 233, Cr. P. C. it is mandatory 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, 239, Cr. P. C.

6. In support of his contention Mr. Akhund has relied upon the case of Noora, reported in P L D 1966 Lah. 383, in which the appellant was put on trial, in respect of two separate incidents, one was, of the murder of Mst. Allah Wasai, and the other of making the murderous assault on P. W. Ramzan. On consideration of the facts of that case, it was observed, that the two incidents did not form the part of the same transaction, as no evidence was led to suggest any connection between the two, However. it was held in the cited case that the joint charges of murder and that of murderous assault, could not be tried together. Since the amended section 537, Cr. P. C. made a misjoinder of charges, as an irregularity, in the proceedings, curable and it had not occasioned a failure of justice, this contention was rejected. However, in the instant case, there is evidence, which the prosecution is expected to lead, in order to substantiate the allegation of the three incidents forming part of the same transaction.

7. The cases relied upon by the learned counsel are P L D 1964 Lah. 339 :1974 P Cr. L. J 20 ; 1968 P Cr. L J 1634 ; P L D 1965 Pesh. 65 and 71 as well as PLD1976SC695.

8. I have gone through these cases. They are distinguishable. The contention. raised by Mr. Aftab Ahmed Akhund is not tenable. The facts of the instant case are clearly covered by section 235, Cr. P. C. which reads as under :‑ If, in one series of acts, so connected together, as to form the same transaction, more offences than one, are committed by the same person, he may be charged with, and tried at one trial, for, every such offence."

9. The offences in this case are alleged to have been committed in the same transaction with common object, where the motive for committing the two murders is same, and, in the process, attempt was made to murder P. W. Aagedino, who had challenged. the .applicant for apprehending him. I am of the view that the three instances, would constitute one transaction. The, real and substantial test, for determining, whether the offences are connected together, so as to form one transaction, "depends upon whether they are so related to one another, in point of purpose, or as cause and effect, or as principle and subsidiary acts, as to constitute one continuous occasion. Proximity of time, is not so essential, as the continuity of action and purpose. The three incidents in this case, indicate, the continuity of action and purpose. Mere difference in time or place, between the commission of one offence and of another, will not necessarily imply lack el of such continuity. In this case the commission of the alleged offences are so linked together that they form the same transaction.

10. I find no merit in the application which is accordingly dismissed. Application dismissed.