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Criminal Appeal No. 22 of 1959, decided on 6th October 1959.

(On appeal from the judgment and order of the High Court of West Pakistan, Peshawar Bench, Peshawar, dated the 24th November 1958, in Criminal Appeal No. 200 of 1958).

-----S. 239-Joint trail Accused H caught red handed while cutting crop of another and on latter s alarm several persons assembling and taking accused to a hujra for inquiry‑Accused G confessing his that accused A and S were also cutting Accused A appearing and demanding release of accused G and on refusal starting gunfire killing one and injuring others‑Contention that joint trial of accused G on theft charge and of accused A on murder charge was illegal, both offences being not part of same transaction‑Transaction, held, involved all three accused commenc ing with capture of G and ending with shooting by A and there being community of purpose as well as continuity of action in events, joint trial of all three accused was not illegal‑Penal Code (XLV of 1860), Ss. 302 & 379.

Md. Masaddar v. The State P L D 1958 S C (Pak.) 131 and Babulal Choukhani v. King‑Emperor 65 1 A 158 rel.

Mushtaq Hussain Khan, Advocate Supreme,‑ Court instructed by Mazharul Huq, Attorney for Appellant.

J. H. Rizvi, Advocate‑General West Pakistan (Mushtaq Hussain, Advocate Supreme Court) instructed by Ijaz Ali, Attorney for the State.

Date of hearing : 6th October 1959.

‑Special leave was given to the appellant Arab Khan to appeal against his conviction for the murder of one Sherdil Khan by gun‑fire and for attempt to murder three other persons who were also injured by gunshots. In the same trial, one Gulzaman had been convicted under section 379, P. P. C., but a third accused person Sadiq by name who had been charged under section 3 j 9, P. P. C. had been acquitted. The ground upon which leave to appeal was granted is stated in the order as follows :‑

"to consider the question whether the trial of Arab Khan on the murder charge, jointly with Gulzaman and Sadiq on the theft charge, was legal. It is argued by Mr. Mushtaq Hussain Khan that the theft and the murder were not parts of the same transaction on the facts of the case and separate charges were framed by the trial Judge against the two sets of accused, without any interlinking reference between the two charges."

The relevant facts as to the commencement and termination the transaction out of which the charges arose were as follows. On the night of the 27th April 1958, at about 9 p.m., the witness Sikandar Khan (P. W. lo) caught the accused Gulzaman cutting wheat from his field. He raised an alarm which attracted a number of people who joined in taking Gulzaman to a certain hujra. On being questioned, Gulzaman disclosed that Arab Khan and Sadiq had been cutting wheat along with him, but had escaped. This was said before an assembly of villagers, including lambardars, and while the enquiry was in progress Arab Khan appeared on the spot and asked what the matter was. On being told that Gulzaman who was Arab Khan's servant had been caught stealing wheat from Sikandar Khan's field, and 1,ad implicated Arab Khan and Sadiq as well, Arab Khan first demanded that Gulzaman should be released, and when this was refused, he started firing shots with a gun.

One of these shots was responsible for the death of Sherdil Khan and other shots injured three other persons. The night was moonlit. No question was raised as to the identity of Arab Khan as the gunman.

The legality of the joint trial of Gulzaman on the theft charge and Arab Khan on the murder charge is challenged on the strength of the provision in section 239, Criminal Procedure Code to the effect that persons accused of different offences committed in the course of the same transaction may be charged and tried together. It is contended that the shooting by Arab Khan was not a part of the same transaction as that which included the capture of Gulzaman and his being taken to the hujra aforesaid and the enquiries which followed. We consider that this argu ment is without force. It is in evidence that in the course of the said enquiry, Arab Khan was told that he too was implicated in the theft. He was therefore a principal person against whom the enquiry was directed. A judicial confession by Gulzaman was proved at the trial in which he clearly named Arab Khan as B one of the thieves along with himself. The learned Advocate General of West Pakistan was able to show that in the accusation contained in the final report of the investigating police authorities to a Magistrate, the transaction was described as involving all the three accused, commencing from the time of the capture Gulzaman and ending with the shooting by Arab Khan. The necessary feature of a single transaction involving more than one incidents is that the incidents should be linked together by community of purpose or design and continuity of action. Md. Masaddar v. The State (P L D 1958 S C (Pak.) 131). There can, in our view, be no doubt that there was such community of purpose as well as con tinuity of action in the events which commenced with the capture of Gulzaman, and the shooting by Arab Khan.

Reference was also made in the course of the arguments to the leading case of Babulal Choukhani v. King‑Emperor (65 1 A 158) where the provisions of clause (d) of section 239, Criminal Procedure Code were examined and the following view was expressed :‑

"Their Lordships are of opinion that the view adopted in India is correct, as the High Court have held in the present case. The clause deals with three matters, accusation, charge and trial. It says nothing about verdict. The condition is expressed in the words persons accused of different offences, etc'. It does not say rightly accused', or accused and convicted'. It is on the basis of what appears on the face of the accusation that the Court may proceed to charge and try. The accusation is necessarily enter or to the exercise of the discretion to charge and try. These are stages subsequent to the accusation."

On this and other grounds, their Lordships of the Judicial Committee were enabled to find an answer to the "point of difficulty" which had been strenuously argued by them in the appeal viz. as to "the point of time in the proceedings at which the condition prescribed by clause (d) of section 239, Criminal Procedure Code must be fulfilled". They found that the answer which had been given in an unbroken series of authorities in Indian Courts, namely, that the relevant point of time is that of the accusation, was the correct answer, upon a true construction of the clause. In this case, the accusation clearly described the transaction as including both the theft as well as the shooting.

We accordingly find no ground for interfering, with the decision in this case, and we hereby dismiss this appeal.

Appeal dismissed.

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