The petitioners hive called in question the validity of the order dated 9th January, 1979 of a learned Additional Sessions Judge at Gujranwala whereby he overruled the objection to the holding of their joint trial with another set of accused persons.
2. The facts giving rise to the revision under disposal are as follows:- That on the night between 14/15-10-1972, Hakim Fazal Haq, the deceased in he case, was fatally wounded in Gujranwala city. While in the hospital, the made a statement to the effect that at about 11 p.m., when he along with his were Mst. Khurshid Begum was passing by the Ghantaghar, five persons namely; Muhammad Shafiq, Muhammad Yousaf, Muhammad Saleem alias Billa, Muhammad Fazil and Muhammad Anwar (petitioners) waylaid him, snatched his brief-case containing im--portant documents and also stabbed him in the abdomen. He alleged previous enmity as a motive for the commission of the crime. On the basis of this statement, formal F I R was registered under sections 382, 302; 149 and 148 the Pakistan Penal Code with Police Station City Gujranwala at 1-35 in the night.
3. As a result of the investigation conducted by the local police, on 8January, 1973 a report under section 173, Cr. P. C. Was submitted in Court wherein the petitioners were named as the accused persons. The learned Magistrate took cognizance and issued process against them. However, on a further investigation by the C. I. A. Staff, Lahore, they were found innocent and the case was filed as untraced. Consequently, on the request of the police, the Ilaqa Magistrate, by order-dated 23April, 1973, discharged them. But on the move of Mst. Khurshid Begum, a learned Additional Sessions Judge set aside the order of discharge by his order dated 24th September, 1975 which was upheld by this Court vide order dated 1June, 1976 passed in Criminal Revision No. 876/1975. In theth rd st meantime, on the representation of some other persons, the case was re-investigated and consequently; on 10January, 1974 another report under section 173, Cr. P. C. Was submitted in Court, this time naming another set of four persons, namely; Muhammad Saeed. Muhammad Riaz, Muhammad Asghar and Inayat as the culprits. Inayat having absconded the rest of three were challaned. The time occurrence the motive witnesses nominated therein were quite different from, those given in the first report.
Criminal Law Amendment Act, 1975, having been enforced in the meantime, both the sets of accused were sent up for trial before the learned Additional Sessions Judge who started a joint trial and charged both the sets of accused persons for the same offence. The first set (petitioners) objected to their joint trial with the other hat the learned Additional Sessions Judge over ruled the same by the impugned order.
4. The learned counsel for the petitioners contended that in the circumstances of the case, the joint trial of the two sets of accused persons would be wholly illegal being in contravention of the provisions of sec--tion 239, Cr. P. C, and in any event, such a mode of trial would cause embarassm ent to the accused persons. Reliance is placed on Ali and others v. The Crown (PLD 1954 Lah. 183), Mohammad Mosaddar Haque and others v. The State (PLD 1958 SC (Pak.) 131). Noor Ahmad v The State and Rahim Bakhsh v. The State (PLD 1964 SC 120) and Noor Elahi v. State etc. (PLD 1966 SC 708).
After having heard the learned counsel, I am of the view that the contention raised by him must prevail. In the case of Ali and others, in somewhat similar circumstances, a Division Bench of this Court held:- ---that in order to attract the provisions of this section (section Cr. P. C.). The accused persons must have acted in concert to com--mit 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."
"There is authority for the view taken by the learned Single Judge that a joint trial of the two sets of accused, in circumstances like the present would be in contravention of the provisions ofsection 239 of the Code of Criminal Procedure. Reference may be made, in this connection, to Ali and others v. The Crown and Noor Ahmad v. The State and Rahim Bakhsh v. The State. The correctness of This view also seems to have been assumed by a Amir Ali and others (Crl. Misc. No. 988 of 1945) decided by the High Court on 8th/9th November, 1945). The two sets of accused cannot be said to be persons accused of the same offence, com--mitted in the course of the same transaction within the meaning of clause (a) of section 239 of the Code of Criminal Procedure. Either the one set or the other may have been really guilty of the offence in question and they could not be said to have participated in the same transaction together."
The learned Advocate-General also does not support the impugned order.
5. In view of the above, I accept the petition and set aside the order of the learned Additional Sessions Judge with a direction to proceed with the trial separately and expeditiously.