Find a Lawyer

Criminal Reference No. 251 of 1969, decided on 11^th Jan uary 1971.

Ss. 213, 233, 234, 235, 236 & 239‑--Order of commitment‑Sections 233, 234, 235, 236 & 239 apply to trials and not to inquiries‑--Separate charges framed under S. 302/34, P. P. C. against each set of four accused but all accused committed to Court of Sessions by joint commitment order--‑Such commitment order irregular but not illegal‑--Sessions Judge himself can cure such irregularity by holding separate trials of each set of accused.

In re: Nalluri Chenchiah and others A I R 1919 Mad. 45(2); Emperor v. Huseinalli Vilayatalli and others A I R 1942 Bom. 212; In re: Govindu and another I L R 26 Mad. 592; Rahimullah Khan v. Hayauddin and 4 others P L D 1964 Posh. 210 and Noor Din v. Crown P L D 1952 Lah. 185 ref.

Mian Burhanuddin, A. A. G. for the State.

Sikandar Khan for Respondent.

Date of hearing: 22^nd December 1970.

This is a reference to this Court under section 215, Cr. P. C., by the Sessions Judge, Peshawar, with the recommendation that the commitment of the 8 accused in case State v. Hasham and 7 others for the murder of Mst. Sakina be quashed and that the committing Magistrate be directed to hold separate inquiries against each set of the accused in a separate challan.

2. The facts of the case are summarised below:‑

Hasham and Yousaf of village Hazrakhani are brothers. They are sons of Samandur. Hasham and Yousaf reside in contiguous houses separated by a kacha partition wall. Gul Rehman, Momin and Shah Johan, sons of Hasham, reside with their father, while Jamroz, Zarif and Shahbaz sons of Yousaf, occupy the house of their father. There had been mutual grievances between the occupants of the two houses. Five/six days prior to 2‑12‑1966, Hasham was re‑erecting the partition wall of the two houses through masons and labourers. Jamroz, son of Yousaf, complained to Hasham with respect to some encroachment on account of the re‑construction of the wall by Hasham. The protest resulted in a quarrel followed by trial of strength through lethal weapons, wherein Jamroz was allegedly injured by an axe blow on the head and Mst. Sakina, wife of Lajbar, a lady from the neigh bouring house, was killed during the firing. During the investigation it revealed that Mst. Marhama wife of Yousaf and mother of Jamroz, had also received pellet injuries. The occurrence took place on 2‑12‑1966, at about 10 a.m. Both the parties reported the occurrence at Police Station Saddar, Peshawar.

3. Jamroz lodged his report at 11 a.m. at the police station on the same day. He reported that his uncle Hasham and the latter's three sons, namely, Gul Rehman, Momin and Shah Johan were re‑constructing the wall through masons and labourers. Hasham was armed with S. B. shotgun, while Gul Rehman was armed with an axe. At the bidding of Hasham, Gul Rehman gave an axe blow to him on his head, while Hasham fired a shot at Yousaf, father of Jamroz. The shot fired by Hasham missed Yousaf, but wounded Mst. Sakina, wife of Lajbar, who was attracted to the site of occurrence. The shot proved fatal to Mst. Sakina and she expired at the spot. Hasham allegedly fired 3‑4 more shots in the air. On the basis of this first information report case F. I. R. No. 201 under section 302/307/34, P. P. C. was registered at Police Station Saddar, Peshawar. The distance between village Hazar Khani and the Police Station is 1 miles.

4. Hasham lodged his first information report at 11‑45 a.m. on 2‑12‑1966 at Police Station Saddar. The version given by Hasham in his report was that he had started re‑construc tion of the partition wall since 5‑6 days before the occurrence and that on the day of occurrence Majid and one other masons along with Faqir, Zafrai and two other labourers were working at the wall, when Yousaf along with his sons, Jamroz, Zarif and Shahbaz came and felled the portion of the erected wall. The masons and labourers effected separation. The re construction work was again taken in hand when Yousaf, armed with rifle along with his sons Jamroz, Zarif and Shahbaz, armed with fire arms, started firing at him. He (Hasham) took shelter in a kotha for safety. On this report case,. F. I. R. No. 202, under section 307/31, P. P. C. was registered.

