M. HUSSAIN ADIL KHATRI, J.- The Applicant has challenged the order dated 20-11-1990 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 PPC and the other filed against the applicant under Section 201 PPC be amalgamated and the applicant and Rahim Bux Jamali be tried under one charge with charge heads under Sections 302 and 201 PPC.
2. The facts are that on the basis of FIR No.8/90 under Section 302/201/34 PPC of P.S. Gadap (CIA), Karachi East, lodged against unknown persons for murder of Dr. Fozia Bhutto, the applicant was arrested on 1-2-1990 and his confessional statement against was recorded on 10-1-1990. An interim challan was submitted against the applicant alongwith co-accused Rahim Bux Jamali under Section 302/34 PPC. It was followed by Final Challan wherein applicant was charged with offence u/s 201 PPC and the other accused U/s 302 PPC. Later on two separate challans were submitted, one against applicant under Section 201 PPC and the other against the other accused under Section 302 PPC.
3. Mr. MA. 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 PPC is an off shoot of the offence under Section 302 PPC and therefore, unless the applicant succeeds in demolition of the main charge under Section 302 PPC made against the main accused, Rahim Bux Jamali, he cannot defend charge under Section 201 PPC. He further contended that the offence under Section 201 PPC 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 Vs. The State (PLD 1976 S.C. 695), Zahid Ali and two others Vs. The State (1986 M LD 2477) and MA. Jalil Vs. The State (PLD 1969 S.C. 552). The above contention has been raised on the basis of Section 239 (d) Cr.P.C.
Mr. Shoukat Zubedi, learned AA.G. Sindh has contended that, neither the two offences can be said to have been committed in the course of the transactions, nor the offence under Section 201 PPC allegedly committed by the applicant is the off shoot of the offence committed by Rahim Bux Jamali under Section 302 PPC. 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 cashes of The State Vs. Rahim Bakhsh (PLD 64 S.C.120), and Chhota Abu Vs. 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.
5. In the case of Machia and two others (supra)relied upon by the learned Counsel of the applicant, the accused party had entered into a conspiracy to murderously assault the complainant party and after making full preparation killed four persons at different places on the same day. The accused party was charged under Section 120-B read with Section 302 PPC for the four murders committed by them and were convicted. Appeal filed in the High Court was dismissed. The case was brought before the Supreme Court and a legal objection was taken to the effect that all the accused had been tried for four murders, in addition to other charges, in the same trial, therefore, the trial was illegal because it was contrary to the mandatory provisions of Section 234 Cr.P.C, which prescribed that not more than three offences of the same kind committed in the space of one year could be tried together. It was held that there was charge against all the accused persons under Section 120-B PPC and Section 235 of Cr.P.C, expressly permits, the trial of a person "for more offences than one" if the offences have been committed in the course of the same transaction and since 9 persons were being tried together the provisions of Section 239(d) Cr.P.C, were relevant.
While dealing; with the question whether the offence was committed in the course of same transaction, their Lordships referred to the following observation made in the Babu Lal's case (AIR 1938 P.C. 130):- "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 tacts 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."
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."
6. In the instant case the prosecution has not found the two accused in common concert and agreement, so much of it to the good luck of the applicant, in the commission of murder of the victim. The prosecution case on the face of it, makes the applicant liable for the act of causing disappearance of evidence only and nothing beyond that. The above authority therefore, does not, in any manner, second the contention of the learned Counsel.
In Zahid Ali's case (Supra) four persons were accused of the same offence committed in the course of same transaction, in that all the four had boarded the plane from the same place, all the four got down by the same Airport, gold slabs were recovered from each, concealed in specially made shoes worn by each and there was material produced before the Court with regard to conspiracy hedged by them and therefore, the offence committed by them was considered having been committed in the course of same transaction.
7. In the case of MA Jalil, it was alleged in the FIR that 20-25 persons including the appellant, MA.
Jalil committed the murder of Tehsildar by conspiracy and spread out a false rumour that he had committed suicide by setting fire to his body. It was found by the Court that the accusations plainly attracted two distinct offences culpable homicide and the other screening of the offences committed. The accused persons were tried, each of them for offences under Section 203 and 201 PPC. Before the Supreme Court the point was raised that the joint trial for both the offences had vitiated the proceeding. The above contention was repelled as the facts of that case left no room for doubt that the two offences complained of in the case were connected to each other as respects the point of time, the place of occurrence, continuity of the actions of the persons accused of the offences and the community of their purposes. This case does not in any manner help the case of the applicant.
In this case the applicant has been charged only for an offence under Section 201 PPC and there is no allegation against the applicant that he had in any way abetted in the commission of the murder or that he lad assisted Rahim Bux Jamali in any manner in the commission of the said offence or the applicant and Rahim Bux Jamali were in conceit to commit murder.
8. On the contrary the case of Chhota Abu relied upon by 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 PPC whereas one Mst. Badurunnisa was charged under Section 201 for having caused the evidence of murder committed by Chhota Abu to disappear. However, both of them were tried jointly and convicted. In appeal before lie High Court, plea was taken that the trial was vitiated for the reason that offences alleged to have been committed wore unconnected with each other aid 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 re-trial.
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 Jamali was accused of murder and the present applicant was charged with suppressing evidence etc. It is further observed that Rahim Bux Jamali as per interim and final challans had himself and independently committed the murder of. Fozia and thereafter he himself took pay the dead body in the self driven Car and then threw the 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 PPC is off shoot of offence u/s 302 PPC is rather spacious. His contention that the applicant will be prejudice in his defence if is tried independently for the charge under Section 21 PPC, is without any foundation. On the contrary, as held in the case of Chhota Abu, the trial would be vitiated if both the accused are tried jointly. Equally, without force is the contention of the learned Counsel that unless the applicant has opportunity to demolish the charge under Section 302 PPC levelled against the other accused the applicant would be prejudiced.
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 PPC. 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.
The above are the reasons for the short order announced by me on 4-6-1991.