P L D 1963 (W (PLP)

S. Ghulam Raider Shah for A. G. for Respondent. Husain Shah, Ali Husain, Zafar Husain and Zakir Husain, who are brothers, have filed this revision petition against the order dated the 10th of May 1962, of Sh. Muhammad Ishfaq Ali. Additional Sessions Judge, Montgomery, whereby the appeal of the four aforesaid petitioners against the judgment dated the 29th of December 1961, of Sh. Naseer‑ud‑Din Ahmad, Magistrate, 1st Class with section 30 Powers, Pakpattan, was dismissed. The learned Magistrate had convicted Husain Shah under sections 224, 379 and 325, P. P. C. and had sentenced him to one year's rigorous imprisonment, one year's rigorous imprisonment and two years' rigorous imprisonment, respectively, All Husain, Zafar Husain and Zakir Hussain were convicted under sections 225 and 325, P. P. C. and were sentenced to one year's rigorous imprisonment each for the former offence and to two years' rigorous imprisonment each for the latter. 2. Briefly, the prosecution case is that on the night between the 8th and 9th of February 1961, Halim (P. W. 2) and Sadiq Muhammad (P. W. 5) were having a round of their fields as for some time they bad been noticing that their fodder crop was being stolen away. On this night, they surprised Husain Shah petitioner in the act of cutting their fodder crop. On seeing these witnesses, Husain Shah ran away from the field, but they gave him chase and were successful in capturing him. They brought him to their well and tied him to a keekar tree so, that he might be taken to the police station in the morning. Early in the morning on the 9th of February 1961, Halim (P. W. 2), Sadiq Muhammad (P. W. 5) and Bashir (P. W. 6) started for Police Station, Abmadyar, along with Husain Shah, but had gone a short distance when the three other petitioners, namely, Ali Husain, Zafar Husain and Zakir Husain, came up armed with dangs and opened assault on the captors of Husain Shah for the purpose of rescuing him. The consequent noise brought to the spot Mst. Sajadan (P. W. 4) and Sultan (P. W. 3). When they tried to prevent the rescue and escape of Husain Shah, they were also assaulted for their pains. The result of this assault was that Husain Shah made good his escape, and Sultan, Mst. Sajadan, Sadiq Muhammad and Basbir P. Ws. received injuries on their respective persons. During this incident Husain Shah and Zafar Husain also received some injuries. Halim P. W., lodged the first information report Exh. P. E. at Police Station Ahmadyar, which is at a distance of about eight miles from the place of the occurrence, on the same day. 3. Chaudhri Muhammad Iqbal Bajwa (P. W. 9), Station House Officer, Police Station Ahmadyar, conducted the investi gation of the case and sent away the injured prosecution witnesses, Sadiq Muhammad, Mst. Sajadan, Bashir and Sultan, as also the two injured petitioners, Husain Shah and Zafar Husain, for their medical examination. Dr. Habib‑ur‑Rahman (P. W. 1), who examined the injured persons on the same day, found two injuries on the person of Sultan P. W. one of which was grievous, the other being simple. Sadiq Muhammad P. W. was found to have two simple injuries. Mst. Sajadan P. W. had three injuries, two grievous and the third simple. Out of these two were fractures of ulna bone. There were five injuries on the person of Bashir P. W. Injury No. 2, which was a fracture of a bone of the left hand, was grievous, while the remaining four injuries were simple in nature. Husain Shah petitioner was found to have four injuries, out of which injury No. I was grievous, being a compound fracture of both the radius and ulna bones, while the remaining three injuries were simple in nature. Zafar Hussain petitioner was found to have only one simple injury. 3A. The petitioners pleaded not guilty and ascribed the case to a suspicion on the part of the complainant party that Husain Shah had illicit intimacy with Mst. Sajadan P. W., the wife of Bashir P. W. They produced four witnesses in their defence. 4. Apart from criticising the judgments of the lower Courts on merits, the learned counsel for the petitioners contended that the trial of the petitioners stood vitiated on account of mis-joinder of charges and accused persons. He urged that neither the alleged offences under sections 379, 224 and 325, P. P. C. of Husain Shah petitioner were committed in the course of the same transaction, nor can the alleged offences under sections 225 and 325, P. P. C. of the other three petitioners be said to have been committed in the course of the same transaction during which the alleged offence of theft was committed and that thus the case of the petitioners neither fell within the purview of section 235 nor within that of section 239 of the Criminal Procedure Code. In support of his contention the learned counsel for the petitioners cited Tilakdari Mahton and others v. Lali Singh (9 Cr. L J 147). In that case two accused persons, who were alleged to have committed theft together, were tried, along with some other persons, who had rescued one of the alleged thieves, for offences under sections 225 and 379 of the Penal Code. The High Court of Calcutta, by the aforesaid judgment, held that charges of theft and rescuing an offender could not be tried together and that when there had been one trial in respect of both offences, the case was within the purview of Subrahmania Ayyar v. King Emperor (28 I A 257) and new trial must be directed. In the Subrahmania's case referred to in the aforesaid judgment, it was held that when there is misjoinder of charges, it is not a case of irregularity but of an illegality which vitiates the trial. To the same effect was the view of the Patna High Court expressed in their judgment in Sudia Bhuskaulia and another v. The King (A I R 1950 fat. 210). This case related to an accused who was captured by the owner while he was cutting the gram crop in his field, and when the thief was being taken to the village, his brother and father came up, and, finding their demand for the release of the culprit, ineffective assaulted the captor, which assault resulted in simple and grievous hurts on the person of the captor. Both the alleged thief and his rescuers, who had caused hurts to the captor, were tried together for offences under sections 379, 323 and 326, Penal Code, but it was held by the High Court in the aforesaid judgment that "it is quite obvious that the offence of theft was quite separate from the offences under sections 323 and 326 and should not‑ have been tried together." This means that after the offence of theft has been completed, if anybody seeks to rescue the thief and, in the course of the attempt at rescue, causes some hurts to the captor of the thief or the person who is in lawful charge of the thief such person or persons cannot be said to have committed the offence laid to their charge in the course of the same transaction during which the theft had been committed. The learned counsel for the State has not been able to cite any authority taking a different view of any case of a similar nature. It appears to me that in the present case the act of theft became a complete transaction after Husain Shah had cut away the fodder and in any case, did not extend beyond the stage at which he was captured by Halim and Sadiq Muhammad P. Ws. The subsequent acts of Husain Shah of making good his escape after joining in an assault on the injured prosecution witnesses, with the other three petitioners who had joined him in getting his release, do not form part of the same transaction, which began with the theft of the fodder‑crop and ended with the capture of Husain Shah petitioner. The contention of the learned counsel for the petitioners, in my opinion, cannot be rejected as unten able. 5. As I am accepting the contention of the learned counsel for the petitioners that the trial of the petitioners stood vitiated on account of misjoinder of offences and persons, it is unnecessary to examine the case on merits. I, therefore, accept the revision petition. The convictions and the sentences of the petitioners are set aside and they are ordered to be separately tried, that is to say, Husain Shah should separately be, tried on the charge of theft, and he and the other three petitioners should be tried together in a separate trial for offences under sections 224, 225 and 325, P. P. C. The petitioners are released on bail in the sum of Rs. 3,000 each with one surety each in the same amount to the satisfaction of the District Magistrate, Montgomery, who shall try the petitioners himself or entrust the trial to some other Magistrate competent to dispose of the cases. K. B. A. Petition accepted Retrial ordered.