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Criminal Appeal No.460 of 1984, heard on 31st March, 1985.

‑‑‑Ss. 325/34, 148 & 149‑‑Police challaned three accused out of eight and finding other five innocent‑‑Trial Magistrate summoning accused not challaned by police after recording of some evidence and charging them under S.325/34, P.P.C., separately‑‑Framing of charge under S.325/34, Penal Code, separately and making two sets of accused of one F.I.R., held, illegal‑‑Accused persons being more than five, provisions of S.34, P.P.C. not applicable‑‑Accused should have been charged under Ss. 148 & 325/149, Penal Code‑‑Case remanded with directions to frame fresh charges under Ss.148 & 325/149, Penal Code, and decide case according to law.

Inayat Ullah Cheema for the State.

Abdul Sattar Chughtai for Respondents.

Date of hearing: 31st March,‑ 1985.

This is a Government appeal against acquittal of Bahara, Hifazat Hussain, Liaqat Hussain, Muhammad Hussain, Ghulam Hussain, Sakhawat Hussain, Muhammad Sher and Muhammad Ali by learned Assistant Commissioner, Mankera vide judgment dated 28‑2‑1984 from the charge under section 325/34, P.P.C.

2. The facts necessary for decision of this appeal are that a case under section 325, P.P.C. was registered against the abovenamed accused at the instance of Sarfraz complainant. The Police during investigation, found Bahara, Hifazat Hussain and Liaqat Hussain guilty and challaned them to face trial under section 325/34, P.P.C. The remaining five accused were found innocent and not challaned.

3. The prosecution filed challan in the Court of Resident Magistrate on 23‑12‑1981. On that date, no one of the three challaned accused was present and were accordingly summoned by the trial Court. The accused appeared in Court on 22‑2‑1982, on which date the copies of the previous statements of the witnesses were disbursed to them. All the three were formally charged under section 325/34, P.P.C. on 6‑3‑1982 whereafter the learned trial Magistrate summoned prosecution evidence. The prosecution examined some witnesses. On 5‑12‑982 the trial Magistrate after recording the evidence of two witnesses' ordered that the five accused, not challaned by the Police, be summoned for 19‑12‑1982 to face trial alongwith the three challaned accused. The case was transferred to A.C. Mankera. It was placed before him on 19‑12‑1982 but the five accused summoned by the Resident Magistrate were not present. All the eight accused for the first time appeared before the A.C. on 3‑3‑1983. The five accused were handed over the required copies under section 265(c), Cr. P. C. and the case was adjourned for framing of charge to 15‑3‑1983. On that date, only the newly summoned five accused were charged under section 325/34, P.P.C. whereafter the prosecution evidence was summoned for 30‑3‑1983. The trial remained pending before the learned A.C. Mankera, who recorded the entire prosecution evidence, statements of the accused and the defence evidence. He vide the impugned judgment, dated 28‑2‑1984 acquitted the accused.

4. It is contended by the learned counsel for the State that the procedure adopted by the learned trial Magistrate during the trial was not legal. The precise arguments of the learned counsel was that initially only three accused had been charged under section 325/34, P.P.C. Later the remaining five accused who had not been challaned by the Police were also summoned. These ‑five accused were charged separately under section 325/34, P.P.C. which was not legally correct procedure. It ‑was contended by the learned counsel for the appellant that all the accused should have been charged together; that the number of accused being more than four, they all should have been charged under section 148, P.P.C. and for the same reason the provisions of section 34 were not attracted and instead all the eight accused should have been charged under section 325/149, P.P.C. It was, therefore, argued by the learned counsel that the procedure adopted by the learned trial Magistrate was not legal and as such all the subsequent proceedings in the trial could not be upheld. The learned counsel for the respondents did not controvert the above contentions of the learned counsel for the State and conceded that the charge was not correctly framed against the accused.

It was next contended by the learned counsel for the State that the impugned judgment was slip‑shod judgment and did not conform to the requirements of section 367, Cr. P. C. The learned counsel for the respondents controverted the contentions of the learned counsel for the appellant and argued that the impugned judgment was in conformity with the provisions of section 367, Cr. P. C.

5. I have considered the above contentions of the learned counsel for the parties. A narration of the facts given above clearly indicates that after summoning of the five accused not challaned by the Police, the charge was not correctly /legally framed. These five accused were separately charged under section 325/34, P.P.C. from the three challaned accused. The number of accused being more than four, the provisions of section 34 were not applicable. The accused should have been charged under section 325/149, P.P.C. instead of 325/34, P.P.C. They, for the above reasons, should also have been charged under section 148, Cr. P. C. p In view of this, it was necessary that the fresh charge should have been framed against all the eight accused jointly. This procedure was not followed by the learned trial Magistrate. The charge framed against the accused was not legal which vitiates the trial against the accused. The charge being not legal, all the subsequent proceedings will be of no effect in the instant case. Both the learned counsel agreed on this point and prayed that the case will have to be sent back for retrial. In view of this, I need not go into the second question about the compliance of the provisions of section 367, Cr. P. C.

6. As a result of the above, the impugned judgment, dated 28‑2‑1984 passed by Mr. Agha Javed Hussain, A.C. Mankera is set aside. The case is sent back to learned Sessions Judge, Bhakkar who will entrust the same to a Magistrate of competent jurisdiction for trial according to law (other than Mr. Agha Javed Hussain). The learned trial Magistrate will frame charge against the accused under sections 148, 325/149, U P.P.C. record evidence afresh and decide the case according to law. The accused /respondents are present in person. They are directed to appear before the Sessions Court, Bhakkar on 27‑4‑1985.

A. A. Appeal accepted .

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