P L D 1959 (W (PLP)

To six months' rigorous imprisonment under section 225, P. P. C. The acntences have been ordered to run concurrently.

3. Ghulam Bart :‑ To a fine of Rs. 200 or in default to three months' R. 1. under section 332/34, P. P. C. To a fine of Rs. 100 or in default to one month's R, I. under section 323/34, P. P. C. To a fine of Rs. 200 or in default to three months' R. I. under section 225, P. P. C. The convicts have appealed to this Court against their con victions and sentences.

2. Briefly stated the prosecution case is that Muhammad Din, a maternal uncle of Rasul Bakhsh (P. W. 6), died issueless leaving occupancy rights in a piece of land. Before his death, Muhammad Din had, on the 7th of February 1956, deposited in the Tehsil, Rs. 70‑15‑0 and Rs. 170‑3‑0 vide Ex. P. D./1 (which is a copy of the original receipt) for the acquisition of the proprietary rights. Muhammad Din, however, died before the mutation could be effected in his name. On his death, his widow and his sister were his heirs. Rasul Bakhsh (P. W. 6)' inquired of Muhammad Amin appellant if he (Rasul Bakhsh) could inherit some of the land left by his uncle Muhammad Din. Muhammad Amin appellant is alleged to have replied in the affirmative and to have asked Rasul Bakhsh to pay a sum of Rs. 1,200 as bribe in order to get a share of the land. Bahawal Bakhsh (P. W. 10) and one Bashir, who were present, persuaded Muhammad Amin appellant to accept a sum of Rs.

600. It was then decided that a sum of Rs. 100 should be paid to Muhammad Amin appellant on the third day. Bahawal Bakhsh and the said Bashir stood surety for the payment of the balance of Rs. 500 when the muta tion was sanctioned in Rasul Bakhsh's favour. Rasul Bakhsh P. W. and Bashir came to Gujranwala on the 4th of February 1957, and contacted Rana Wali Muhammad (P. W. 5), Sub- Inspector Anti‑Corruption Department. They told him that Muhammad Amin appellant had demanded a bribe from Rasul Bakhsh. The Sub‑Inspector submitted an application to the Deputy Commissioner and obtained orders Exh. P. E/ I directing Mr. Muhammad Aslam Khokhar, Magistrate 2nd Class, to organise and supervise the raid. The Magistrate directed Rasul Bakhsh and Bashir to go to their village Talwandi Musa Khan. The Magistrate and the Sub‑Inspector reached the village at 6 p.m. on the same day. They went to the baithak of Bashir. Bahawal Bakhsh P.W. was also present there. The Magistrate recorded Rasul Bakhsh's statement` Exh. P. G. Rasul Bakhsh then produced fifteen currency notes of the value of Rs.

100. The Magistrate noted down the numbers of those currency notes vide Exh. P. G/1. The Magistrate also initialled each currency note. In the mean while, a servant. of Muhammad Amin appellant arrived and told Bashir that his master Muhammad Amin appellant wanted him. Bashir accompanied the servant and then came to the baithak accompanied by Muhammad Amin, Fazal Husain and Ghulam Bari appellants. Meanwhile, the Magistrate and the Sub- Inspector went out "of the baithak and took positions near a window opening into the baithak. On the arrival of the PatWari, Rasul Bakhsh P. W. handed over the currency notes (Exh. P. 1) to him. After accepting the notes, Muhammad Amin appellant put them in this pocket. In the meantime, the Magistrate and the Sub‑Inspector entered the baithak and disclosed their identities to Muhammad Amin appellant. Fazal Hussain accused was then present in the baithak. The Magistrate asked Muhammad Amin appellant to hand over the currency notes (Exh. P. 1) which he had accepted from Rasul Bakhsh. The appellant kept quiet. The Sub‑Inspector showed his identity card to Muhammad Amin appellant and told him that Mr. Muhammad Aslam was a Magis trate. Since Muhammad Amin appellant had failed to produce the currency notes, the Magistrate himself recovered the currency notes from Muhammad Amin appellant's pocket. The Magistrate and the Sub‑Inspector then told Muhammad Amin appellant that he was under arrest. Fazal Hussain appellant asked the Magistrate how he could arrest Muhammad Amin. While this talk was going on, Ghulam Bari appellant also turned up at the baithak. Fazal Husain and Ghulam Bari appellants began to struggle with the Sub‑Inspector to rescue Muhammad Amin who had been arrested. In the course of this struggle. Muhammad Amin and Ghulam Bari appellants snatched away the identity card from the hand of the Sub‑Inspector. Muhammad Amin appellant then shouted that there was no Magistrate or Sub‑Inspector and that they should be given a taste of dangs. On this, Ghulam Bari appellant went out in the street. Muhammad Amin and Fazal Husain appellant, however, continued to struggle with the Sub Inspector, and in the course of this struggle, all of them came Out of the haveli. Bashir chained the outer door of the haveli from inside. Rasul Bakhsh and Bahawal Bakhsh P. Ws. and Bashir helped the Sub‑Inspector. In the meantime, Ghulam Bari accompanied by Manzur Husain and Abdullah jumped into the courtyard armed With dangs. In their attempt to rescue Muhammad Amin appellant, they gave dang blows to the Sub‑Inspector, Rasul Bakhsh and Bahawal Bakhsh P. Ws. in spite of the fact that they were told that Muhammad Amin appellant had been arrested by the Sub -Inspector in the presence of the Magistrate. They succeeded in rescuing Muhammad Amin appellant. As already stated, the Sub‑Inspector, Rasul Bakhsh and Bahawal Bakhsh received injuries in the struggle.

