This reference by the Sessions Judge, Derajat Division, D. I. Khan, dated 17-10-1969 arises under the following circumstances.
By his order dated 9-4-1969 Mr. Fida Mohammad Khan, Magistrate 1st Class, D.
1. Khan, committed the respondents to the Court of Session on two counts under section 302/34, P. P. C. for having murdered two persons, namely Mst. Bibi Jana, the wife of respondent Chiragh Shah, and Karim Bakhsh alias Karima. Respondent Chiragh Shah was separately charged for the two murders under section 302, P. P. C. whereas the rest of the respondents were jointly charged with him on both the counts under section 34, P. P. C. The learned Sessions Judge after he went through the evidence on record, noted that according to the prosecution's own case respondent Chiragh Shah had first murdered his wife Mst. Bibi Jana and after about half an hour, when the other respondents who are his father, uncle, and brothers, came to know of that incident they came to the house of Chiragh Shah, sent for deceased Karima to his house and then murdered him. Upon these facts the learned Sessions Judge was of the view that the two murders in question were distinct offences, being separate from each other by about half an hour's time, and consequently the commitment of the respondents who were jointly charged for these offences, was illegal. He therefore recommended that the commitment order be quashed and the enquiry Magistrate be directed to hold separate enquiry in regard to the two murders and thereafter the respondents, be committed separately to the Court of Session.
2. The admitted position is that in this case the F. I. R. of the incident was lodged by respondent Chiragh Shah in which he has taken the entire responsibility for the murders of his wife and Karim Bakhsh alias Karima, her paramour. His version in the F. I. R. is that when he returned to his house from the fields he found his wife Mst. Bibi Jana and late Karim Bakhsh locked together in each other's arms, and consequently he killed them under grave provocation. However, the investigating agency came to a different conclusion in regard to the said occurrence, as according to the challan submitted by it to the Court respondent Chiragh Shah had first murdered his wife and after about half an hour, when the other respondents came to know of this incident they called Karim Bakhsh alias Karima to the house of Chiragh Shah, and then put him to death. In these circumstances the question arises if the respondents could be jointly charged for all these offences, and further if the commitment order can be said to be illegal, as admittedly they were jointly charged for the various offences by the committing Magistrate.
The principle of law is well established that all offences committed within the course of same transaction can be made the subject-matter of a joint charge, provided it is shown that the accused had the community of purpose or design and continuity of action (See Arab Khan v. The State . To the same effect is the case of the Supreme Court of Pakistan reported as Mosaddar Hoque and another v. State in which the facts were almost analogous. In that case a person presented a document before the Sub-Registrar for registration and paid him Rs, 15 by way of bribe in pursuance of the antecedent demand by that officer. However, when the document was presented to the Muharrir of the office of the Sub-Registrar, he demanded Re. 1 more by way of bribe failing which he refused to complete the attendant formalities. The owner of the document had obviously no choice and he paid this amount to the Muharrar. But later when the Sub-Registrar and the Muharrar both were challaned in Court they were jointly charged for these offences and accordingly convicted. It was upon these facts that their conviction was set aside by the Supreme Court of Pakistan on the ground that the two offences committed by them were wholly distinct; having no community of purpose or continuity of action.
3. By applying the principles of this case, in which the facts were almost analogous, it is clear that in the instant case respondent Chiragh Shah alone was accused to have murdered his wife, whereas after an interval of about half an hour, he, in conspiracy with the rest of the respondents, is alleged to have persuaded late Karim Bakhsh, the alleged paramour of his wife, to come to his house who was then put to death by all of them. It is, therefore, clear that the case is fully covered by the above dictum of the Supreme Court of Pakistan and consequently the learned enquiry Magistrate was in error to have jointly charged the respondents for both murders.
4. Having come to this conclusion, the question arises if the commitment order should be quashed, as it has been found to be illegal. The learned Assistant Advocate-General was of the opinion that the commitment order itself is not liable to be quashed, as no prejudice has been caused to the respondents; considering that their trial has yet to take place and all that has been done by the enquiry Magistrate is to commit them to the Court of Session. He, therefore, urged that while not interfering with the commitment order, the learned Sessions Judge should be directed to proceed against the respondents as if respondent Chiragh Shah had been separately committed to his Court for the murder of his wife while he and the rest of the respondents were jointly committed in regard to the murder of Karim Bakhsh. To support his contention, the learned counsel brought to my notice a Division Bench judgment of the Madras High Court in the case of Govindu and another .
5. I have gone through this judgment with the aid of the learned Assistant Advocate-General and found that it supports his contention. In that case also the accused were jointly charged and committed to the Court of Session, and the learned Sessions Judge made a reference to the High Court for quashment of the proceedings on the ground that while one of the accused should have been separately charged for a distinct offence, his case had been wrongly linked with the other accused, and consequently it had caused prejudice to every one. The High Court agreed with the opinion of the learned Sessions Judge in regard to the facts of the case, but declined to quash the1 2 3 commitment order; directing that instead he should now proceed against the accused as if there had been two commitment orders against them.
6. This enunciation of law is reinforced in Pakistan by the amendment of section 537, Cr. P. C. The amendment in question was introduced by section 23 of Act XVII of 1964 (Code of Criminal Procedure (West Pakistan Amendment) Act, 1964, which in relevant part reads that "no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered on account of any error, omission or irregularity in the charge or mode of trial, including any misjoinder of charges." In other words, even if there was any grievance in regard to the misjoinder of charges by the respondents, the same, in view of this amendment, would have no substance; particularly when they do not seem to have been prejudiced. Karimullah Khan Durrani, the learned counsel for respondents in support of this view, brought to my notice a judgment of the Lahore High Court in the case of Khan Muhammad v. Said and others in which it was held that the question of misjoinder of charges is no more an illegality of which notice can be taken.
7. The result of this discussion is that no interference is called for with the commitment order of the learned Magistrate. Accordingly the case would go back to the learned Sessions Judge who would proceed against the respondents as if the learned Magistrate had committed them by two separate commitment orders; one in regard to Chiragh Shah for the murder of his wife Mt. Bibi Jana, and the other in respect of Chiragh Shah and the other respondents for the murder of Karim Bakhsh alias Karima. With these observations, this reference is disposed of. 1970 SCMR 718 P L R 8 Dacca 607 I L R 26 Mad. 592 PLD 1969 Lah. 537