' Muhammad Ali, a nephew of Chanan Din (deceased), in 'ease F.I.R. No, 19, dated 20-7-1983 registered at the instance of Dost Muhammad under section 302/148/149, P.P.C. At Police Station Lilla, District Jhelum, has filed this revision against the order of Sessions Judge, Jhelum, dated 6-5- 1984 whereby he directed the police to prepare and submit separate challans in respect of two occurrences in which Muhammad Hayat and Chanan Din were murdered.
2. According to the F.I.R. Dost Muhammad, complainant, at 8-30 p.m., on 20-7-1983 was present in his land and Muhammad Hayat, deceased was guarding his melon crop nearby when Hasan Ali, Muhammad Khan, Inayat and Muhammad Aslam (accused/respondents) armed with Kulharis came there from the side of the village who were followed by Nazra son of Muhammad Saee and Nazra son of Bega (accused/ respondents) armed with .12 bore guns and Ghulam Hussain and Mehdi (accused/respondents) armed with hatchets. Muhammad Khan exhorted his companions that they must take revenge of Muhammad Siddiq's murder from Muhammad Hayat, etc. At this Hasan Ali opened attack giving first hatchet blow to Muhammad Hayat which landed on his neck.
Muhammad Khan gave him second hatchet blow on his head and Inayat inflicted third blow with hatchet on his left chin as a result of which Muhammad Hayat fell down. Muhammad Aslam gave blow on his hand and then Muhammad Khan dealt further blows both with right and wrong side of his. Hatchet. During the infliction of injuries to Muhammad Hayat (deceased) Nazra son of Muhammad Saee and his companions stood at some distance and kept raising Lalkara to the effect that they would pick out one by one and kill the members of the party of Muhammad Hayat that day. Muhammad Khan, Muhammad Aslam, Hasan Ali and Inayat then chased Dost Muhammad complainant while Nazra son of Saee, Nazra son of Bega, Ghulam Hussain and Mehdi ran towards southern side where Taja and Mumtaz were ploughing land and Chanan Din (deceased) was grazing goats. Muhammad Hayat died at the spot. Nazra son of Saee and Nazra son of Bega allegedly fired at and killed Chanan Din. The complainant in his report further stated that all the eight accused/respondents in order to avenge the murder of Muhammad Siddiq and in pursuance of their plan had killed Muhammad Hayat and Chanan Din and that the accused/respondents were busy searching for his other partymen but somehow he (the complainant) had stealthily escaped and managed to reach the police station.
3. The police finding after investigation all accused/respondents Nos. 1 to 8 guilty prepared one challan against them which was sent up in due course of time by the Ilaqa Magistrate to the Court of Sessions Judge for trial.
4. On 5-5-1984 the accused/respondents made an application to learned Sessions Judge saying that since Muhammad Hayat and Chanan Din were not murdered in one and the same transaction, therefore, they may be tried separately. The learned District Attorney conceded the proposition but learned counsel for the complainant contested the application. Learned Sessions Judge observed that since there was nothing on the file to indicate that Hasan Ali, Muhammad Khan, Inayat and Muhammad Aslam (accused/respondents) abetted the commission of murder of Chanan Din by Nazra son of Muhammad Saee and Nazra son of Bega and also the report (under section 173, Cr.P.C.) did not indicate that Nazra, etc., went to commit the murder at their instance, therefore, the two murders of Muhammad Hayat and Chanan Din were committed in "two separate transactions", hence all the accused/ respondents could not be tried jointly for these murders. He, therefore, accepting the application of the accused/respondents directed the police to prepare separate challans for each murder and submit the same to Ilaqa Magistrate for being sent up to the Court of Session. Being aggrieved Muhammad Ali, petitioner (not complainant in this case), nephew of Chanan Din (deceased) has filed the instant revision petition.
5. It is admitted before me that the two murders were committed at two different places situate at a distance of one mile from each other and by two different sets of accused.
