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Criminal Revision No. 412 of ,1957, decided on 4th February 1958.

Misjoinder of charges‑Misjoinder of two distinct and separate offences under Ss. 147 and 342, Penal Code, committed not in the course of same transaction‑Trial vitiated.

The accused were charged under Sections 147 and 342, Pakistan Penal Code, for having committed rioting in furtherance of the common object of forcibly taking away a' woman from the house of S. and for having wrongfully confined the same woman at another place at the house of one A.

that the trial had been vitiated by misjoinder of charges. The offence under section 147 having been committed 4t 'a different place and at a different time with the particular common object did not form part of the same transaction with the offence of confining the woman at a different place and at a different time.

The confinement at a different place and necessarily at a different time could not be said to be a part of the same transaction. There was thus neither proximity of time, nor proximity of place, nor continuity of action nor community of purpose in the case to attract the provisions of clause (d) of section 239 of the Criminal Procedure Code.

Mahbubar Rahman for Petitioners.

This Rule was . issued at the instance of eight petitioners who have all been convicted under section 147 V the Pakistan Penal Code and some of them have also been convicted under sections 323 and 324 of the said Code. They have all been sentenced to pay a fine of Rs. 40 for the offence under section 147 of the Pakistan Penal Code or in default to suffer rigorous imprisonment for 11 months each and, in addition thereto, petitioner No. 1 alone has been sentenced to six months' rigorous imprisonment for an offence under section 324 of the said Code. No separate sentence has, however, been imposed in respect of the conviction under section 323 of the Pakistan Penal Code. It is against the aforesaid conviction and sentence made by the learned Magistrate that an appeal was preferred before the learned Sessions Judge of Jessore who has only reduced the sentence of petitioner No. 1 herein under section 324 of the said Code to one of four months instead of six months but has maintained the rest of the conviction and sentences and dismissed the appeal.

It is against this order that the petitioners have now come up in revision to this Court and obtained this Rule. This Rule is limited to one ground only, namely, that the trial is vitiated by the misjoinder of two distinct and separate offences under sections 147 and 342 of the Pakistan Penal Code committed not in the course of the same transaction but in different transactions.

It appears that the petitioners before us were charged firstly under section 147 of the Pakistan Penal Code with having committed rioting at a place called Vekutia within police‑station Kotwali in prosecution of the common object of alleged forcible taking away of one Latifunnessa from the house of one Sole man.

The charge under section 342 of the Pakistan Penal Code was for having wrongfully confined the said Latifunnessa at another place called Mandu within the same police‑station at the house of one Abdul Sikdar. In these circumstances, the learned Advocate appearing in support of the Rule has urged that even though the petitioners were acquitted of the charge under section 342 of the Pakistan Penal Code, there has been a trial contrary to the mandatory provisions of law contained in section 233 of the Code of Criminal Procedure and, therefore, the entire trial must be vitiated. His argument based upon the decision of their Lordships of the Judicial Committee in the case of Babulal Choukhani and another v. The King‑Emperor (42 CWN 621 (PC)) is that since the legality of a joinder of different persons and offences depends on facts appearing on the face of the accusation and not on the facts as they are established at the end of the trial, the acquittal is of no consequence, since, the trial com menced contrary to law and, therefore, the conviction must be set aside. Our attention has also been drawn to the decision of our own Federal Court in the case of Quadar Dad and others v. Sultan Bibi and the Crown (PLD 1956 FC 129), where their Lordships held that section 233 wholly prohibits a joint trial unlesss the case comes within the categories which are specifically excluded and further that in a case of joinder there is really no question of prejudice but the question is whether the law laid down with regard to the mode of trial 'has been contravened. If it has been con travened and the trial has been conducted in a manner different from that prescribed by the Code, the trial is bad and no question of curing any irregularity arises.

We think, therefore, that there is a great deal of substance in this contention of the learned Advocate. It is clear upon the charges themselves that the offence under section 147 alleged was committed at a different place and at a different time with a particular common object which did not include the wrongful confinement of the said Latifunnessa. Thus, the confinement of Latifunnessa at a different place and necessarily at a different time could not be said to be a part of the same transaction. There was thus neither proximity of time, nor proximity of place, nor continuity of action nor community of purpose in the present case to attract the provisions of clause (d) of section 239 of the Code of Criminal Procedure.

In these circumstances, this Rule must be made absolute and the convictions and sentences must be set aside but this does not mean that they are to be acquitted of the said charges. We are not satisfied that there is no evidence found against their convictions under sections 147, 324 and 323 of the Pakistan Penal Code. We, therefore, direct that they be retried on the said charges under sections 147, 324 and 323 after separating the charge under section 342 of the said Code. Since they have already been acquitted under section 342, it is not necessary to try them again on the said charge under section 342 of the said Code.

Let the records be sent down immediately and the trial be conducted in accordance with law as expeditiously as possible. In the meantime, petitioner No. I will continue on the same bail which was granted to him by this Court.

z. A. s.

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