Appellants namely Muhammad Ali, Wazeer Hussain and Zahid Ali have filed these three separate appeals against the judgments of learned Special Judge (Customs and Taxation), Karachi passed on 16-5-1984, whereby he has convicted them for offences under section 156(1)(8) of the Customs Act, 1969 and has sentenced each of them to R.I. For three years and a fine of Rs.1,00,000 and in default R.I. For one year more.
2. Briefly stated the relevant facts giving rise to these appeals are that as per prosecution case previously three appellants and their co-accused Iqbal Talib were on flight No. PK-782 coming from London via Dubai and landed at terminal No. 2 of Karachi Airport on 21-1-1984. There was advance information with Customs authorities in respect of gold being smuggled into Pakistan hence strict vigilance was maintained and these four persons were spotted. They had appeared to be confused and their baggage was searched but on their personal search 216 slabs of gold weighing, ten tolas in each slab were recovered from the shoes of these four persons. Slabs of gold were concealed in the soles of shoes. Joint Mashirnama was prepared which is attested by Mashirs Qaiser Abbas and Gohar Rehman's. It is signed by Khawaja Zeeshan Hussain, S.P.O. Customs.
Subsequently F.I.R. Was filed, which is in fact one single F.I.R. Showing all the four persons as accused and recovery of gold slabs from them. In the result all the four persons were arrested and notices under section 171 of the Customs Act were served upon them. In the record there is a joint charge sheet against all the four persons including three appellants and co-accused Iqbal Talib. I do not wish to go into details of contents of the joint charge sheet but would like to state that the prosecution agency had concluded that there was mutual conspiracy and contrivance of the plan according to which an attempt was made to smuggle into country contraband gold by the accused persons.
3. After the above-mentioned three appeals were admitted to regular hearing, bail applications were fixed for hearing and during the hearing of the bail applications it was pointed out by the learned counsel for the applicants that co-accused lqbal Talib was granted bail on medical ground by the trial Court and bail plea of the other three appellants was rejected and they were unsuccessful before the Special Appellate Court also which rejected the bail plea but directed the trial Court to complete proceedings within fifteen days, failing which it would be open to them again to apply for bail before the trial Court first. It was stated by the learned counsel for the applicants that after this order the learned trial Court has split up consolidated cases pending on the basis of joint challan into four different cases and the cases of three appellants whose bail plea was rejected by the Special Appellate Court were finalised and they were convicted and sentenced as stated above while the case of lqbal Talib who was granted bail on medical ground was separated and is still pending and no progress has been made so far in that case and not even a single witness has been examined. After hearing this I sent for the record of the case of co- accused lqbal Talib invoking revisional powers conferred upon this Court by section 185-F of the Customs Act, 1969. Bail applications were not pressed for the reason that date was fixed for regular hearing of appeals.
4. Perusal of record shows that an application was filed on 29-1-1984 by the Advocate of accused Iqbal Talib in which it was stated that Iqbal Talib was suffering from heart ailment and was admitted in Jail hospital and further request was made to the Court to refer him for treatment in National Institute of Cardiovascular Diseases, Karachi. Without any further enquiry prayer was granted and on the same day letter was sent by the trial Court to the Superintendent of Central Prison, Karachi advising that accused Iqbal Talib be referred to National Institute of Cardiovascular Diseases for examination and report. On 1-2-1984 a certificate was issued by National Institute of Cardiovascular Diseases certifying that 1qbal Talib aged 19 years was diagnosed as a case of Rheumatic heart disease with Metial Stenolis. He was admitted for regular check-up and follow up and was advised to avoid tension and fatigue which may cause further deterioration to his disease and may be detriment factor for his life. This certificate is signed by R.M.O.
5. Record further shows that three bail applications were filed before the trial Court one by Zahid Ali, the second by Wazeer Hussain and the third by Iqbal Talib. By order, dated 9-2-1984 the learned trial Judge has rejected bail plea of Zahid Ali and Wazeer Hussain but has granted bail to lqbal Talib on the ground of illness. Bail plea of Muhammad Ali was separately rejected vide order, dated 13-2-1984.
6. Special Appellate Court rejected bail plea of the three appellants vide order, dated 23-2-1984 with direction to the trial Court to complete the case within fifteen days. Copy of this order was sent to the trial Court and seems to have been received on 28-2-1984. This is so stated on the copy of order of Special Appellate Court in the record of the trial Court. As against this case diary relating to the record of special Court relating to 29-2-1984 shows that three accused in custody were present. Accused Iqbal Talib on bail was present. Their counsel were present. I.O. Was directed to submit final report in respect of absconder. There was direction for issuance of summons to all P.Ws. And the case was adjourned to 3-3-1984. On this date an application was moved by the defence counsel under section 233, Cr. P. C. For separation of charges. Notice was issued to State counsel and the hearing was adjourned to 5-3-1984. Such application under section 233, Cr.P.C. Is on the record. This application has been filed on behalf of accused Iqbal Talib. The grounds mentioned therein for separation of trials are as under:-- (1)According to prosecution's own version, there were separate and distinct recoveries from each individual accused.
