1. The applicant has challenged the order dated 20-11-190(1 passed by the Sessions Judge, Karachi East, dismissing the application of the applicant wherein he had prayed that the two challans one filed against Rahim Bux Jamali under section 302/34, P.P.C. And the other filed against the applicant under section 201, P.P.C. Be amalgamated and the applicant and Rahim Bux Jamali be tried under one charge with charge heads under sections 302 and 201, P.P.C.
2. The facts are that on the basis of F.I.R. No.8/90 under section 302/201/34, P.P.C. Of Police Station Gadap (C.I.A.), Karachi East, lodged against unknown persons for murder of Dr. Fozia Bhutto, the applicant was arrested on 1-2-1990 and his confessional statement was recorded on 10-1-1990. An interim challan was submitted against the applicant alongwith co-accused Rahim Bux Jamali under section 302/34, P.P.C. It was followed by final challan wherein applicant was charged with offence under section 201, P.P.C. And the other accused under section 302, P.P.C. Later on two separate challans were submitted, one against Applicant under section 201, P.P.C. And the other against the other accused under section 302 P.P.C.
3. Mr. M.A. Kazi, the learned Counsel of the applicant has contended that on the face of the accusations both the respective offences allegedly committed by the Applicant and Rahim Bux Jamali are shown to have been committed in the course of the same transaction, they are therefore, to be tried jointly as is required under section 239(d), Cr.P.C. And cannot be tried separately.
4. The learned Counsel for the applicant has further contended that the offence under section 201, P.P.C. Is an offshoot of the offence under section 302, P.P.C. And therefore, unless the applicant succeeds in demolition of the main charge under section 302, P.P.C. Made against the main accused, Rahim Bux Jamali, he cannot defend charge under section 201 P.P.C. He further contended that the offence under section 201, P.P.C. Is a non-cognizable offence and therefore, the applicant has been challaned in violation of the provisions of section 155(2), Cr.P.C. He has placed reliance on the cases of Machia and two others v. The State PLD 1976 SC 695, Zahid Ali and 2 others v. The State 1986 MLD 2477 and M.A. Jalil v. The State PLD 1969 SC 552. The above contention has been raised on the basis of section 239(d), Cr.P.C.
5. Mr. Shoukat Zubedi, learned A.A.-G. Sindh has contended that, neither the two offences can be said to have been committed in the course of the same transaction, nor the offence under section 201, P.P.C. Allegedly committed by the applicant is the offshoot of the offence committed by Rahim Bux Jamali under section 302, P.P.C. He has further submitted that section 233, Cr.P.C. Provides that for every 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 cases mentioned in sections 234, 235, 236 and 239, Cr.P.C. He has contended that the aforesaid four sections are an exception to the general rule embodied in section 233, Cr.P.C. Referring to section 239(d), Cr.P.C., he has reiterated that the two accused have been alleged to have committed different offences. The allegations levelled by the prosecution against the said two persons, clearly reflect that offences alleged against them are independent of each other and in no sense can be said to have been committed in the course of the same transaction. He has relied on the cases of The State v. Rahim Baksh PLD 1964 SC 120 and Chhota Abu v. The State PLD 1960 Dacca 918. The learned Counsel for the Respondent has also pointed out that apart from the confessional statement recorded on 10-2-1990, the applicant had also made a statement on 1-3-1990 before the Magistrate under section 164, Cr.P.C. In his capacity as a witness in the case against Rahim Bux Jamali.
6. "Whatever scope of connotation may be included in the words `the same transaction' it is enough for the present case to say that if several persons conspire to commit offences, and commit overt facts in pursuance of the conspiracy (a circumstance which makes the act of one the act of each and all the conspirators) these acts are committed in the course of the same transaction, which embraces the conspiracy and the acts done under it. The common concert and agreement which constitute the conspiracy, serve to unify the acts done in pursuance of it."
7. Their Lordships, in agreement with the rule laid down in the above Privy Council case by Lord Wright, while explaining the meaning of the words "the same transaction" have observed: "--as to what constitutes the same transaction must be determined on the basis of what appears on the face of the accusation."
8. On the contrary the case of Chhota Abu relied upon by the learned Counsel of the Respondent is applicable to the circumstances of this case. In the said case Chhota Abu was tried for an offence under section 302, P.P.C. Whereas one Mst. Badurunnisa was charged under section 201, for having caused tile evidence of murder committed by Chhota Abu to disappear. However, both of them were tried jointly and convicted. In appeal before the High Court, plea was taken that the trial was vitiated for the reason that offences alleged to have been committed were unconnected with reach other and did not form part of the same transaction. The then Division Bench of Dacca accepted the plea, set aside the conviction and remanded the case for retrial.
9. The learned Sessions Judge in his order has observed that the interim challan was submitted jointly against both the accused persons but even in that challan two distinct offences were separately mentioned against each accused. Rahim Bux Jamail was accused of murder and the present Applicant was charged with suppressing evidence' etc. He is further observed that Rahim Bux Jamali as per interim and final challans had himself and independently committed the murder of Dr. Fozia and thereafter he himself took away the dead body in the self-driven Car and then threw tile dead body in Gadap area. The Applicant was, never shown as accomplice of or in league with the other accused either in the' commission of or removal of the dead body from the place of occurrence to the place where it was found. The Learned Counsel of the Applicant does not dispute the above observations of the trial Court. Under these circumstances, it cannot be said that the two offences were committed in the course of the same transaction. Both the offences being different and independent of each other and therefore, both are to be tried separately against respective accused i.e. Against the Applicant and Rahim Bux Jamali. The contention of the learned counsel that the offence under section 201, P.P.C, is offshoot of offence under section 302, P.P.C, is rather specious. His contention that the Applicant will be prejudiced in his defence if he is tried independently for the charge under section 201, P.P.C. Is without any foundation. On the contrary, as held in the case of Chhota Abu, the trial would be vitiated if both the accused arc tried jointly.
10. Equally, without force is the contention of the learned counsel that unless the applicant has opportunity to demolish the charge under section 302, P.P.C. Levelled against the other accused, the applicant would be prejudiced.
11. Lastly, the learned Advocate contended that the purpose of separate trial of the applicant and, the said Jamali, is to examine Applicant as a witness against his master which is not permissible for the reason that the confessional statement which has been retracted by the Applicant cannot be used under the law against the accused, facing trial under section 302, P.P.C. Such plea, if permissible, is to be raised by the said accused in the proceedings against him and it is no concern of the applicant.
12. The above are the reasons for the short order announced by me on 4-6-1991.