P L D 1964 (W (PLP)

Pir Masoom Shah for Petitioner. Qazi Mohtadullah Khan for Respondents 1 to

4. Sher Bahadur Khan for the State. Date of hearing: 8th May 1964, The short question involved in this revision petition at the instance of a private complainant is whether in two cases of murder and attempted murder under sections 148, 302, 307 read with section 149, P. P. Code, and sections 302 and 307, P. P. Code, and the third case under the Arms Act against two of the accused in the second murder case, a joint enquiry is legal.

2. The learned Magistrate, who is seized of the cases, decided to hold a joint enquiry by his order dated the 6th of November 1963 and the order was upheld by the District Magistrate, Mardan. There is no doubt that the learned A Magistrate holding the enquiry referred to sections 235 and 239(d) of the Cr. P. Code in support of the order made by him, but we find that neither of the sections referred to above is applic able to enquiries. The learned counsel for the petitioner was notable to refer to any provision in the Code of Criminal Procedure forbidding such a course. He referred to Chapter XVIII which deals with enquiries into cases triable by the Court of Session or High Court. The provisions of this Chapter are of no help to the petitioner at all. The learned counsel for the petitioner also referred to Gopal v. The Crown (A I R 1950 Him. Pra. 18) but the authority cited by him is not directly in point. It was held in the aforesaid ruling that- "Section 239 (d) deals with three matters, accusation, charge and trial. It says nothing about verdict. The condition is expressed in the words 'persons accused of different offences etc. It does not say 'rightly accused' or 'accused and con victed'. It is on the basis of what appears on the face of the accusation that the Court may proceed to charge and try. The stage, therefore, at which it has to be decided whether the accused persons should be tried jointly or severally is the stage of accusation. In order to ascertain the stage of accusation, the first information report, the charge-sheet and the evidence adduced before the framing of the charge should be looked into in order to see that the accusations have not been varied in material particulars from stage to stage."

3. It will thus be seen that the provisions of section 239 (d), Cr. P. Code will be attracted to the trial and not to an enquiry. The A. A: G. relied on Emperor v. Huseinalli Vilayatalli and others (A I R 1942 Bom. 212) in support of the contention that section 239 does not apply to enquiries held by the Magistrates in cases triable by the Court of Session. The facts of the Bombay ruling are not on all fours with the facts of the present case. Since neither section 235 nor section 239 (d), Cr. P. Code, applies to the enquiry, I see no ground to interfere with the order passed by the enquiry Magistrate, but at the same time I would like to make it clear that in the event of commitment the learned trial Judge will hold separate trials strictly in accordance with the provisions of section 233 Cr. P. Code, and in this connection I would refer to the observations made by the late Chief Justice in Noor Din v. Crown (P L D 1952 Lah. 185). "When section 239 says that the following persons may be charged and tried together', one meaning of what it says can be that if the conditions enumerated in that section exist, then apart from a joint trial of such persons, some one or other of such persons may in addition be tried for offences committed by them separately, provided this part of the trial is permitted by section

234. But there can be another meaning, and an equally effective meaning, that only such persons may be tried together as fulfil the conditions laid down in section 239, and that no other charge can be joined in the same trial. And considering that section 239 is an exception to the general rule enunciated in section 233-the rule of a separate charge and a separate trial for every distinct offence, it would appear that the second meaning is preferable. For where there is a rule and an exception thereto, then unless a case falls strictly into the language of the exception, it should attract the rule."

4. With these observations I proceed to dismiss the revision. The stay-order is vacated. S.Q. Petition dismissed.