' Sarwar and Umar Din were convicted and sentenced under section 411, P. P. C. By the judgment of the learned Magistrate First Class, Montgomery (Sahiwal) dated 9th of November 1965, as under :- ' Sarwar was sentenced to undergo R. I. For eighteen months. Umar Din was sentenced to undergo R. I. For one year.
' They filed two separate appeals before the learned Sessions Judge, Montgomery, who vide his judgment dated 3rd of March 1966, dismissed the same. Umar Din who was a police constable at that time when he was convicted of this offence filed this revision petition which was admitted by this Court by order of 24th of March 1966, on the legal plane to examine whether the trial was contrary to the provisions of section 236 read with section 239, Cr. P. C. The petitioner was released on bail by the same order.
2. I have heard the learned counsel on behalf of the petitioner and have examined the relevant sections of the Criminal Procedure Code. Section 236 reads as under :- "If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once ; or he may be charged in the alternative with having committed some one of the said offences."
' Section 239 provides as under :- "The following persons may be charged and tried together, namely :-
(a) persons accused of the same offence committed in the course of the same transaction.
' In the instant case Sarwar son of Sultan alone was charged for offence under section 411 for having on 12th of June 1965, stolen two bullocks belonging to Thiraj P. W. One of which was sold to Imam Ali P. W. 5 for Rs, 800, whereas the recovers' of the first bullock was effected from both the accused on 17th of June 1965. The learned trial Court his mentioned these facts as under :- "There are two different transactions involving the accused, one concerning the first bullock the recovery of which was effected from both the accused on 17-6-65 and the second bullock was recovered from Imam Ali P. W. 5, to whom accused Sarwar had sold it on 12-6-65."
' While accepting this situation, the learned trial Court did not comply with the provisions of section 239 and thus tried both the convicts jointly of the two charges which was a procedure unwarranted in the eye of law. Sarwar convict was found to have a previous police record and this further prejudiced the case of the petitioner as he stood shoulder to shoulder charged join for a transaction which had taken place on a different date. In view of the mandatory provisions of section 239, Cr. P. C. And the law laid down, it seems that this legal point has escaped the notice of both the learned trial Court as well as the learned Sessions Judge.
3. The learned counsel appearing on behalf of the State has pointed out that this point was not raised by the petitioner at the time when he filed the appeal before the learned Sessions Judge, therefore, the learned Session Judge did not take notice of this legal flaw and contended that the petitioner was not justified to raise this point at the provisional stage. I am afraid this contention of the learned counsel is without force because the law on this point is settled that a legal point can be raised even before the ultimate Court of appeal. In view of the above legal position both the impugned orders cannot be maintained and this ordinarily would be a case for retrial.
4. The learned counsel appearing on behalf of the petitioner has relied on Muhammad Akbar Khan Bugti v. State (1) and has submitted that after a lapse of ten years it will not be desirable to hold a retrial of a person who has lost his job and has also suffered a period of one month's confinement in consequence of his conviction and dismissal of his appeal by the learned Sessions Judge.
5. I am in agreement with the learned counsel as I do not feel that justice would be vindicated if Umar Din who is an ex-police constable, is once again arraigned before the Court of law after he has been on bail for ten years and has settled in life without committing any further offence so far. I have got no dispute with the proposition that the law envisages a retrial in such cases, but as this case has suffered with inordinate delay for no fault of the petitioner, therefore, it will serve no useful purpose to make him undergo once again the agony of a criminal trial with which he suffered ten years earlier.
6. In view of the above, I am not inclined to order retrial of this case and set aside the impugned orders in view of the legal infirmity with which they suffer. The petitioner is on bail. He shall stand discharged of his bail bonds. {{FOOT NOTE}}
(1) PLD 1967 Kar. 186 {{FOOT NOTE}}