' SYED SHABBAR RAZA RIZVI, J.--- The petitioner has filed this writ petition to contend that in view of provisions of section 233, Cr.P.C., two separate offences committed by two different persons cannot be charged/tried together.
2. The brief facts leading to the filing of the instant writ petition are hat respondent No,3 filed two separate complaints against two separate persons. First application/complaint was filed on 7-8- 2000 against one Maqsood Arshad that he cheated the respondent No,3 and deprived him of Rs,1,44,611. Another complaint was lodged against the petitioner on 19-6-2001 alleging that petitioner also cheated and deprived him of amount of Rs,15,510. On 22-5-2001, D.S.P. Legal gave his opinion that, prima facie, provision& of section 420, P.P.C. Were attracted in the above two separate complaints, which opinion is available on the file as Annexure "C". However, only one F.I.R. No,83 of 2000 dated 19-6-2001, under section 420 was registered at Police Station Sarwar Road, Lahore, instead of two F.I.Rs, The F.I.R. Is available on record as Annexure "D". Briefly, the F.I.R. Reads as under:--- "Complainant has his business office at 15/1 Linkers Colony, Saint John Park. In 1997, he imported plastic from Germany in 9 containers. For custom clearanCe, he contacted Maqsood Arshad resident of 64-N, Samanabad and paid him Rs,10,89,120. Said Maqsood Arshad spent Rs,9,29,509 but misappropriated Rs,1,44,611. In the- same F.I.R., it is further written that on 30-9-1999 one Mughees Bhatti (petitioner) resident of Batala Colony, Faisalabad came to office of the complainant and promised to provide 600 meter cloth to the complainant. On his demand, complainant sent. 7,500 pounds thread through Faisalabad to the above mentioned Mughees Bhatti and also sent a cheque of Rs,100,000 which was encashed by him. Said Mughees Bhatti failed to honour his part of the agreement whereupon on 28-10-1999, he again promised to supply the cloth and also paid through a cheque Rs,22,660. However, he failed to supply the promised cloth completely and still owe Rs,15,510 to the complainant which he misappropriated."
The contents of the F.I.R. (Annexure "D") clearly show that two separate accused persons committed separately cognizable offences yet only one F.I.R. Was registered by the S.H.O. After investigation, A final report under section 173, Cr.P.C. Was submitted. The learned trial Court also took the cognizance in disregard of provisions of section 233, Cr . P. C .
3. The petitioner filed an application under section 249-A, Cr.P.C. Which was dismissed by the learned trial Court on 12-9-2007. The revision against the said order was also dismissed by the learned Additional Sessions Judge, Lahore vide his order dated 13-1-2001.
4. I have heard the learned counsel for the petitioner as well as the learned counsel for respondent No,3, the learned Assistant Advocate-General and the learned Deputy Prosecutor-General..
5. Section 233, Cr.P.C. For convenience is reproduced as under:--- "Separate charges for distinct offence.--- For every distinct offence of which any person is accused there 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."
' Reading of the above section clearly conveys that if there are more than one offence and they are distinct from each other, there shall be a separate charge. It also reveals that any person accused of a distinct offence shall be charged separately. Exceptions to the above legal position are mentioned in sections 234, 235, 236 and 239. The details of facts narrated in the preceding paras.
Clearly show that petitioner and another person Maqsood Arshad cheated respondent No,3 separately; According to report of D.S.P. Legal, both persons committed offences under section 420, P.P.C., separately, yet offences committed by both accused persons were merged into one F.I.R. The learned trial Court also framed charges against both accused persons together. The record shows that the learned revisional Court was pointed out above violation of section 233, Cr.P.C. But the learned revisional Court did not record any reason for rejecting the plea instead the revision was dismissed on the ground that the trial had already commenced and even three P.Ws were examined. The learned revisional Court further observed that after lapse of many years application under section 249-A, Cr.P.C. Could not be moved. It seems that the learned revisional Court avoided to take decision or even to discuss the legal proposition raised by the learned counsel for the petitioner in view of lapse of many years. It also seems that the point raised by the learned counsel for the petitioner regarding disregard of provision of section 233 was not raised earlier at the stage of investigation or at the time of framing of charge, etc. However, I have no doubt in my mind that mandatory provisions of section 233 have been violated and disregarded both by police authorities and by the learned trial Court at the time of framing of charge as well as at the time of subsequent proceedings.