(2)No accused is liable for the recoveries effected from the other accused. Any consolidated charge or trial would be redundant and misjoinder of charges.
(3)Each individual accused has to rebut his own allegations. The mere fact that the prosecution's witnesses are common, does not and cannot join all the accused in one case.
(4)An amalgamated and consolidated charge will mislead the accused persons in their respective defences.
(5)The quantity of the gold allegedly recovered from the accused persons is different and thus every accused would be responsible to discharge his own burden.
(6)The consolidated trial would amount to refusal of justice and miscarriage thereof.
7. Learned Special Judge has disposed of this application vide order, dated 5-3-1984 which is in the record. It is stated in the order by the learned Special Judge that he has heard Mr. Marwat, Advocate on behalf of accused Iqbal Talib, Mr. K.M. Nadeem, Advocate for the remaining accused and State counsel Mr. Zia Pervaiz. The latter two have also joined Mr. Marwat in his contention that cases should be separated and every accused should be singly charged. Concluding part of the order passed by the learned Special Judge is reproduced as under:-- "It is true that all the accused were arrested on the same night and all of them have brought the gold in their shoes and as such there is proximity of time and also the modus operandi adopted by each accused in the commission of the offence was the same, but then the prosecution is not possessed with any evidence to establish the continuity of actions and the purpose of each accused which might have culminated into the commission of the crimes in question. Differently speaking the prosecution would not be in a position to show that all the accused were in complicity or in collusion with each other to commit the offence. The prosecution would not be able to prove even so much the fact that all the accused belonged to one gang and that they were travelling together.
8. I really do not want to make any comment on the concluding paragraph in the order passed by the learned Special Judge but would like to point out that in the same order the learned Special Judge has given a resume reflecting prosecution case in which it is stated that on 21-1-1984 Customs Officer Khawaja Zeeshan Hussain in pursuance of an information was keeping vigilance upon the passengers arriving from Dubai by Flight No. PK-782 at about 8.35 a. m. Customs Officer intercepted four accused persons. They had together arrived at the airport and their baggage was searched in presence of Mashirs but nothing incriminating was secured. Customs Officer then took personal search of accused persons and such search resulted in recovery of gold slabs. Customs Officer recovered 58 slabs from Iqbal Talib, 52 slabs from Zahid, 52 slabs from Wazeer Hussain and 54 slabs from Muhammad Ali. The gold slabs were cleverly concealed in the shoes worn by accused persons. The shoes were of similar shape and style. The customs officer seized the gold under a Mashirnama and arrested the accused. He also served upon the four accused notices under section 171 of the Customs Act, 1969. He then lodged the report. Investigation was conducted by M.M. Sabir Khan and on completion of the investigation the I.O. Challaned the four accused in the Court to face trial.
9. Narration of the prosecution case made by the learned Judge in the order, itself provides sufficient material for answers to questions raised by him in the concluding paragraph of the order.
It would suffice for me to say that no legal ground has been trade out for separation of trial.
Relevant law on the subject can be found in section 233 read with sections 234, 235, 236 and 239, Cr.P.C. Section 233, Cr.P.C. Relates to joinder of charges and provides that for ever, distinct offence of which any person is accused there shall be a separate charge and every such charge shall be tried separately, except in the case mentioned in sections 234, 235, 236 and 239, Cr.P.C. In this section the emphasis is on the distinct and individual nature of the offence which is different from the other. For example A is accused of a theft on one occasion, and of causing grievous hurt on another, occasion. A must be separately charged and separately tried for the theft and causing grievous hurt. In this context section 234 further provides for offence of the same kind which a person may commit ant: the requirement is that if such a person commits more than one offence: of the same kind within a period of twelve months, he may be charged with them and tried at one trial for such offence, number of which must not exceed three. Section 235 contemplates series of acts sc connected together as to form the same transaction. In such circumstance, if a person commits more than one offence he may be charged and tried at one trial for such offence. Section 236, Cr. P.C. Provide that if a single act or series of acts is of such a nature that it i: doubtful which of several offences, tire facts which can be provided, will constitute the offence, the accused may be charged with having committed all or any of such offences, and any number of such charge may be tried at once; or he may be charged in the alternative with having committed some one of the said offences. The most important and pertinent section is section 239, Cr.P.C. Which enjoins that the following persons may be charged and tried together. Classes contemplated are reproduced as under:-- (a)Persons accused of the same offence committed in the course of the same transaction; (b)persons accused of an offence and persons accused of abetment, or of an attempt to commit such offence; (c)persons accused of more than one offence of the same kind within the meaning of section 234 committed by them joint:, within the period of twelve months; (d)persons accused of different offences committed in the course of the same transaction; (e)
(f)
(g)
10. It appears from the facts in the case and the documents produced that persons in this case are accused of the same offence committed in the course of same transaction. All the four had boarded the plan, from the same place. All the four got down at the same airport. Per prosecution case gold slabs were recovered from each from special, made shoes worn by each and further it appears from the joint challan that prosecution has some material to produce before the Court with regard to conspiracy. In any case prosecution witnesses would be produced in the trial Court and would be examined and they would be cross-examined also and it is for them to convince the Court whether there was conspiracy amongst the accused persons and whether there were links amongst them to show that all of them had joined together to commit the same offence. Sections 233 to 239, Cr.P.C. Relate to one subject i.e. The joinder of charges. In the sections quoted above intention of the legislature is to lay down particular procedure in section 233 word "shall" is used to show that the said provision is mandatory in nature. In section 239, Cr.P.C. Word "may" is used but here it can be said that "may" implies prohibition and can be understood as 'shall'. Craies on statute law (Seventh edition by S.G.G. Edgar) at page 285 has stated that where a power is deposited with a public officer for the purpose of being used for the benefit of persons who are specifically pointed out, and with regard to whom a definition is supplied by the legislature of the conditions upon which they are entitled to call for its exercise, that power ought to be exercised and the Court will require it to be exercised. The enabling words are construed as compulsory whenever the object of the power is to effectuate a legal right. So long ago as the year 1693, it was decided in the case of R. V . Barlow that when a statute authorises the doing a thing for the sake of justice or the public good, the word 'may' means 'shall' and that rule has been acted upon to the present time.
