' CH. KHURSHID AHMAD, J.--- Muhammad Shahid and Javaid Hussain alias Dangiwala were tried along with two other accused Muhammad Younas and Abid Ali by Mr. Justice (Retd.) Muhammad Sharif Chaudhry, Judge Special Court for Speedy Trial, Multan and vide his impugned judgment, dated 16-5-1994 Muhammad Shahid and Muhammad Javaid were convicted whereas Muhammad Younas and Abid Ali were given benefit of doubt and were acquitted of the charges framed against them. The conviction of the appellants was recorded under section 12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 for kidnapping Jaffar P.W. For the purpose of committing unnatural sexual offence with him and were convicted accordingly under section 12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with section 34, P.P.C. And were awarded 10 years' R.I. Each and a fine of Rs,10,000 each or to suffer four months' S.I. And 30 stripes each. They were also convicted under section 377/34, P.P.C. And were sentenced to 10 years' R.I.
Each and a fine of Rs,15,000 each or to suffer six months' S.I. Each in default of payment of fine. The sentences awarded were ordered to run concurrently regarding the offences committed against Jaffar P.W. In case of recovery of fine the same was to be paid as compensation to victims.
' Regarding charge under section 12, Ordinance VII of 1979 and under section 377, P.P.C. About Javed P.W. Three accused Shahid, Abid and Younas were acquitted of the charge under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and section 377, P.P.C. Javaid Dangiwala was however, convicted under section 12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 for kidnapping Javaid P.W. And he was sentenced to suffer R.I. For 10 years and a fine of Rs,10,000 and 30 stripes. In default of payment of fine he was to suffer four months' S.I. He was also convicted under section 377, P.P.C. For committing sodomy with Javed P.W. And was sentenced to 10 years' R.I. And fine of Rs,15,000. In default of payment of fine he was to undergo six months' further S.I. The sentences so awarded were to run concurrently in each case.
2. Before examining merits of the appeal we propose and proceed to examine the propriety of joint trial regarding two occurrences of kidnapping and sodomy wherein two boys Jaffar P.W. Aged 14 years and Javed P.W. Aged 16 years were alleged to have been subjected to kidnapping punishable under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and under section 377, P.P.C. On 6-8-1993 and 4-8-1993 respectively.
' Javaid P.W. Was kidnapped by Javaid Dongiwala Shahid, Abid and six other unknown persons on 4-8-1993. Javaid accused allegedly had committed unnatural lust on Javaid P.W. Thereafter, all other accused committed the offence of sodomy with him. Muhammad Jaffar P.W. The real younger brother of Javaid P.W. Was kidnapped by Javaid Dongiwala appellant and Shahid appellant, Abid and seven other accused persons on 6-8-1993 and subjected to act of sodomy.
3. The plain reading of F.I.R. Would show that in case of Jaffar there were 10 accused persons who had abducted and subjected to sodomy and in case of Javaid P.W., nine persons were alleged to have been responsible for kidnapping and committing sodomy. The first occurrence took place on 4-8-1993 whereas Muhammad Jaffar was kidnapped almost 48 hours thereafter and there was one additional accused with the appellants. The Investigating Officer could only trace one Muhammad Younas, acquitted accused and the rest of the accused persons could either had not been traced or were intentionally let off by the Investigating Officers.
4. Whether the petitioners could be charged and tried together for the commission of these two distinct offences committed with a time gap of two days in one trial and whether any irregularity if committed was curable under section 537, Cr.P.C. Is a legal proposition which can be resolved by considering the case-law relevant to the facts of the present case where commission of offences were reported in the same F.I.R.
5. In Noor Din v. The Crown PLD 1952 Lah. 185 this aspect was thoroughly discussed. Mst. Saphian and one Dina, her paramour, were killed on the same night, the motive being the resentment of the three convicted persons who were relatives of Mst. Saphian. In the first information report it was stated that all the three persons reported against at (about 9 or 10 p.m.) during the night caused injuries to Mst. Saphian and that Noor Din (one of the three) alone had at (about 3 or 4 a.m.) caused fatal injuries to Dina, the paramour of Mst. Saphian and it would be appropriate to reproof.
The relevant paragraph hereunder:-- It cannot be doubted that two assets were actuated by the same motive nor is it unlikely that oath of the were planned by all the three appellants but in order to come to the conclusion that the two incidents, which took place at different times, were part of the same transaction, the Court must have before it some evidence, direct-or circumstantial, in support of it, but such evidence is lacking in the present case. Moreover, it appears to me that the question whether or not a joint trial with respect to two distinct offences on the ground that they were committed in the course of same transaction, was allowed by law, is to be decided not on the consideration of the evidence produced in the case but on the acquisition made by the prosecution."
