As I propose to remand the case for retrial it is not necessary to set out the facts of this case at any length. Briefly speaking, Muhammad Iqbal deceased was attacked at peshiwela on 30-9-79 on a public path joining Chah Taliwala with Chah Ghulam Hussainwala within the area of village Thatha Rahmonka. He was taken to the Civil Hospital at Pakpattan but he died before any medical assistance could be rendered to him. The incident was reported to the police by Shafi Muhammad, father of the deceased, on the same day at 6-45 p. m. In the F. I. R. Shafi Muhammad claimed himself to be an eye-witness of the occurrence and stated that the deceased was attacked by four persons, namely, Kaley Khan, Muhammad Ali, Iraq and Muhammad SaeeD. The local police investigated the case and came to the conclusion that the four persons named as the assailants in the E. I. R. Were innocent and that the deceased had in fact been attacked by one Hashim alias Hashoo. Accordingly, in the chaltan it placed the names of Kaley Khan, Muhammad Ali, Iraq and Muhammad SaeeD in Column No. 2 and sought the prosecution of Hashim alias Hashoo alone.
2. The learned Additional Sessions Judge presumably did not accept the findings of the police with regard to the innocence of tire persons named in the F. I. R. Consequently, he decided to try jointly all the four persons mentioned in the F. I. R. Together with Hashim alias Hashoo.
3. Before the trial could begin Muhammad SaeeD died:
4. At the joint trial there were two versions. One was given by Sbafi Muhammad (P. W. 7) who stuck to the story he had given in the F. I. R, It was supported by Shah Ali (P. W. 8). The second version was of the police, it was supported by Bahawal (P. W. 9) and Niaz Ahmad (P. W. 11).
5. The learned Additional Sessions Judge partly accepted the version of Shafi Muhammad (P. W. 7) and Shah Ali (P. W. 8) and convicted Kaley Khan and Iraq of an offence under section 302, read with section 34 of the Pakistan Penal Code. He acquitted Muhammad Ali. He rejected the version proffered by the police and accordingly acquitted Hashim alias Hashoo.
6. Kaley Khan and Iraq (hereinafter referred to as the appellants) have preferred this joint appeal against their conviction and sentences.
7. The learned counsel appearing for the appellants has challenged the legality of the joint trial of the appellants with Hashim alias Hashoo.
It is contended that consequent upon the joint trial there were two stories before the trial Court supported by two sets of eye-witnesses with the result that instead of conducting their own defence properly the two sets of accused were more engaged in throwing blame for the death of the deceased on each other. Consequently, the appellants were seriously prejudiced in conducting their defence. In my opinion there is merit in this objection. Trial of the appellants could be held joint with Hashim alias Hashoo only if there was preconcert or collaboration between them. This was not the case of the prosecution at the trial. Consequently the joint trial of the appellants with Hashim alias Hashoo was entirely illegal.
In support of the view which I take I would refer to a Division Bench decision of this Court Ali v.
Crown (P LD 1954 Lab. 183). In this case too there were two sets of accused, one mentioned in the F.
I. R. And the other challaned by the investigating agency. Both sets were tried together. One set was acquitted and the other was convicted. The Division Bench held that in the absence of any collaboration between the two sets of the accused their joint trial was illegal and the whole trial stood vitiated on that account.
8. For the reasons stated above I would set aside the conviction and sentences of the appellants and direct that they be tried afresh.
9. By way of clarification I may mention that neither the State nor the complainant party has challenged the acquittal of Muhammad Ali and Hashim alias Hashoo. I am therefore not interfering with the order of acquittal recorded in respect of them.