3. After the departure of the appellants and those who have been acquitted, the Magistrate wrote the report Exh. P. G/2 and sent for Dr. Abdul Majid (P. W. 9) in charge of the dispensary, and directed him to examine the Sub‑Inspector, Rasul Bakhsh and Bahawal Bakhsh P. Ws. On their return to Gujranwala, the Magistrate and the Sub‑Inspector went to Police Station Sadar Gujranwala, and the Sub‑Inspector handed over the record of the proceedings relating to the raid to the S. H. O. Choudhri Fazal Ahmad, S. H. O. (P. W. 13) then recorded a formal first infor mation report Exh. P. R. at the instance of the Sub‑Inspector.

4. After investigation, Muhammad Amin, Fazal Husain and Ghulam Bari appellants, and Manzur Hussain and Abdullah, who have been acquitted, were sent up for trial before the Special Judge, Gujranwala. Muhammad Amin appellant being a public servant, sanction for the prosecution was granted by the District Magistrate as required by subsection (5) of section 5 of the Pakistan Criminal Law Amendment Act of 1948. All of them were tried jointly by the Special Judge. The trial was held according to Chapter XX of the Code of Criminal Procedure. When the accused appeared before the Court, the substance .of the accusations was stated to them in compliance with section 241 of the Code of Criminal Procedure. All of them denied the allegations against them and pleaded not guilty, but the learned Special Judge convicted the appellants and sentenced them as mentioned above.

5. The learned counsel for the appellants argued that Fazal Husain and Ghulam Bari appellants could not have been jointly tried with Muhammad Amin appellant. It has already been stated that Fazal Husain and Ghulam Bari appellants were charged with offences under sections 332/34, 323/34 and 225 of the Pakistan Penal Code. Section 3 of the Pakistan Criminal Law Amendment Act (XIX of 1948), as amended by section 2 of the Pakistan Criminal Law Amendment (Amendment) Act (IV of 1954) reads as under:‑ "3. (1) Offences specified in the First Schedule and offences notified by the appropriate Government in the Official Gazette may and offences specified in the Second Schedule shall be tried by Special Judges under this Act." The Second Schedule to Act XIX of 1948, as replaced by section 5 of the Pakistan Criminal Law Amendment (Amendment) Act (IV of 1954) reads :‑ "(a) Offences punishable under sections 161 to 166 and 168 of the Pakistan Penal Code and as attempts, abetments and con spiracies in relation thereto or connected therewith ; (b) offences punishable under sections 403 to 409, 417 to 420, 465 to 468, 471 and 477‑A of the Pakistan Penal Code and as attempts, abetments and conspiracies in relation thereto or connected therewith, when committed by any public servant as such of by any person acting jointly with or abetting or attemp ting to abet or acting in conspiracy with any public servant as such ; and (c) offences punishable under the Prevention of Corruption Act, 1947, and as attempts, abetments and conspiracies in rela tion thereto or connected therewith." The offences with which Fazal Husain and Ghulam Bari have been tried and convicted are not covered by the amended Schedule.

