'HASSAN RAZA PASHA, J.---The instant revision petition has been directed against the order dated 13-5-2009 passed by learned Additional Sessions Judge, Jhelum whereby the application of petitioners under section 265-K, Cr.P.C. Was disallowed.
2. Briefly, stated the facts of the case are that on 2-7-2008, one week prior to the occurrence Shuakat Ali s/o Niaz Ali asked Aadil son of Sharif to get photographs of daughters of Muhammad Akram. Said Aadil told this fact to Muhammad Akram upon which ladies of Shaukat Ali and Muhammad Akram abused each other. At 7-00 p.m. When Mst. Sakina was taking water from hand pump, Shaukat Ali armed with Rifle, Niaz Ali armed with Danda and Muhammad Saleem armed with hatchet came there. Shaukat Ali fired a shot, which hit on the abdomen of Mst. Sakina Bibi who fell down. According to complainant he managed a vehicle to remove Mst. Sakina Bibi to the hospital. On coming to know about the incident, Muhammad Ashraf and Khalid Mehmood also came there on Motorcyle. When they were going to Domeli Hospital, Riasat, Liaqat Shahid Adalat and Aashiq Hussain armed with iron rod and Dandas came there and gave beating to Muhammad Ashraf and Khalid Mehmood. The complainant stopped the vehicle and raised hue and cry, which attracted many persons at the spot. According to complainant Shaukat etc. With their common intention injured Mst. Sakina Bibi, Muhammad Ashraf and Khalid Mehmood.
3. After legal formalities, the Investigating Officer submitted Challan against the accused. The learned Additional Sessions Judge framed the charge on different accounts against the accused.
After recording the statements of nine witnesses the petitioners have moved the instant application for their acquittal and in alternate claimed there separate trial under sections 337-A(i), 337-A(ii), 337-F(i), 337-F(ii), 337-F(v), 148/149, P.P.C. The learned Additional Sessions Judge, Jhelum vide order dated 13-5-2009 dismissed the application hence, this writ petition.
4. Learned counsel for the petitioners contended that the accused of two different alleged occurrences having two different sets can neither be challaned together nor they can be tried together; that the accused Shaukat Ali, Niaz Ali and Muhammad Saleem have been charged for committing murder of Mst. Sakina Bibi whereas the remaining accused have no nexus with the first episode of the occurrence; that it is evident from the contents of F.I.R. That Riasat, Liaqat, Shahid, Adalat Khan and Aashiq Hussain injured Muhammad Ashraf and Khalid Mehmood in the second episode; that the venues of both the incidents are totally different and there is a distance of about five furlongs in between venues of both the occurrences; that section 239, Cr.P.C. did not apply to the acts alleged against the petitioners as they neither constituted the same offence nor the same were committed in the course of same transaction; that joint trial is only permissible if the offences are of the same kind as prescribed in section 234(2), Cr.P.C. According to learned counsel each of the acts constitutes a separate transaction by itself and the petitioners should have been tried separately; and that joint trial of the accused of both the occurrences; is illegal, as such right of the accused of second occurrence regarding first appeal before Sessions Court has been infringed. In support of his contentions learned counsel for the petitioners has relied upon 2003 SCMR 799, PLD 1958 Supreme Court (Pak.) 131, 1977 PCr.LJ 145, 1954 Lahore 183 and 1973 SCMR 542.
5. Learned counsel for the complainant as well as Khawaja Sohail Iqbal, learned D.P.G. Have opposed the arguments of learned counsel for the petitioners and submitted that order of trial Court is based on sound and cogent reasons, which warrants no interference by this Court.
Learned counsel further contends that no illegality was committed by trial Court by passing the impugned order, therefore, the same may be allowed to stand. Under Clause (d) of section 239, Cr.P.C, the persons accused of different offences committed in the course of same transaction can be charged and tried together. According to learned counsel in the instant case learned trial Court framed a joint charge with a description of different heads where the each and. Every aspect of the occurrence was expressed; that both the episodes are of the same kind and series of same transaction. In this behalf learned counsel referred the later part of F.I.R. In which the complainant narrated the fact of both the episodes in one sentence showing the common object of all the accused persons. According to learned counsel the petitioners should have firstly challenged the validity of joint investigation of both the occurrences before, the police, if not then they have an opportunity at the time of submission of challan before learned Illaqa Magistrate and thereafter before the learned trial Court but the petitioners even did not bother to challenge the factums of a joint trial at the time of framing of charge by the trial Court. In support of his contentions learned counsel for the complainant has relied upon PLD 1962 (W.P) Lahore 244, PLD 1962 Dacca 424, 1997 PCr.LJ 1900, 2003 PCr.LJ 1175, PLD 2004 Karachi 508, 2006 PCr.LJ 1424 and 1993 PCr.LJ 678.
