' The appellant, an Indian national, was intercepted by Ch. Muhammad Nawaz, Station House Officer of Police Station, Narang on the night between 17th and 18th May 1967, in the presence of Muhammad Ishaq, A. S. I. And Inayat Ullah Lambardar. He was found carrying a bag containing an unlicensed loaded pistol with five cartridges including one in its barrel as also seers of opium, which were taken into possession vide memo. Exh. P. A. A sample of this opium was sent to the Chemical Examiner, who found it to be non-excise opium vide his report Exh. P. B. Since the appellant had no permit for entry into Pakistan nor had any licence for the possession of pistol the Sub-Inspector drew out complaint Exh. P. C. About it and sent it to the police station for registration of the case, Exh. P. D. Being site plan of the place of this recovery.
2. On the completion of the investigation that followed four separate challans, one under section 4 of the Pakistan Entry Act, second under section 13 of the Arms Act, third under section 9 of the Opium Act and fourth under section 167 (8) of the Sea Customs Act were put in Court against him.
One Chaudhry Khan alias Major (acquitted accused) was said to have been harbouring him for some days in the past. He was also challaned with him in the last mentioned case. The Ilaqa Magistrate consolidated all these cases as all the offences were said to have been committed in the course of the same transaction and the same set of witnesses were to depose in each case and recorded evidence in the file of the main case under section 167(8) of the Sea Customs Act. On completion of the inquiry, Chaudhry Khan was, however, discharged and the learned Magistrate framed four separate charges against him for each of the above-detailed offences. The appellant pleaded not guilty to each charge saying that six of his cattle had strayed away from mauza Bhaghpura a border village on 15th May 1967, and in the course of the search he had crossed the river and was yet on the Indian territory when he was apprehended by a Head Constable who kept him at the house of Inayat Ullah Lambardar (P. W. 3) for the night and produced him at the Narang Police Station on the next day, i,e,, 16th May 1967. He examined Foot Constable Bashir Ahmad in his defence to prove some entries in the roznarncha about his arrest on 16th May 1967, but there was no such entry therein. His contention thus found no support from the roznamcha. He was accordingly convicted by the learned Magistrate on 31st August 1967, who sentenced him to rigorous imprisonment for six months under section 4 of the Pakistan Entry Act ; to rigorous imprisonment for one year under section 9 of the Opium Act; to rigorous imprisonment for one year uuder section 13 of the Arms Act; and to rigorous imprisonment for five years under section 167(8) of the Sea Customs Act with a direction that all the sentences would run consecutively. He has filed an appeal through Jail, but was represented by Mr. M. D. Janjuah, Advocate, on the day of the hearing of this appeal.
3. His main contention was that the joint trial for different type of offences in one case was illegal and had vitiated the proceedings held against him. He had relied on some old authorities Bankey Lal v. Emperor (1) and Onkar Singh v. Emperor (2) which have been dissented from by this Court in Noor Khan v. The State (3) and relying on views expressed in Emperor v. Sherufalli (4) Ortcheson, J.
(as he then was) observed as under :- "The expression 'same transaction' is not defined in the Criminal Procedure Code, it having been pointed out by various High Courts that the word 'transaction' is by its very nature incapable of exact definition. It is, however, now well settled that the real and substantial test for determining whether several offences are so connected {{FOOT NOTE}}
(1) AIR 1942 Oudh 462 (2) AIR 1934 Oudh 457
(3) PLD 1958 Lah. 1052 (4) 27 Bom. 135 {{FOOT NOTE}} ' 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, as 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."
' Same view was taken in Krishna Murthy v. Abdul Subhan (1) holding that in order that a series of acts be regarded as the same transaction they must be connected together in some way as for instance by proximity of time, unity of place, unity or community of purpose or design and continuity of action.
In the present case all the recoveries were effected at the dame time from the same bag in the presence of the same set of witnesses; an all these offences had been committed in course of the same transaction and could be charged with and tried at one trial for all these offences under the provisions of section 235 of the Criminal Procedure Code. Separate challan for each offence had been drawn out by the police. After the recording of evidence in the file of the main case, separate charge-sheets were drawn out for each offence and his plea had also been recorded separately under each charge. Lie had led no evidence to refute these recoveries from him, so the case of the appellant cannot be said to have been prejudiced in any manner and there was no occasion for his being misled in his defence. In the absence of any hardship or embarrassment on account of a joint trial which is permissible in law, it cannot be considered that it had caused any prejudice to the case of the appellant. In West Pakistan, in view of the amendment in section 537, Cr. P. C. (b) no finding, sentence or order passed by a Court of competent jurisdiction can be reversed or altered on appeal or revision on account of an error in the mode of trial including misjoinder of charges or persons and Khan Muhammad v. Said (2) is an authority on this point. It was earlier held in Nura v.
The State (3) that a joint trial in absence of any prejudice to the accused was a mere irregularity curable under section 537 of the Criminal Procedure Code. It was then urged that all these offences were distinct in nature as they were penalised under different enactments but this point was also set at rest in the above referred case Noor Khan v. The State, wherein it was observed "I may add with respect, that I have been unable to appreciate the significance of the word 'very' in the expression 'two very distinct offences'. The mere fact that one of the offences was under the Arms Act and the other under the Penal Code is, of course, immaterial for consideration of the question before me, since the expression 'offence', as defined in section 40 of the Penal Code, includes offences under a special or local law."
' I, therefore, find no force in these contentions of the learned counsel and proceed to examine the evidence led against him at the trial and find no material discrepancies in the statements of the witnesses, which could discredit them. In fact the appellant had not seriously contested his apprehension, the recovery of the opium and the pistol etc. He only stated that these articles were planted on him. There being no evidence in rebuttal, I have no hesitation in accepting the prosecution evidence and hold that his conviction for each of the offences was well founded. This appeal is accordingly dismissed. {{FOOT NOTE}}
(1) AIR 1965 Mys. 128 (2) PLD 1969 Lah. 537
(3) PLD 1966 Lah. 383 {{FOOT NOTE}} ' As regards the sentence the appellant has already served out the concurrent sentences imposed upon him under section 4 of the Pakistan Entry Act, the Opium Act and the Arms Act and has undergone by now rigorous imprisonment for three years and about four months in the main case under section 167/B of the Sea Customs Act and in addition he must have earned a remission of about nine months. The quantity of the opium which he was intending to smuggle was only seers which was not very large, so I reduce his sentence in the main case under section 167/B of the Sea Customs Act to imprisonment already undergone by him which comes to about four years as stated above and should meet the ends of justice in this case. Release warrants to issue forthwith. . .