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Criminal Appeal No. 17‑P of 1971, decided on 24th April 1972.

(On appeal from the judgment and order of the former High Court of West Pakistan, Peshawar Bench, Peshawar, dated the 27th February 1964, in Criminal Appeal No. 45 of 1963).

Criminal Procedure Code (V of 1898),

Ss. 537, 233 & 235 misjoinder of charges ‑Not objected to, before trial Court nor any prejudice caused to either side‑Trial, held, not bad under amended provision of S. 537.

Abdul Samad Khan, Advocate‑on‑Record for Appellants.

Fakhr‑i‑Alam, Advocate‑General N.‑W. F. P., instructed by Abdul Waheed Khan, Advocate‑on‑Record for the State.

Date of hearing : 24th April 1972.

The appellants, Sayed Muhammad Jafar Shah and Salem Muhammad, who were the driver and cleaner respectively of truck No. H. A. 909, were tried jointly for offences under section 4 of the Prohibition Act and section 19 of the Arms Act, by Mr. Abdul Rauf Khan Durrani, a Magistrate 1st Class, Mardan, who, by his order dated the 15th of August 1962, acquitted them on both the charges. These charges were the result of a surprise search of a truck of the appellants made by the officers of the Excise Department at Par Kalpani Hoti, Mardan, on the 4th of July 1961. This search, according to the prosecution case, was carried out twice in two stages. The sent to the lock‑up, whereafter a second search was carried out, and this time some more quantity of charas weighing 2 rods and seers was found placed under the seat of the driver covered by an iron sheet. Additionally, from the dash board of the truck, an unlicensed revolver and some 21 live cartridges of '32 bore were also recovered.

The State filed an appeal to the High Court against the acquittal of the appellants by the trial Magistrate. A Division Bench of the High Court has accepted the State appeal, and remanded the case for re‑trial on the ground that the recovery of the charas and unlicensed revolver with live rounds, were two distinct and separate offences, and that they were not shown to be connected with each other so as to form the same transaction, justifying the joint trial of both. As the joinder of the charges for these two separate offences was not warranted, it was held that the trial stood vitiated.

It was submitted by the learned counsel for the appellants that the illicit charas as well as unlicensed revolver and ammunition were allegedly recovered from the truck, which was in possession of the appellants, which attracted the penal provisions of the Prohibition Act for one item and of the Arms Act for the other. The fact that some quantity of charas was recovered in the first instance and more along with the revolver and live cartridges on the second occasion within a short time of each other, does not make the two recoveries separate transaction to unnecessarily form the subject‑matter of two separate trials. In any event, neither the State nor the appellants had taken objection to the trial on the ground of misjoinder of charges, and it is not shown that any prejudice has resulted to the prosecution or to the defence as a result of the manner in which the trials has taken place. It may also be mentioned that under the amended provisions of sec tion 537, Cr. P. C., a trial does not become bad on account of misjoinder of charges, and in the present case, as already stated above, no objection was taken to this course and no prejudice has been caused to either side. In the circumstances, we are unable to uphold the order of the High Court for the reversal of the appellant's acquittal on that basis.

In the result, this order is set aside and the case is remanded to the High Court for decision of the State appeal on merits, as the High Court has not at all gone into that question. We order accordingly.

Appeal accepted. Case remands

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