1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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 accusedthere 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."
7. 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.
8. I would, therefore, only confine to the legal proposition in this petition and now proceed to discuss the submissions of the learned counsel for the petitioner in the light of the case-law as well as the statutory provisions referred to above.
9. Relying on Nur Elahi v. The State PLD 1966 SC 708 learned counsel argued that the principle laid down therein is applicable in the present case as well. Learned counsel relied on the following observations :- "This procedure is being suggested to avoid a difficulty that might otherwise confront the complainant. If the police challan is taken up first for trial, the complainant would be under a handicap in so far as he would not be in a position to cross-examine the witnesses for the prosecution."
10. He then cited Noor Ahmad v. The State PLD 1964 SC 120 wherein it had been observed : "The provisions of sections 235 and 239 of the Criminal Procedure Code vest, in our view, a discretion in the Court to try offences of the kinds indicated therein jointly in the circumstances therein mentioned, but there is nothing in them to indicate that the Court is bound to try such offences or persons together in every case. The discretion vested in the Court by these sections is expected like any other discretion vested in a Court of law to be exercised upon sound judicial principles and in the light of the facts and circumstances of each case. It is obvious that where such a joint trial is likely to embarrass an accused person or cause some serious hardship to the defence, it goes without saying that the Courts ought not to exercise this discretion."
11. Reliance was then placed on Ali and others v. The Crown PLD 1954 Lah. 183 wherein section 239, Cr.
12. P. C. Came under examination. Learned counsel laid emphasis on the following observations : "It is obvious, however, that in order to attract the provisions of this section, the accused persons must have acted in concert to commit an offence. This section cannot possibly apply to a case such as the one before us, in which it is being alleged that either one or the other group of accused persons was guilty of murder and not that they all participated in the murder in collaboration with one. Another. The position seems to have been misconceived by the learned Public Prosecutor who conducted the case on behalf of the Crown before the trial Court as well as by the learned trial Judge himself. If he bad entertained any doubt on the point; he would have been well-advised in ordering the two groups of accused persons to be tried separately. After all, the sections mentioned above are only enabling sections and do not compel a Court to try persons jointly. The object of joinder of charges or persons in one trial would be to avoid multiplicity of proceedings. But if the only result of such joinder is embarrassment to the persons being tried or to the Court, clearly such a course would be extremely undesirable. The learned trial Judge would have avoided the error that he committed if he had considered the case from this aspect. As it is, the error goes to the root of the case inasmuch as a statutory provision regarding the mode of trial laid down in the Code was departed from. Such an error does not amount to a mere irregularity but involves an illegality which vitiates the trial."
13. Reliance was also placed on Samiullah Sahib v. King-Emperor AIR 1927 Mad. 177 where it had been observed :- "The only general rule is that whenever the applicability of section 239 is doubtful, it is far better that it should not be applied and that accused should be tried separately."
6. Raja Muhammad Anwar, learned counsel for the respondents submitted that this petition has been filed against the interim order and the normal practice of this Court is not to exercise its revisional jurisdiction unless the order impugned is either perverse or resulted in grave and serious miscarriage of justice. Leaned counsel submitted that the discretion exercised by the trial Court being in accordance with law called for no interference by this Court. In support of this learned counsel relied on Faqir Muhammad v. Crown P L D1949 Bal. 20.
14. It was next contended that the Public Prosecutor is to conduct the case from the side of the State and it is clear from the order of the trial Court that he never requested for a separate trial. Learned counsel submitted that joint trial would not, in any manner, cause any embarrassment either to the complainant or the Public Prosecutor nor would be in conflict with the accepted principles governing the administration of justice.
15. Learned counsel further submitted that the plain reading of subsection (a) of section 239, Cr. P. C.
16. (reproduced below) left no room for doubt that in this case joint trial is fully covered by the aforesaid provision of law "239. What persons may be charged jointly.-The following persons may be charged and tried together, namely :
(a) persons accused of the same offence committed in the course of the same transaction ; Learned counsel argued that the accused persons in the present case are connected with the same offence which was committed in the course of the same transaction.
17. According to the learned counsel that although the word used in the aforesaid provision is "may" but there is no dearth of cases where this word had been interpreted as "shall" and, therefore, the word `may' in this case would have a mandatory force, otherwise the remaining subsection would be rendered redundant.
