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Criminal Revision No. 111 of 1968, decided on 9th. July 1968.
Ss. 439 & 537 read with S. 234(1)‑Trial held in contravention of S. 234(1)‑--Illegality vitiating trial‑‑Not remediable under S. 537‑Accused ordered to be retried.
The State v. Mirza Azam Beg and another P L D 1964 Lah. 339; Subrahmania Ayyar v. King‑Emperor I L R 25 Mad. 61 and Muhammad Mosaddar Haq and another v. The State P L D 1958 S C (Pak.) 131 ref.
Ch. Nazeer Ahmad Cheema for Petitioners.
Kh. Saeedul Hassan for A.G. for the State.
Date of hearing: 9th July 1968.
By order dated the 21st of October 1967, Mr. Tufail Raider, section 30 Magistrate, Lyallpur, convicted Sarwar, Lall, Shahu and Sultan under section 392, P. P. C. to undergo rigorous imprisonment for a period of three years each, notwithstanding the circumstance that in the charge‑sheet only Sarwar, Lai and Shahu were mentioned. Similarly, Sarwar, Lal and Shahu were examined on the close of the prosecution evidence under section 342, Cr. P. C. which indicates that Sultan was either not present before the Court when the charge was framed or the examination of the accused under section 342, Cr. P. C. proceeded in the absence of Sultan. It is remarkable that the trial Magistrate proceeded to convict Sultan, who was neither charged nor examined under section 342, Cr. P. C. on the close of the prosecution evidence. He had not the opportunity to adduce defence and was condemned unheard. It was urged before the learned Sessions Judge in appeal that the trial Magistrate convicted Sultan notwithstanding the fact that his case was separated, that he was neither charged nor his statement under section 342, Cr. P. C. was recorded by the trial Magistrate. The learned Sessions Judge brushed aside the contention on the ground that Sultan did not file any appeal against his conviction. The learned Sessions Judge, Lyallpur, dismissed the appeal of Sarwar, Lal and Shahu on the 4th of December 1967. They have now come up in revision to this Court under section 439, Cr. P. C.
2. Shortly stated the facts of the case ard: that the petitioners along with Sultan had, on the 25th of March 1966, at 7 p.m. robbed Nizam Din, a coolie of the Jute Mills at Jaranwala of a sum of Rs. 18 and a pair of shoes. Half an hour later they deprived Faqir Ullah, another coolie of the Crescent Jute Mills, Jaranwala, of a fountain‑pen, wrist watch, a Chadder and a sum of Rs. 5. The culprits also searched the person of Umar Din, a companion of Faqir Ullah but did not find anything with him. At about midnight they robbed Amira of his shirt, Khes, Pagri, Kulhari, Juti, Jersey and a Chadder. The next victim was Muhammad Ali, the other gateman at the level crossing on the Lahore Road. Muhammad Ali was sleeping in his quarter when he heard a noise and opened the door. Sarwar and Sultan entered his quarter followed by Shahu and Lal. Shahu had a pistol while Lal carried a gun. Sarwar and Sultan were armed with Kulharis. They asked Muhammad Ali to hand over to them whatever he possessed. They took the lantern and ransacked his quarter. They took away a pair of shoes, one Khes, a Chadder turban and Kulhari belonging to Muhammad Ali. On the following morning Muhammad Ali went and informed the police of what had happened. A case under section 392, P. P. C. was registered on the basis of the statement Exh. P. A. of Amira P. W. 1 which was recorded by Qurban Hussain Sub‑Inspector on the 26th of March 1966 at 10 a. m. In the course of the investigation the property was recovered from the petitioners and their co‑accused Sultan, who came to be arrested by a Nakabandi party on the night intervening the 27th and 28th of March 1966 in the area of Jhok Sammunke. They were sent up for trial which ended not only in the conviction of the petitioners but also that of their co‑accused Sultan notwithstanding the circumstance that he had neither been charged with the petitioners, at one trial, nor was examined on the close of the prosecution evidence under section 342, Cr. P. C. The petitioners appealed but the learned Session's Judge, Layallpur, upheld their conviction and the sentence notwithstanding the objection raised before him as regards the legality of the trial.