6. The provisions of section 239, Cr.P.C. Were taken into consideration by the D.B. Seized of the above case. It was held that the joint trial was illegal and section 537 of the Code of Criminal Procedure could not be invoked. The D.B. Dliposing of the said case considered plethora of judgments available including Ghulam Muhammad v. The Crown PLD 1951 Lah. 11 and Babu Lal Chokhani v. King Emperor AIR 1938 PC 130. In Muhammad Ali v. Nazra etc. 1985 PCr.LJ 2752 the joint trial of 8 accused in a case involving two murders which were the result of two separate transactions was held to be not permissible. In Sh. Muhammad Asjam and others v. The State and 2 others 1991 MLD 1973 the provisions of sections 233, 239 and 537, P.P.C. Were considered in the circumstances where two distinct offences were out of the same transaction and while referring to Raj Bahadur v. The Emperor 1935 Cr.LJ 1496 our learned brother Sh. Muhammad Zubair, J.
Reproduced the following to elucidate the matter:- "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."
' In yet another case Muhammad Mosaddar Hague and Muhammad Abdul Rouf v. The State PLD 1958 SC (Pak.) 131 it was observed:-- "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."
' In Noor Khan v. The State PLD 1958 (W.P.) Lah. 1052 it was held as under:-- "It is however, now welt-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 the facts of each particular case."
7. Applying the above principles as enunciated in the judgments cited above, it is evident that the abduction of Javaid P.W.1 on 4-8-1993 and sodomy upon him was committed by the present appellants, two of acquitted co-accused and six others of whom the Investigating Officer said nothing whereas in the second offence committed on Jaffar P.W. On 6-8-1993 the appellants and acquitted co-accused were the same but there were seven more accused persons who had allegedly participated in the kidnapping and had also committed the offence under section 377, P.P.C. Kidnapping of Jaffar and committing sodomy on him were two distinct offences but were committed in the same transaction and according to clause "d" of section 239, Cr.P.C. They could be charged and tried together but the offence of abduction of Muhammad Javaid P.W. And commission of sodomy on him was though offence of the similar nature but the number of the accused in both these cases were different. Although the abduction and sodomy regarding Javaid victim was committed in the same transaction but the offences committed on 6-8-1993 with regard to Jaffar were in no way committed in the course of the same transaction and it is held that these offences were distinct offences and not committed in the course of same transaction.
Clause "c" of section 239, Cr.P.C. Is also relevant which may be considered for the purpose of deciding the present case and it reads as under:-- "239(c) What persons may be charged jointly.--- Persons accused of more than one offence of the same kind, within the meaning of section 234 committed by them jointly within the period of twelve months."
8. As observed earlier the number of accused persons as mentioned in the statements of these two victims were different and who were thus other 6 and 7 accused persons respectively who could not be arrested by the police, is also to be considered. If those very persons were accused of more than one offence only then reference could be made to section 234 of the Cr.P.C. And offences of the same kind could be charged and tried together but in the present case the number of accused were different except for the four who were challaned and therefore, their joint trial was to be considered with reference to section 537, Cr.P.C. In case of Sh. Muhammad Aslam and other referred supra, the irregularity was an illegality which was considered to have gone to the root of the case and it was held that the same was not curable under section 537, Cr.P.C. And the joint trial of the appellants in the said appeal was held to be not in accordance with law and separate trial was ordered. In Muhammad Ishaq v. The State 1991 PCr.IJ 1836 it was held that the offence of murder and the offence of removing of the dead body from the place of occurrence to another place by another person were not committed in the course of same transaction and separate trial was ordered after examining Machia and 2 others v. The State PLD 1976 SC 695, Zahid Ali and 2 others v. The State 1986 MLD 2477, M.A. Jalil v. The State PLD 1969 SC 552, The State v. Rahim Bakhsh PLD 1964 SC 120, Choota Abu v. The State PLD 1960 Dacca 918 and Babu Lal's case AIR 1938 PC 130. 9 In view of what has been stated above the joint trial of offences.
9 In view of what has been stated above the joint trial of offences' committed with regard to victim Javed P.W. On 4-8-1993 and of offences committed on 6-8-1993 with regard to Jaffar victim on 6- 8-1993 was an irregularity which was not curable and proceedings from the stage of framing of charge in the joint trial stands vitiated and are of no legal consequence.
10. The appeal accordingly succeeds and the judgment of conviction and sentence recorded cm 16-5-1994 by Mr. Justice (Recd.) Muhammad Sharif Chaudhry, Judge Special Court for Speedy Trial, Multan is set aside in the above terms.
11. The case shall be remitted back to the Court of competent jurisdiction. The learned Assistant Advocate-General has been directed to advise the concerned authorities to prepare two separate reports under section 173, Cr.P.C. With regard to commission of offences regarding Javaid victim and with regard to Jaffar victim respectively and file the same in Court for holding of separate trials of the accused in accordance with law.