18. Relying on Mian Abdul Majid v. The Chief Administrator of Auqaf PLD 1972 Lah. 66 learned counsel submitted that when Legislature desired a thing to be done in a particular manner then that should he done in that and that manner alone.
19. Last of all learned counsel relied on Nawab v. The State PLD 1966 Lah. 300. In this case sections 233 and 239, Cr. P. C. Were examined by Muhammad Afzal Cheema, J. (as he then was) and after discussing the relevant case-law the learned Judge observed:- "I need hardly go into these authorities as besides their distinguishability, the fact remains that no prejudice has been caused to the appellants by the mode of trial resorted to by the learned trial Court which is invariably the governing principle in all such cases."
7. I have considered the submissions of the learned counsel for the parties and have also gone through the case-law. In the case of Nur Elahl v. The State, leave was granted to consider the question whether the special procedure resorted to .By the trial Judge had the sanction of law and it was in this sequence that the matter was re-examined and ultimately the Supreme Court suggested a procedure which was thought befitting and in the interest of justice.
20. On merits the position was that for the murder of, Muzaffar Piracha, a case under section 302, P. P.
21. C. Was registered against Ch. Zafar-ul-Haq, Ikram-ul-Haq and Nawaz-ul-Haq. The police decided to prosecute only Ch. Ikram and Banards. Ch. Zafar-ul-Haq ' and his son Nawaz-ul-Haq were mentioned in Column No. 2. Nur Ilahi then filed a complaint in which he gave his own version. A question arose as to how t)ae complaint and the chafan case were to be dealt with. This is not the position in the present case.
22. Similarly the dictum of the Supreme Court in Noor Ahmad v. The State was that if the Court found that a joint trial was likely to result in embarrassment to either side then discretion should not be exercised in favour of a joint trial. In other words, the matter was left to the trial Court to exercise his judicial discretion keeping in view the facts and circumstances of each case.
23. So far as AN and others v. The Crown was concerned, there it was observed that if a joint trial causes any embarrassm ent to the person being tried then such a course was not desirable. I do not think any such situation arises in this case and for this I shall give reasons later on.
8. After hearing the learned counsel for the parties and going through the case-law, referred to above,'I am of the view that the two relevant sections to be examined in this particular case are sections 233 and 239, Cr. P. C. The wording of section 233, Cr. P. C. Is clear and that is that 'for every distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately . . ' The section then refers to exceptions which are contained in sections 234, 235, 236 and 239. Sections 234, 235 and 236 are not applicable in this case. Section 239 defines the category of persons who may be charged and tried together. According to section 239(a)'persons accused of the same offence committed in the course of the same transaction' are to be tried together.
24. The word 'offence is defined in section 4(c), Cr. P. C., which means 'any act or omission made punishable by any law for the time being in force .....
25. In this case, admittedly there are two different reports under section 173, Cr. P. C. It is also an admitted position that the case was investigated number of times by different police officers and even by different agencies. So the first question to be considered is what will be the effect of two reports by two different agencies and how would that effect the operation of sections 233 and 239, Cr. P. C.
26. As already observed by me, to begin with only respondents 2 to 9 were held responsible for the alleged incident, but by the second report the remaining respondents were added. But the action of the Investigating Agency did not change either the offence committed or "the course of the same transaction".
27. Section 173, Cr. P. C. Deals with the report of police officers and according to this provision, every investigation under Chapter XIV of the Cr. P. C. Has to be completed without unnecessary delay and as soon as it is completed the officer in charge of the police station is required to forward it to a Magistrate empowered to take cognizance of the offence. The report has got to give the names of the parties, the nature of the information and the names of the persons acquainted with the cifcumstances of the case. It must also state whether the accused if arrested has been forwarded in custody or has been released 'on his bond. If so with or without sureties. Certain other formalities have also been laid down in the aforesaid section, but I do not think that on the basis of two different reports a challan could be bifurcated.
28. The main grievance of the petitioner is that as there are two reports, hence there should ba two separate trials. The mere fact that number of the accused has been increased and some more witnesses bad been added on the prosecution side would neither entitle the petitioner to separate' trial nor do I think it will cause any embarrassment to the Public Prosecutors to conduct the trial. I am, therefore, of the view that joint trial in this ca else would not in any way result in miscarriage of justice.
9. For the foregoing reasons I am of the view that there is no merit in this petition, which is hereby dismissed. The trial Court is directed to proceed with the case forthwith.