6. As pointed out above exception to the legal position of section 233, Cr.P.C. Are provided in the subsequent sections of the Code. According to section 234, Cr.P.C., three offences of same kind may be charged together when a person is accused within the space of twelve months from the first to the, last of such offences. However, this section is not applicable in the facts and circumstances of the instant case as two persons are accused in the instant case i,e, petitioner and Maqsood Arshad. Under section 235, Cr.P.C., if in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence. It may be noted that offences mentioned in instant F.I.R.,No,83 of 2001 is not one series of acts and they were not committed by the same person instead by two different persons, therefore, section 235, Cr.P.C. Is also not attracted in the instant case. Section 236 is attracted where it is doubtful what offence has been committed. In the instant case/F.I.R., offences are distinct and specifically attributed to two different accused persons. The list where several persons may be charged and tried together given under section 239 also does not include cheating or offence under section 420, Cr.P.C. Subject matter of the instant writ petition.
7. The language of section 233, Cr.P.C., leaves no doubt in my mind that it is of a mandatory nature as word "shall" is used therein. 1986 M LD 2477. The above discussion also leaves no doubt in my mind that the present case is of misjoinder of charges. Thus, in view of D mandatory provisions of section 233, Cr.P.C. Misjoinder of charges is an illegality vitiating the entire proceedings and it is not curable under section 537, Cr.P.C. In similar facts and circumstances, this Court held a trial as unlawful. Brief facts of the precedent case are that different persons committed apparently same offence but at different places and time. The Court held that illegality was incurable under section 537, Cr.P.C. For further guidance, reference may be made to Sh. Muhammad Aslam v. State and others 1991 M LD 1973. In this regard, I also observe that the learned counsel for the petitioner has aptly referred to erstwhile Dacca High Court reported in PLD 1960 Dacca 551, wherein it was held:--- "A misjoinder of charges is an illegality vitiating the entire E proceedings. A writ for certiorari will issue only in cases of want of jurisdiction or excess of jurisdiction and also in cases of illegality not curable under section 537 of the Criminal Procedure Code. Such illegality, however, must not entail any enquiry into the facts in the case but must be patent on the face F of the record. If an enquiry is necessitated to question the illegality in the case, in that event it cannot be said that the illegality is patent on the face of the record." PLD 1960 Dacca 551.
Then, I hold that from the simple perusal of the record and reading of section 233, Cr.P.C. That the illegality pointed out by the petitioner is patent on the face of the record, thus, not curable under section 537, Cr.P.C. The learned counsel for respondent referred to PLD 1985 Lah.
173. Even in the said judgment, the proposition was not disputed as the learned Judge concluded, "If the Court finds that joint trial of offence/accused offends the provisions of Criminal Procedure Code then the Court can itself split them up into different cases". This order also does not show whether earlier judgments PLD 1960 Dacca 551, etc. Were considered or not. Anyhow, I have already referred to 1991 M LD 1973 which is also a judgment of this Court. Therefore, referring to the later judgments of this Court, 1986 M LD 2477 and 1991 M LD 1973, I am of the view that proceedings before the learned trial Court are continuously suffering from illegality not curable under section 537, Cr.P.C. Resultantly, a writ for certiorari can be issued.
8. As a result of above discussion, the present proceedings before the learned trial Court are set aside and declared unlawful. The In-charge of the Prosecution in the District is directed to submit fresh final reports/Challans under section 173, Cr.P.C. Separately, against both the accused persons to be charged separately by the competent trial Court/Courts. This writ petition is allowed in the above terms.