5. Both the cases were investigated. At the conclusion of the investigation the Investigating Officer (S. I. Abdul Qayum) was of the opinion that as each of the party was burdening his adversary with the responsibility of that murder of Mst. Sakine, he considered it advisable to split the two cases in three different final reports (challans under section 173, Cr. P. C.), and the three challans were separately put in the Court of inquiry Magistrate. The case (F. I. R. No. 201) was split in two challans. In the first challan of F. I. R. No. 201, Hasham with his three sons, namely, Gul Rehman, Momin and Shah Johan, and Yousaf with his three sons, namely, Jamroz, Zarif and Shahbaz (in all 8 persons) were arraigned as accused. In the second challan of F. I. R. No. 201 Hasham with his three sons, Gut Rehman, Momin and Shah Johan were entered in the column of accused for offences under section 307/34, P. P. C. In the third challan of F. I. R. 20., Yousaf with his three sons Jamroz, Zarif and Shahbaz were called upon to answer the accusation for the offence under section 307/34, P. P. C. The three cases were inquired into by Magistrate 1st Class, Peshawar, separately. In the first case, relating to the murder of Mst. Sakina at the close of inquiry, a charge under sec tion 302/34, P. P. C. within the cognizance of Sessions Court was framed against Hasham, Gul Rehman, Momin and Shah Johan, in that on 2‑12‑65 in village Hazar Khani, in furtherance of their common intention they fired at Yousaf, Jamroz, Zarif and Shahbaz and killed Mst. Sakina by their fires. A second charge was also framed under section 302/34, P. P. C. within the cognizance of Sessions Court against Yousaf, Zarif, Jamroz and Shahbaz, in that on 2‑12‑66 in village Hazarkhani, in furthe rance of their common intention they tired at Hasham, Gul Rehman, Momin, Shah Johan and killed Mst. Sakina by their fires. The committing Magistrate by a joint committal order committed the 8 accused, namely, Hasham, with his three sons, Gul Rehman, Momin and Shah Johan, and Yousaf with his three sons, Jamroz, Zarif and Shahbaz to the Court of Session to stand their trial under section 302/34, P. P. C. In the operative portion of the committal order (para. 14) dated 25‑3‑69, the learned Magistrate observed:‑

"Due to faulty and careless investigation by the police Hasham party and Mohammad Yousaf and party accused in cross cases vide F. I. R. Nos. 201 and 202 respectively have been grouped together in this case under section 302/34, P. P. C. and therefore we have got two sets of P. Ws. one set of the P. Ws. Abdullah Shah and Lakhar Khan have attributed the offence of murder of Mst. Sakina under sec tion 302/34, P. P. C. to Hasham accused and his sons, whereas Abdul Hamid P. W. has charged Yousaf accused and his three sons, namely, Jamroz, Zarif and Shahbaz for the alleged murder of Mst. Sakina deceased. Khushal P. W. 3 who is not an ocular witness to the case, the brother of Mst. Sakina deceased, is a common witness against both sets of the accused and has charged all of them for the murder of his sister. So far as the evidence of Abdullah Shah P. W. 2 goes, he has implicated Hasham accused and his two sons, but it bas not been clarified by him that which of the two sons of Hasham accused out of three challaned by the Police alongwith Yousaf party were meant by him. Similarly Lakhar Khan (P. W. 6) has also attributed the offence to Hasham and his two sons, without clarifying as to which of the two sons of Hasham accused out of the three challaned by the police were meant by him. The evidence of these P. Ws. though very weak against Hasham and party but still requires to be assessed by the Sessions Judge in a regular trial, whereas Abdul Hamid P. W. 8 has clearly stated that he had seen Yousaf and his three sons Jamroz, Zarif and Shahbaz while committing the offence. The evidence of the ocular P. Ws. coupled with the medical evidence makes out prima facie case against all the accused and, therefore, they, i.e. both the parties (eight accused) are committed to the Court of Sessions to stand their trial under section 302/34, P. P. C."

6. As earlier stated, Hasham, Gul Rehman, Momin and Shah Johan were separately committed to the Court of Session to stand trial on a charge under section 307/34, P. P. C. while Muhammad Yousaf, Jamroz, Zarif and Shahbaz were committed by another committal order to stand their trial in the Court of Session on a charge under section 307/34, P. P. C.

7. The present reference pertains to the committal of the 8 accused named earlier. The learned Sessions Judge in his order of reference dated 28‑10‑69 in para. 4 is of the opinion that "the commitment proceedings in the murder case of Mst. Sakina and the commitment of two sets of opposing persons charging each other for the murder by a single order are null and void. In the first place, there was no need to register a separate case for the murder of Mst. Sakina. The charge of murder of Mst. Sakina could be included in both the attempted murder cases against the two sets of accused and the decision on it left to Court. As this has not been done, and a third case challaned to Court and as the learned Magistrate had held a joint trial of two sets of the accused, who each throw the blame for the murder of Mst. Sakina on the rival set of accused, the commit ment proceedings and the committal order are illegal and cannot be maintained."

