P L D 1987 Lahore 413 (PLP)

This revision under section 439, Cr.P.C. is directed against the order dated 13‑4‑1987 passed by the learned Addl. Sessions Judge, Sargodha holding that prima facie case under section 307, P.P.C. was made out against Fayyaz Ashraf, petitioner and he could be tried alongwith Umar Nawaz and .Mst. Kausar Parveen under Article 10 of the Offence of Zina (EOH) Ordinance, 1979.

2. The facts necessary for the disposal of the petition are that Alam Din, respondent got a case registered under Article 10 of the Offence of Zina and Section 307, P.P.C. against Fayyaz Ashraf, his brother Umar Nawaz and their girlfriend Mst. Kausar Parveen on 10‑11‑1986 on the allegation that Fayyaz Ashraf petitioner fired a pistol shot at his brother Umar Nawaz and Mst. Kausar Parveen when they were engaged in Zina causing injuries to both of then[. During investigation the case was found to be false and the medical evidence revealed that no injuries were found on the person of Umar Nawaz and Mst. Kausar Parveen and further that the latter was virgin. On the police report the case was cancelled and the accused were discharged on 2‑3‑1987 by the Ilaqa Magistrate. On 5‑3‑1987 Alam Din filed a private complaint. As the case was triable by the Court of Session, the learned Magistrate sent the case to the Court of Sessions Judge, Sargodha. The learned Addl. Sessions Judge, after recording the statement of Alam Din complainant, directed an inquiry under section 202, Cr.P.C. to be conducted by a Judicial Magistrate. The learned Judicial Magistrate submitted his report to the effect that prima facie a case was made out against Fayyaz Ashraf, Umar Nawaz and Mst. Kausar Parveen. Vide order dated 13‑4‑1987 the learned Addl. Session Judge on the basis of inquiry report issued non‑bailable warrants of arrest against the petitioner, Umar Nawaz and Mst. Kausar Parveen. The said order is impugned in this revision.

3. It is inter alia contended. that the trial of Fayyaz Ashraf, petitioner under section 307, P.P.C. with Umar Nawaz and Mst. Kausar Parveen under the offence of Zina Ordinance is not legally possible. It is stated that being a distinct offence it had to be tried separately. It is also argued that section 235, Cr.P.C. which permits trial for more than one offence cannot be pressed into service because the alleged offences are not connected together so as to form the same transaction committed by the same person. The offence of Zina was allegedly committed by different persons while the firing was made by a different person.

4. Section 233, Cr.P.C. lays down the general principle that every offence must be charged and tried separately. But section 239, Cr.P.C. permits a joint trial of several persons under the circumstances specified therein. Under Clause 'A' of Section 239 "persons accused of the same offence committed in the course of same transaction" can be jointly tried because the word "same offence" employs that both the accused should ‑have acted in concert or [A association with each other." The expression same transaction has been held to mean both the immediate cause or effect of an act. For a joint trial identity of purpose is a must. The offence alleged to beg committed by Fayyaz Ashraf petitioner cannot be said to be of the same kind committed in the course of same transaction.

5. Since in the present case the accused persons had acted independently and committed separate offences, their joint trial is not possible. Accordingly, I accept the revision, set aside the impugned order to the extent of joint trial of Fayyaz Ashraf, petitioner with Umar Nawaz and Mst. Kausar Parveen and direct that he should be tried separately from them. M . Y . H . / F‑28 / L Petition accepted.