' The petitioners have challenged the revisional order of the learned Sessions Judge, Kasur dated 22-7-1990 whereby he affirmed the order of the Ilaqa Magistrate, Kasur dated 18-10-1989.
2. The brief facts relevant for the disposal of this petition are that on the application dated 24-8- 1987 submitted by Ch. Fazal. Hussain and others, a case vide F.I.R. No,481, was registered against the petitioners and others at Police Station B-Division, Kasur.
' According to the F.I.R. The petitioners despite belonging to Qadiani faith have posed themselves as Muslims by praying like Muslims, calling Azan, and hanging Quaranic verses and Kalma Tayyaba at their shops, so they have committed the offence under section 298-C, P.P.C.
' The learned Ilaqa Magistrate framed a charge against all the petitioners under section 298-C and by invoking the provisions of section 239, Cr.P.C. Directed that all the petitioners be tried jointly for the said offence on 22-6-1988.
' The petitioners moved an application on 22-11-1988 before the learned Magistrate, that in the present case, joint trial of the petitioners, is illegal and in violation of section 239, Cr.P.C. Hence they should be separately charged and tried for the offence in accordance with the provisions of section 233, Cr.P.C. This petition was dismissed by the learned Magistrate, Kasur vide his order dated 18-10-1989.
' Against that order the petitioners filed a revision petition under section 439-A, Cr.P.C., which was dismissed by the learned Sessions Judge, Kasur vide his order dated 22-7-1990.
3. The learned counsel for the petitioners has vehemently contended that section 233; Cr.P.C.
Envisages that for every distinct offence, there shall be a separate charge, and all the accused shall be tried separately except in cases mentioned in sections 234, 235, 236 and 239, Cr.P.C. He urged that as section 239 ibid is exception to section 233, Cr.P.C. Hence it has to be construed very strictly. According to the learned counsel for the petitioners the offence, if any was committed by different persons at different places and time, hence their joint trial under section 239, Cr.P.C. Is not permissible in law, as this offence was not committed by them in the same transaction. He placed reliance on PLD 1958 SC (Pak) 131 to contend that this illegality in the mode of trial is not curable under section 537, Cr.P.C.
4. The learned Law Officer appearing for the State has submitted that in order to find out whether the offences were committed in the course of the same transaction, the Court has to rely upon the proximity of time, the continuity of action and purpose. As all these accused persons belong to Marzai group, they had community of purpose to pose themselves as Muslim, despite the fact the same offence was committed by different persons at different places, they can be tried jointly under section 239, Cr.P.C. And their trial is neither illegal nor violative of any provision of law, he placed reliance on PLD 1967 Peshawar 32. In that case, his Lordship held that :-- "Unity of criminal behaviour actuated by common intention on the part of all the petitioners to get through their candidate in the polling, rendered them liable to joint trial."
5. Before entering into the realm of facts, it would be desirable to find out what is the meaning of word 'same transaction'.
' The expression 'the same transaction' used in sections 235 and 239 is an expression which from its very nature is incapable of exact definition, and must have been advisedly used because it had this quality.
' It was held in 8 Cr.LJ 191 "that during the years since the expression first appeared in this Statute Book, the combined wisdom of all the High Courts in India has failed to definitely fix its meaning, is sufficiently convincing that the task is impossible. The illustrations, however, make sufficiently clear the intention of the Legislature".
' Again in Raj Bahadur v. Emperor (1935 Cr.LJ 14%) it was held that "it is not possible to enunciate any comprehensive formula of universal applicability for the purpose of determining whether two or more acts constitute the same transaction, but circumstances which bear on the determination of the question in any individual case can be indicated by saying that proximity of time, unity or proximity of place, continuity of action and community of purpose or design are the principal criteria for deciding whether certain acts form parts of the same transaction or not.
The real and substantial test for determination whether several offences were so connected together as to form one transaction, depends upon whether they are related together in point of purpose, or as cause and effect or as principal and subsidiary acts so as to constitute one continuous action."
' Their Lordships of the Supreme Court in Muhammad Mosaddar Haque and Muhammad Abdul Rouf v. The State PLD 1958 SC (Pak.) 131 observed that "community of purpose or design and continuity of action are sine qua non, if the separate acts are to be linked together, so as to constitute one transaction". It was also held in Noor Khan v. The S to PLD 1958 (W.P.) Lahore 1052:- "It is however, now well-settled that the real and substantial test for determining whether several offences are so connected together as to form one transaction is whether the offences are so related to one another in point of purpose, or as cause and effect, or as principal and subsidiary acts, to constitute one continuous action. Therefore, the question whether distinct offences form part of the same transaction is one, the answer to which must depend on the facts of each particular case."
6. Applying the aforementioned principle of law to the facts of the present case I find a bare reading of the F.I.R. Would demonstrate that different persons committed apparently same offence at different places and time with different intention though they belong to same religious sect i.e, Qadiani group. Even date and time is not mentioned in the F.I.R., but it is discernable from the F.I.R.
And the statements of the witnesses under section 161, Cr.P.C. That one offence was committed in the jurisdiction of the learned trial Court whereas the other offence was committed outside the territorial jurisdiction of that Magistrate, hence in these circumstances, these persons cannot be tried jointly on the assumption that they committed the same offence, i.e, punishable under section 298-C, P.P.C., in the course of the same transaction. In addition to that, section 239, Cr.P.C. Relates to charges and has no reference to jurisdiction or venue of trial, matters dealt with in Chapter XV of the Code. The fact that accused persons may be charged and tried jointly under section 239 ibid, does not give territorial jurisdiction to a Court to try them, thus the joint trial of the petitioners by the learned trial Court is legally not sustainable.
' The case-law relied upon by the learned Law Officer is distinguishable, as this illegality goes to the root of the case, hence it is not curable under section 537, Cr.P.C., therefore, the trial of the petitioners alongwith their co-accused before the learned Magistrate is not in accordance with law. This petition is accepted, the impugned orders are set aside. I further direct that every accused person should be tried separately for the offence as required under section 233, Cr.P.C., keeping in view the requirements of Chapter XV of the Code of Criminal Procedure.