11. Sections 234, 235, 236 and 239 mentioned as exceptions in section 233 are not maturely exclusive but can supplement each other. A charge framed in contravention of the mandatory provisions of sections 233, 234, 235, 236 and 239 is illegal and though no failure of justice may have thereby occasioned is not one which can be condoned under section 537 Cr.P.C. Reference can be made to the case of Keshaylal Tribbuvandaz Panchal v. Emperor AIR 1944 Bom. 306 relevant portion at 312.
12. That upshot of the discussion made above is that requirement of section 239, Cr.P.C. Has equivalent force with section 233, Cr.P.C. And is compulsory in nature particularly when legislature in its wisdom has specifically provided classes of persons who could be charged jointly. Needless to say that persons who have committed same offence are to be tried together. Not following the requirement of section 239, Cr.P.C. Will amount to an illegality which is not covered by section 539, Cr.P.C. Moreover, learned Special Judge has given absolutely no reasons valid and legal for separating the trials of the accused persons who belong to one class and are accused of the same offence. The other unfortunate part of the case is that three appellants whose bail plea was rejected by the trial Court as well as Special Appellate Court faced trial and have been convicted and sentenced while the co-accused Iqbal Talib who was initially granted bail by the trial Court on medical ground is moving about free and his case has not proceeded just for the reason that his case has been separated.
13. In order passed by Special Appellate Court on 23-2-1984 is scrutinised with care it would be obvious that when the bail plea of three accused persons was rejected the intention was to direct the trial Court to complete the case within fifteen days and this certainly applied to all the four accused persons because at that time when order was passed there was no separation of trials. It was one consolidated case of all the four accused persons. It clearly appears from the record that after the receipt of this order steps were taken by the counsel for accused Iqbal Talib for separation of trial, which was apparently done without convincing and cogent reasons. Consent of State counsel or of Mr. K.M. Nadeem, Advocate is of no avail for the reason that it does not help when the act done has no legal cover. Even when proceedings were going on in the trial Court against the appellants, same witnesses were available but no attempt was made to get ahead with the case of accused lqbal Talib. It appears that accused Iqbal Talib has consistently remained absent after he was granted bail and particularly during the proceedings against the appellants. If the Special Judge was anxious to complete the proceedings within the time stipulated in the order passed on 23-2-1984 by the Special Appellate Court, efforts could have been made to complete proceedings in the case of Iqbal Talib also. Just not appearing on medical ground is not enough. Criminal Procedure Code provides several provisions to deal with the situation if accused for any valid reason is unable to attend. Reference can be made to sections 353, 540-A and 205, Cr. P.C.
For the facts and reasons stated above, I am of the view that there was absolutely no justification or warrant for the learned trial Judge to have separated the trial of three appellants and one co- accused, who were apprehended on the same day at the same time and at the same place and for the same offence. The witnesses are same and the, evidence proposed to be produced is also same. There was one F.I.R one joint Mashirnama and one challan. Modus operandi was also same.
No legal grounds have been given by the learned trial Judge for separating the trial. In the result I set aside conviction and sentences of the appellants and I also set aside the order, dated 5-3- 1984. In consequence the case is remanded back to the learned Special Judge for one common trial of all the four accused persons together. He is directed to complete the proceedings in the trial within one month from today. Observations made above, apart from those, which are strictly legal, are tentative in nature and are not to be understood to come in the way of learned trial Judge to try the case and appraise evidence strictly according to law and merits. The record must be sent to the trial Court at once. Appeals are allowed.