P L D 1979 Lahore 682 (PLP)

The facts leading to this petition are that Hamid Ahmad petitioner lodged First Information Report No. 81 of 1975, on 8th April 1975, at Police Station Thikriwala, with regard to an occurrence alleged to have taken place at 3‑30 P.M. within the premises of Canal Bungalow Aminpur, which is situated at a distance of one furlong from the police station in which Nazir Ahmad was stabbed to death. In the first information report, respondents 2 to 9 were named. The investigation in this case was conducted first by the local police and thereafter twice by the Crimes Branch. Both agencies submitted two separate reports under section 173, Cr. P. C. In the report submitted by the Crimes Branch, in addition to the accused initially named in the first information report, seven more persons (respondents 10 to 16) were also added. On completion of chal(ans, before the commencement of trial, the petitioner filed an application in the Court of Additional Sessions Judge, Faisalabad, praying for separate trial of respondents 10 to 16, who had been added later on. The learned Additional Sessions Judge after hearing the parties turned down the request of the petitioner by his order dated 20th September 1978. Thereafter the petitioner filed this petition under section 439, Cr. P. C. 2: As already observed initially the investigation in this case was conducted by the local police, who submitted an incomplete challan against respondents 2 to

9. Respondent No. 2 being dissatisfied with the investigation gave an application to the Crimes Branch for re‑investigation. The case was then entrusted to the Crimes Branch. It is alleged by the petitioner that the Crimes Branch confirmed the investigation conducted by the local police, but still respondent No. 2 was not satisfied. He gave another application and this time the investigation was conducted by the Superintendent of Police, Crimes Branch. He submitted a second report under section 173, Cr. P. C. as a result of which respondents 10 to 16 were also named as accused persons.

3. Learned counsel appearing in support of this petition submitted that the result of the two reports was that it gave rise to two different stories, which have to be proved by two different sets of witnesses. Learned counsel argued that in a situation like this the principle of law applicable would be separate trial and that would also be in the interest of justice. Before proceeding further, I may observe that the counsel appearing on behalf of the State did not support the cause of the petitioner.

4. Learned counsel drew _1 my attention to Chapter XIX of the Code of Criminal Procedure with special reference to sections 233 to

239. Emphasis was laid on sections 233 and

239. Section 233 is to the following effect :‑ "

233. Separate charges for distinct offences.‑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." It was on this particular provision on which learned counsel relied and submitted that a joint trial is an exception and separate trial is the rule.

5. Before discussing the contentions of the learned counsel for the partias, I would like to observe that I do not intend to discuss the facts and would not even refer to the contents of the two reports under section 173, Cr. P. C., because I am of the view that any observation made at this stage is likely to be misconstrued by the trial Court and may even prejudice the case of either side.