The learned Sessions Judge, therefore, reported the case to this Court with the recommendation that the commitment of the 8 accused for the murder of Mst. Sakina be quashed and the committing Magistrate be directed to hold separate inquiries against each set of the accused in separate challans.

8. The reasons advanced by the learned Sessions Judge for the quashing of the commitment are, in my view, not weighty, in law, so as to attract an answer to the reference in the affirmative. Section 537, Cr. P. C. has been amended by Code of Criminal Procedure (West Pakistan Amendment) Act (XVII of 1964). Under the provisions of this amendment in clause (a) of section 537, any error, omission or irregularity in a "report by a police officer under section 173" does not vitiate the order of commitment passed by a Court of competent jurisdiction. The non‑inclusion of the charge of murder of Mst. Sakina in both the attempted murder cases against the two sets of the accused, but inclusion of the charge of murder of Mst. Sakina in one consolidated final report against the two sets of the accused is, therefore, not fatal to the commitment proceedings or the consequent joint commitment order.

9. Sections 233, 234, 235, 236 and 239, Cr. P. C. provide for the joinder of charges in the trial of offenders. Section 233 lays:

"For every distinct offence of which any person is accused there shall be a separate charge and every such charge shall be tried separately, except in the case mentioned in sections 234, 235, 236 and 239."

Under the provisions of section 239 (a) "persons accused of the same offence committed in the course of the same transac tion" and (d) "persons accused of different offences committed in the course of the same transaction" may be charged and tried together. These sections apply to trials and not to inquiries. It is not illegal, therefore, to jointly commit several accused persons for offences or hold a joint preliminary inquiry for commitment. Even where there is a joint commit ment, the Sessions Judge should bold separate trials strictly in accordance with section 233, Cr. P. C. In the present case a separate charge has been framed under section 302/34, P. P. C. against each set of four accused, but all the 8 accused have been committed to the Court of Session by a joint commit ment order. In re: Nalluri Chenchiah and others (A I R 1919 Mad. 45 (2)) it has been held:‑

"Section 239 only prohibits a joint trial and not a joint preliminary inquiry for the purpose of commitment to the Sessions."

In Emperor v. Huseinalli Vilayatalli and others (A I R 1942 Bom. 212) it has been ruled:‑

"Section 239 which provides for joint trials, does not apply to enquiries held by the Magistrates in cases triable by the Court of Session. There is nothing to prevent the commit ting Magistrate from holding one inquiry against several accused although they could not be tried jointly consistently with the, provisions of section 239, and although one order of commitment might be made in respect of all the accused, it is competent to the trial Court to order separate trials in order to give effect to the provisions of the Code."

In the matter of Govindu and another (I L R 26 Mad. 592) it has been laid:‑

"The sections of the Code or Criminal Procedure which relate to joinder of charges (including section 239) refer to the trial of the accused. The ruling in Subrahamnia Ayyar v. Emperor (I L R 25 Mad. 61), cannot be extended to a preliminary enquiry held by the Magistrate committing a case to a Sessions Court, so as to render the commitment itself illegal because there was mis-joinder of offences or of offenders. In such a case, the Sessions Judge, if he considers it necessary, can frame charges against and try the accused separately."

In Rahimullah Khan v. Hayauddin and 4 others (P L D 1964 Pesh. 210) the learned Judge relying on the observations made in Noor Din v. Crown (P L D 1952 Lah. 185) at page 211 expressed the view:‑

"Since neither section 235 nor section 239 (d), Cr. P. Code, applies to the enquiry, I see no ground to interfere with the order passed by the enquiry Magistrate, but at the same time I would like to make it clear that in the event of commitment the learned trial Judge will hold separate trials strictly in accordance with the provisions of section 233, Cr. P. Code."

In view of the quoted decisions, the holding of joint commitment proceedings against the two sets of the accused and their committal by one commitment order to the Court of Session amounts to irregularity and not illegality so as to e invalidate the commitment proceedings or commitment order. The learned Sessions Judge can himself cure the irregularity in the committal proceedings by holding separate trials of each of the set of the accused for the charge of murder of Mst. Sakina.

10. In conclusion, the reference is rejected.

K. B. A. Reference rejected.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.