6. Learned counsel for the petitioner has argued that this case is fully covered by clause (d) of section 239, Cr.P.C., which says that "persons accused of different offences committed in the course of the same transaction" can be charged and tried together. According to him both parties in this case are pitched against each other for many years and there is chain of murders committed in retaliation on either side. He has laid much stress on following sentences occurring in the F.I.R., that is, {{URDU TEXT}} and the other sentence which occurs at the end of the F. I. R. Is,fur {{URDU TEXT}} He further argued that Muhammad Hayat and Chanan Din belonged to one party and all the eight accused/respondents in order to avenge the murder of Muhammad Siddiq had first killed Muhammad Hayat and then Chanan Din, the same day, which indicates that they had common concert and in pursuance thereof they had done them to death. On my enquiry learned counsel for the petitioner stated that Chanan Din, deceased, was not accused of murdering Muhammad Siddiq whose murder the respondents had allegedly come to avenge at the relevant time. He has not been able to point out any material to show that Chanan Din belonged to the party of Muhammad Hayat, deceased. It is apparent from the F.I.R as well as th report under section 173, Cr.P.C., drawn up by the S.H.0., on 31-8-1983 that when Nazra son of Saeedand Nazra son of Bega murdered Chanan Din, none of the remaining accused/respondents at that time were either present, participated or abetted .It, however, as far Muhammad Hayat's murder is concerned, all the eight accusedtrespondents were present.
7. In order to decide the issue whether or not certain accused could be tried jointly the Court looks to the accusation. According to section 265-D, Cr.P.C., a Court before framing a charge examines the police report, the complaint and all other documents and the statements filed by the prosecution. So considering all the material in this case, learned Sessions Judge came to the conclusion that murders of Muhammad Hayat and Chanan Din were committed in two separate transactions by two different sets of accused. The instant case appears to me as fully covered by Noor Din's case (D.B.) PLD 1952 Lah.
185. In that case Mst. Safia and her paramour Deena were murdered on one and the same night.
According to prosecution three accused including one Noor Din had killed Mst. Safia at 9/10 p.m., and then in the later part of the night Noor Din alone killed Deena her paramour. All the three accused at joint trial were convicted and Noor Din was sentenced to death under section 302, P.P.C.
For the murder of Deena and with two others he was convicted under section 304, Part-II, P.P.C. For causing the death of Mat. Safia and sentenced to 10 years' rigorous imprisonment. Question was raised in appeal that joint trial of the said three convicts for the murder of Mst. Safia and Deena was against law. A Division Bench of this Court while accepting the appeal on this ground observed as under:- "It cannot be doubted that the two assaults were actuated by the same motive nor is it unlikely that both of them were planned by all the three appellants but in order to come to the conclusion that the two incidents, which took place at different times, were part of the same transaction, the Court must have before it some evidence, direct or circumstantial, in support of it, but such evidence is lacking in the present case. Moreover it appears to me that the question whether or not a joint trial with respect to two distinct offences, on the ground that they were committed in the course of the same transaction, was allowed by law, is to be decided not on the consideration of the evidence produced in the case but on the accusation made by the prosecution."
' It was further held,-- "Joint trials of different persons are allowed because they are accused of having committed the same or similar offences connected one with the other and if it were permissible to ddd against one of the accused persons charges which have no connection with the charge with respect to which all of them are being tried it is by no means unlikely that the case of those accused persons who are not tried for the additional charges will be prejudiced. Confusion is also likely to result and as an accused person is to be given all reasonable opportunities to defend himself, a mode of trial which is likely to confuse any of the accused persons, must as far as possible be avoided unless the law allows that procedure to be adopted."
8. Taking light from-the above observations made in the precedent. Case, I am of the view that the accusation made by the prosecution against the accused/respondents and the other material available on record does not show that when the eight accused persons came out of the village they had planned to murder Chanan Din as well. They were no doubt together when they committed the murder of Muhammad Hayat. There is nothing to show that the four accused who killed Muhammad Hayat had instigated or abetted Nazra son of Muhammad Saee and Nazra son of Bega to kill Chanan Din by going at a distance of one mile from there. So neither community of purpose nor continuity of action of the accused/respondents qua murder of Chanan Din is inferable from the record and, therefore, I find that learned Sessions Judge was right in holding that Muhammad Hayat and Chanan Din were murdered in "two separate transactions", therefore, the accused cannot be tried together. In the circumstances, this petition has no force and the same is dismissed.