This case has been referred to the High Court by, the Sessions Judge, Jhelum, tinder section 435/438, vide his order dated 23-[2-1963; recommending that the conviction of Bagh Hussain, Muhammad Hussain, Muhammad Sharif, Nazar Hussain and Rab Nawaz petitioners before him recorded by Raja Khizar Hayat, Magistrate Second Glass, Chakwal, under section 34'2/147; P. P. C.
Upheld in appeal by the learned S.D.M:, Chak was inhis, order dated 28-2-1963, be quashed.
2. The short background of the case is that ,the above-; mentioned five persons were convicted by, Raja Khizar Hayat, Magistrate Second Class, vide his order dated 21-11- 1962for, offences (i) under section 447;P.P.C. With an 'Award of one month's R. I. Each; (ii) under -section 342, P..P-C with an award of 'four months' R. I.-each and (iii) under section 147, P. P.C. With , an award of one month 's R.I. With a direction for the concurrent running of the sentences. In appeal, the learned S. D. M., Chakwal took a view that the two occurrences being different in point of time and the nature of allega-- tions and the accused involved, there should have been two separate trials. Yet strangely enough he set aside only the conviction under section 447, P. P. C. Maintaining the one under section 342/147, P. P. C. Of course with a reduction of sentence of four months' R. I., to that of three months R. I.
3. Feeling aggrieved the petitioners filed a revision peti--tion before the Sessions Judge, Jhelum who has referred the casa to this Court for quashment of proceedings.
4. From the narration of facts contained in the order of reference, it appears that the two offences not having bee so connected as to form the same transaction should have been separately tried and a joint trial held in this regard was obviously illegal being in violation of the provisions contained in the Criminal Procedure Code. Sections 235 and 239 (d), Cr. P. C. Permit a joint trial of offences forming the same transaction if committed in the course of the same transaction. Once the Court comes to the conclusion that the case was not covered by the aforesaid two provisions permitting a joint trial there will be no escape from the position that the entire proceedings would be - vitiated and as such the appellate order of the learned S. D. M. Upholding the convic--tion of the petitioner under section 342/[47, P. P. C. Shall have to be quashed.
5. The expression "same ransaction" has not been defined anywhere in the Criminal Procedure Code. However, from the large number of illustrations added after section 235 it should not be difficult to appreciate the precise connota--tion of the expression. In Emperor v. Sharufalli (1), it was observed that "the real and substantial test for determining whether several offences are connected together so as to form one transaction depends upon whether they are so related to one another in point of purpose, or as cause and effect or as principal and subsidiary acts as to constitute one continuous action."
In Palakl Dadapani Patro v. Emperor (2), proximity of time was not considered as essential for continuity of action and purpose. In the instant case, no doubt we find some proximity of time acid the alleged community of motive on the part of the petitioners to catch hold of Ghulam Hussain on suspicion of having abducted the' daughter of Bagh Hussain petitioner, but barring this there is no further connection between the two occurrences. The illustrations added to section 235, Cr. P. C.
Referred to earlier offer a useful guide line in this regard. Having considered the facts of the case in the light of the
(1) 1 L R 4 Rom. 1930(2) AIR 1945 Pat. 293 illustrations, I am inclined to agree with the learned Session Judge, that the two offences cannot be deemed to have bee so connected as to form one and the same transaction o C to have been committed in the course of the same transaction. Obviously, therefore, the offences had to be tried separately.
6. The next question that arises for consideration is) whether the defect was curable under section 537, Cr. P. C I. As it stood unamended at the relevant time. The answer is! Clearly in the negative. No doubt the irregularity in the mod of the trial if found not to have resulted in prejudice to a accused, would be curable under section 537 as amended b Code of Criminal Procedure (West Pakistan Amendment) Act, 1964, but since the instant case relates to the pre-amendment period, the defect shall have to de deemed as incurable and being vitiative of the proceedings. Muhammad Warris v.
The State (1) may be cited as an authority in point.
7. In consequence, I accept the reference made by the learned Sessions Judge and set aside the convictions an sentence of the petitioners recorded under section 342/147; P. P. C. As in view of the time-lag of 51 years, it would not be fair to order retrial.