6. Arguments heard. Record perused.
7. Admittedly, the second episode took place at the time of removal of Mst. Sakina Bibi (deceased) in injured condition at a distance of about five furlongs from the place of first episode of the occurrence. In the second episode Muhammad Ashraf and Khalid Mehmood were injured by the petitioners. The complainant had witnessed B both the episodes. Admittedly the accused of second episode are real brothers of Shaukat Ali and sons of Niaz Ali, who are the accused of first episode. Similarly Muhammad Saleem accused of first occurrence is real nephew of accused of second occurrence. In order to show the continuity of action and continuity of purpose and design, the later part of the F.I.R. Is reproduced as under:- {{URDU TEXT}} 'Both the learned counsel for the parties referred second 239, Cr.P.C. Sub-clause (d) is very much relevant in the instant case, which is reproduced as under:-- "Persons accused of different offences committed in the occurrence of same transaction."
Section 239(d) provides for a joint trial of two or more persons for different offences forms an exception to the primary rule enacted in section 233. The object of the exceptions noted in section 233, Cr.P.C. And embodied amongst that in section 239(d) is to avoid duplication of proceedings. In my humble view learned counsel for the petitioners must have some force in his arguments regarding two different occurrences and different trial or different Courts of competent jurisdiction but the factum of set of both the accused persons is very much relevant in the instant case. Both the sets of accused are having related inter se with each other and possibility of their common intention cannot be ruled out. I am, therefore, of the opinion that both the occurrences were committed in the course of same transaction. Reliance is placed on the case titled "The State v.
Darajuddin Mondal and others" reported in PLD 1962 Dacca 424 in which it has been held as under:- - "(a) Criminal Procedure Code (V of 1898), Ss.235 & 239(d) "Same transaction"-Series of interlinked incidents-Proximity of time and unity of place-Community of purpose and continuity of action- several persons animated by common purpose committing different offences-Various acts done in pursuance of such purpose-Constitute same transaction even though some acts were merely accessory-Joint trial not illegal.
'Acts, not isolated and independent of one another, but forming a series of interlinked incidents connected together not only the proximity of time and unity of place but also by community of purpose and continuity of action, form one and the same transaction."
8. From the perusal of F.I.R. It reveals that acts of both the sets of the accused are not isolated. Acts independent of one another but forms a series of interlinked incidents connects together not only by proximity of time and unity of place but also by a community of purpose and community of action so as to form one and the same transaction. The action should be interconnected not in any special or technical way but in its ordinary meaning of "affair" or "carrying through". To my mind bare reading of F.I.R. Seems acts, continuity of action by the accused persons with their common intention. I hold that the different offences ascribed therein to the accused concerned were committed in the series of same transaction so as to warrant their joint trial within the meaning of section 239(d) of the Code of Criminal D Procedure. The contention of learned counsel for the petitioners that the joint trial is hit by mis-joinder of charges and persons in contravention of sections 233 and 239 is therefore, rejected as having no force or substance.
9. Perusal of the record shows that the petitioners are being charged under section 148, under section 337-A(ii) read with section 149, under section 337-A(i) read with sections 149, 337-F(i) read with section 149 under section 337-F(v) read with section 149 and under section 337-F(ii) read with section 149, P.P.C. And not under section 302 read with section 34, P.P.C. After recording of evidence if the Court considers that there is no possibility of accused being convicted of any offence, they may be acquitted of the offences. The record shows that the prosecution has produced nine witnesses in support of the case and prima facie, perusal of the same does connect the petitioners with the offence enumerated in the Court under section 173, Cr.P.C. Therefore, under these circum- stances the trial Court has not acted against the law and thus has rightly rejected the same.
10. The upshot of above discussion would be that the instant revision petition having no force is dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.