6. By section 5 of the Code of Criminal Procedure, offences under the Penal Code are triable according to the provisions of the Code of Criminal Procedure. Under section 28 of the Code, offences under the Penal Code are triable by the High Court or by the Court of Session of by any other Court by which offences shown in the 8th column of the Second Schedule are triable. Ghulam Bari and Fazal Husain appellants could only have been tried jointly with Muhammad Amin appellant if the conditions of section 239 (d) of the Code of Criminal Procedure were complied with. Acceptance of bribe by Muhammad Amin appellant was one transaction. Resistance to the lawful apprehension of Muhammad Amin appellant and voluntarily causing hurt to the A Sub‑Inspector with intent to deter him from discharging his duty was a separate transaction. In the circumstances, 'it has to be held that both Fazal Husain and Ghulam Bari were tried by a Court which completely lacked jurisdiction. Their convictions and sentences must, therefore, be set aside.

7. I now proceed to consider the validity of the conviction of Muhammad Amin appellant. It cannot be denied that the Court had jurisdiction to try him. He had been charged under section 5 (2) of the Prevention of Corruption Act, 1947, and sections 332/34, 323/34 and 224, P. P. C., i.e., the offences arising out of the same transaction. He could be properly tried by the learned Special Judge under the provisions of section 235 of the Code of Criminal Procedure.

8. Relying on Muhammad Anwar. Khan and another v. The State (Criminal Appeal No. 489 of 1957), Mr. Ijaz Ali, the learned counsel for the State, argued that if the convictions of Fazal Husain and Ghulam Bari are to be set aside and a retrial is to be ordered, the convictions and sentences of Muhammad Amin appellant would be maintainable. The facts of the case relied upon by Mr. Ijaz Ali are that Chaudhri Qadir Bakhsh,. Special Judge, jointly tried Muhammad Anwar Khan Patwari and Mehdi Khan. Muhammad Anwar Khan was tried under section 5 (2) of the Prevention of Corruption Act, 1947, while Mehdi Khan was tried under section 214, P. P. C. The learned Special Judge convicted Muhammad Anwar Khan of the offence with which he had been charged, and convicted Mehdi Khan under section 201, P. P. C. On appeal, Masud Ahmad, J. set aside the conviction and sentence of Mehdi Khan as he came to the conclusion that Mehdi Khan could not have been jointly tried with Muhammad Anwar Khan by the Special Judge. After having set aside the conviction and sentence of Mehdi Khan, the learned Judge directed the State to take such action as it considered necessary. The learned Judge, however, maintained the conviction and sentence of Muhammad Anwar Khan.

9. The question that requires determination is : When some persons are jointly tried and it is held that the trial was illegal for misjoinder of persons in respect of some of them, is the whole of the trial vitiated or is it vitiated partly. My own opinion, with due deference to my learned brother, is that in such a case the whole trial would be vitiated. My view finds ample support from Rattan Singh v. Emperor (A I R 1921 All. 151), Rattan Singh and his father Gurnam Singh were jointly tried and convicted by the Sessions Judge, Almora. Rattan Singh had been charged under section 302 and Gurnam Singh under section 202 of ‑the Indian Penal Code. Lindsay and Stuart, JJ. held that Rattan Singh and Gurnam Singh could not be jointly tried. Following the view of their Lordships of the Privy Council in Subrahmania Ayyer v. The King‑Emperor (I L R 25 Mad. 61), their Lordships of the Allahabad High Court held that the, disobedience of the express provision of section 239 of the Code C of Criminal Procedure as to the mode of a trial cannot be regarded as a mere irregularity. Lind y and Stuart, JJ. accordingly se aside the trial and directed a retrial of Rattan Singh under section 302 by the Sessions Judge of Bareilly. With regard to Gurnam Singh, their Lordships did not order a retrial as he had remained in custody for a sufficiently long time. Respectfully following their Lordships of the Allahabad High Court, I set aside the convictions and sentences of the appellants and direct that Muhammad Amin Patwari be retried separately from the others. K. B. A./A. H. Retrial ordered.