This is a revision petition filed by Sarfraz and eight others, petitioners, for the setting aside of the order of an Additional Sessions Judge of Faisalabad, dated 2-2-1985, rejecting their application for conducting a joint trial of two separate challan cases lodged before him.
2. A case was registered against the petitioners at Police Station Bahlak, District Faisalabad, under section 302/34, P.P.C. Vide F.I.R. No. 147, dated 22-6-1983 on the statement of one Ahmad son of Waryam, caste Wattoo, resident of Thatta Nourang. According to the contents of the complaint, the complainant stated that day at about 3-00 a.m., he had come to the fields alongwith his brother Bakhsha for irrigation and at about dawn time, he was going on the Khal alongwith his brother Bakhsha. When they reached near the cattle shed of Jan caste Wattoo, Sakandar son of Wasya, Zohra son of Sakander, Chawa son of Bahlak and Sarfraz son of Bahlak caste Wattob resident of Thatta Nourang, all armed with .12 bore guns, came out of the Sirkandas making Lalkaras. His brother tried to take protection alongside the Khal, but Sarfraz fired a gunshot, which hit Bakhsha on the left side of the head. Then Zohra fired a gunshot which hit Bakhsha on the left shoulder and Chawa fired a gunshot which hit Bakhsha on the thigh. Upon these injuries, Bakhsha fell down, when all the accused, while firing, reached near his body and in this fallen position Sakandar fired a gunshot which hit Bakhsha on the left eye. On hearing the gunshots, the P.Ws. Mentioned in the complaint were attracted to the spot, when the accused went back to their houses alongwith their weapons and Bakhsha expired at the spot. The motive for the occurrence was that 25/26 years back, Bahlak, father of Chawa and Sarfraz, accuse, and Mohabat, brother of Sakander, accused, were murdered by their fathers and others. On 16-6-1983 Sujjawal and Ghulam Farid, sons of Pira, Dosa and Chawa, sons of Bahlak, were instigating Sakander accused in the Katchi masjid near busstand to put an end to Bakhsha, to take the revenge for the previous enmity, and they were overheard by Shahmand son of Mohabat and Mir son of Najabat residents of the village, who had come to the said mosque for offering prayer.
3. After investigation, the police placed Sujawal, Ghulam Farid and Dosa in column No. 2 of the challan, whereas Sarfraz, Chawa, Sakander and Zohra were placed in column No. 3 of the challan, which was submitted under the provisions of section 302/34, P.P.C.
4. Another case was registered by P.S, Bahlak vide F.I.R. No. 156, dated 26-6-1983 under section 302/34, P.P.C. On the statement of Fazal son of Bagha, caste Wattoo, resident of Thatta Nourang, and according to the contents of the F.I.R., the complainant stated that on 22-6-1983 at about dawn time when he was present in his house alongwith his sister Mst. Gullan and brother Hussain, they heard the fire shots, whereupon- they came out. In the meantime, Sarfraz and Chawa, sons of Bahlak, came from the western side, armed with guns. On coming there, Chawa challenged his brother Hussain and he saw that upon this challenge, Qutba and Palla, sons of Rajab, who were hiding in the nearby Jawar crops field, both armed with guns, came out and all the four accused fired one gunshot each on his brother Hussain, which hit him on the left arm and belly, whereupon his brother fell down at the spot and all the four accused while firing went towards their houses. He removed his brother Hussain to Civil Hospital, Pindi Mosa, where he was medically examined. In the meantime, some persons had been trying for effecting compromise, so he did not report the matter with the police. Last night, the position of Hussain injured deteriorated, whereupon he removed him to Civil Hospital, Faisablabad and has now come to lodge the report. The motive for the occurrence was that the father of Chawa and Sarfraz, accused, and their uncle Mohabat were murdered about 25/26 years back by his brother Hussain alongwith others, but were acquitted. This case was originally registered under section. 307/34, P.P.C., but afterwards Hussain died in the hospital and the charge under section 302, P.P.C. Was added and after investigation Police submitted the challan in. The Court under section 302/34, P.P.C. By placing Qutba and Palla in column No. 2 of the challan and Chawa and Sarfraz in column No. 3 of the challan.
5. Both these cases were entrusted to an Additional Sessions, Judge for disposal and all the, seven accused, including those placed in column No. 2, of the first callan case were summoned by that Judge and copies, according to the provisions of section 265-C, Cr.P.C., were provided to them on 14-11-1984 and the case was fixed for trial for 2-2-1985. In the meantime, the accused in the other case registered vide F.I.R. No. 156-83 were summoned and copies were given to them on 26-11-1984 and that case was also fixed for trial for 2-2-1985.
6. On 2-2-1985 the learned defence counsel filed an application before the learned Sessions Judge that the Court should frame charges respect of both the cases in one case, because the offences which were committed by the nine petitioners were so connected together as to form the same transaction. After hearing the arguments on the said application, the learned Additional Sessions Judge rejected the same.
7. Being aggrieved by the above order, the petitioners have now filed the present revision petition, which is now before me for disposal.
8. I have heard the arguments of the learned counsel for the petitioner and the State It is true that both the murders of Bakhsha, deceased, and Hussain, deceased appear to have been committed .Out of a common motive, but it cannot be denied that the accused, the complainant and the witnesses in the two cases are totally different. There is some distance in proximity of time between the commission of the two murders. Further, there is nothing in the F.LR. Of the .First challan case (arising out of F.I.R. No. 147 of 1983) to show that Sakander, Zohra, Sajawal, Ghulam Farid and Dosa, petitioners, were aware of the second murder to be committed by their companions Sarfraz and Chawa, petitioners, or that they had instigated the said two persons to commit the murder of Hussain, deceased. Likewise, there is nothing A in the F.I.R. Of the second challan case (arising out of F.I.R. No. 156 of 1983) to show that Qutba and Palls, petitioners, had any knowledge of the first murder of Bakhsha, deceased, or had instigated that other seven petitioners to commit that murder. There is continuity of purpose relating to the second murder, where two of the accused are concerned, but the two murders do not appear to have been committed as a part of the same transaction. It cannot, therefore, be stated that the offences in the two cases arose out of a series of facts which were so connected together as to form parts of the same transaction within the meaning of section 235. Cr.P.C. But even if it were to be so admitted, for the sake of argument, that the two incidents arose out of a series of facts which were connected together as to form the same transaction, I would in the particular circumstances of this case, sustain the finding of the[ learned Additional Sessions Judge. This is necessary in the instant case as the accused, the complainant and the witnesses in the two cases are totally different and any attempt to consolidate the cases would prejudice a fair trial where the parties are concerned, if not create serious confusion for the Court when attempting to appraise the evidence. Even for offences arising out of the same transaction, which can be tried together in one trial, the Court can sometimes, in the interest of justice, order separate trials, if it considers that prejudice would be caused to either of the parties or embarrassm ent to itself in recording and appraising the evidence. Even assuming that the offences are jointly triable, I would, acting on this principle; in this case sustain the impugned order.
9. For the foregoing reasons, there being no merit in this petition, the same is dismissed.