3. Ch. Nazir Ahmad Cheerna, learned counsel for the petitioners, contended that the conviction was improper in that the trial was held in contravention of section 234 (1), Cr. P. C. The contention, in my opinion, is well‑founded. Section 234(1), Cr. P. C. provides as under:‑
"234 (1) When a person is accused of more offence than one of the same kind committed within the space of twelve months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with, and tried at one trial for, any number of them not exceeding three."
4. The petitioners and their co‑accused were accused of four offences and even if it be considered that all the four offences were committed in the course of the same transaction, still they could not be lumped and tried together at one trial. Offences, of the same kind are defined in subsection (2) of section 234, Cr. P. C. as offences which are punishable with the same amount of punishment under the same section of the Pakistan Penal Code or, of any special or local law Even if it be held in view of the prviso to section 234 (2), Cr. P. C. that the offences committed by the petitioners and their co‑accused were of the same kind, still the petitioners could not be charged with and tried at one trial for more than three offences.
5. Kh. Saeed‑ul‑Hassan. Advocate, for the State, relied on the amended section 537, Cr. P. C. In support of the argument that the irregularity committed by the Magistrate did not amount to an illegality vitiating the trial. The following clause was inserted by the Code of Criminal Procedure West Pakistan (Amendment) Act, 1964 after clause (a) in section 537, Cr. P. C. of Act V of 1898:‑
"(b) of any error, omission or irregularity in the charge or mode of trial, including any mis-joinder of charges, or";
The explanation to section 537, Cr. P. C. runs:‑
"In determining whether any error, omission or irregularity in any proceeding under this Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings."
In view of the explanation, I find that the objection as regards tile legality of the trial was taken in appeal before the learned Sessions Judge but he came to the conclusion that the robbery which the petitioners committed on Amira and Muhammad Ali P. Ws. is one occurrence, because the quarter of Amira is quite close to the quarter of Muhammad Ali. Nizam Din was robbed at 7 p. m. while Faqir Ullah was robbed at 7,30 p. m. and by this process of reasoning the learned Sessions Judge concluded that the trial was not held in contravention of the provisions of sections 234 (1), Cr. P. C. because persons accused of more offences than once of the same kind committed within the spare of twelve months could be charged with and tried at one trial. Ongoing through the statement of Muhammad Ali P. W. 2, it is clear that when he opened the door on hearing a noise outside, the miscreants entered his quarter and removed some of his belongings. Shahu had a pistol, while Lal carried a gun. Sarwar and Sultan had Kulharis with them. It would be thus seen that the offence committed by the miscreants was not under section 392, P. P. C. alone in so far as Muhammad Ali was concerned. On the view that I have taken in the matter the lump ing together of four offences out of which the one committed in respect of Muhammad Ali was not of the same kind as that committed in relation to Amira. Faqir Ullah and Nizam Din was not an irregularity but an illegality. In the case The State v. Mirza Azam Beg w id another (P L D 1964 Lah. 339) it was held that "it is, therefore, not possible to combine the provisions of two or more sections or the different sub‑clauses of section 239 in any one case, or to justify a trial of several persons partly by applying the provisions of one clause and partly by applying the provisions of another clause or other clauses, and a joint trial is permissible if it is permitted by any one of these sections viz. 235, 236 and 239, Cr. P. C." The Privy Council in Subrahmania Ayyar v. King Emperor (I L R 25 Mad. 61) and the Supreme Court of Pakistan in Muhammad Mosadder Haq and another v. The State (P L D 1958 S C (Pak.) 131) held that the express provision of law as to the mode of trial was not a mere irregularity which could be remedied by section 537, Cr. P. C. Notwith standing, the amendment of section 537 by the Code of Criminal Procedure, West Pakistan (Amendment) Act. 1964. I am still of the view that, the trial of the petitioners in contravention of section 234 (1), Cr. P. C. was an illegality which vitiated the aril.
6. For tile reasons stated above, the conviction and the sentence passed on the petitioners is set aside. They are ordered to be retried in accordance with law from the stage at which the illegality occurred. They shall henceforth be treated as under trial prisoners in jail.
Retrial ordered.
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