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Criminal Miscellaneous No. 125‑T, in Criminal Revision No. 623 of 1985, decided on 1st December, 1985.

‑‑‑S. 302/460/34‑‑Criminal Procedure Code (V of 1898), Ss. 435 & 439‑‑Accused charged under S. 460/34, P.P.C., held, could be convicted of all offences committed in course of same transaction‑‑If at time of commission of lurking house trespass or house breaking by night, any person guilty of such offence voluntarily causes or attempts to cause death or grievous hurt to any person, such person guilty of causing or attempting to cause death or grievous hurt is not relieved of his, liablility under Ss. 302, 307, 325, 326 &325/511 or 326/511, Penal Code‑ Where such person voluntarily causes death, he was liable under Ss.302 & 460, Penal Code, and his confederates were liable under 5.460 Penal Code, and also under S. 302/34 or 302/149, Penal Code, if it could be proved that they were vicariously liable, or under S. 302/109, Penal Code, if it could be shown that they were abettors, or under S. 302/120‑B if it could be shown that they had criminally conspired to commit murder‑‑Order .of trial Court removing S. 302/34, Penal Code, from charge of accused set aside and S. 302/34, P.P.C. ordered to be added to charges.

Abdul Majid v. The State P L D 1973 S C 595; Nihala v. The State P L D 1954 Lah. 662 and Sohan Singh Caser v. The State A I R 1964 Pb. 130 rel.

‑‑----Ss. 435/439‑‑Penal Code (XLV of 1860), S. 302/460/34‑‑Transfer of case‑‑As a result of impugned order passed by trial Court, complainant losing confidence in Court Petition for transfer accepted.

Muhammad Akhtar Asstt: A.‑G for the State.

Ch. Abdul Wahid for Respondent No. 1.

Date of hearing: 23rd November, 1985.

This judgment will dispose of revision petition (Cr.R. No. 623 of 1985) initiated suo motu at the instance of this Court and the transfer petition (Criminal Miscellaneous 125‑T of 1985) moved by Muhammad Abbas, petitioner, for the transfer of the case titled State v. Muhammad Nawaz and another from the Court of the Additional Sessions Judge, Okara, to any other competent Court.

2. The brief facts of the case are that Muhammad Nawaz and Muhammad Ramzan, respondent Nos. 1 and 2 in the present revision petition, were challaned under section 460/302/34, P.P.C. in respect of the murder of Mst. Hamida Begum, deceased. On 29‑10‑1984, a learned Additional Sessions Judge framed a charge against the respondents under section 302/34, P.P.C. After the said learned Judge was transferred, another learned Additional Sessions Judge took over the trial of the case. The respondents made an application before the latter Judge that the charge under section 302/34, P.P.C. should be dropped and that under section 460/34, P.P.C. should be substituted in its stead. The learned successor Judge, by his order, dated 29‑9‑1985, accepted the application, deleted the offence under section 302/34, P.P.C., from the charge and substituted in its stead that under section 460/34, P.P.C. The learned Judge then sent the file to the Sessions Judge, Okara, with the recommendation that the case may be transferred to a Section 30 Magistrate for trial, which recommendation, however, was turned down. The respondents then petitioned for bail on the ground that the statutory period had expired, which application was allowed by the learned Judge on 29‑9‑1985. Being aggrieved by the said order, Muhammad Abbas, complainant moved a transfer petition (Criminal Miscellaneous No. 125‑T of 1985), which was admitted on 26‑10‑1985. During the arguments on 17‑11‑1985 in that petition, this Court suo motu issued notice to the respondents to show cause why the offence under section 302/34, P.P.C. should not be added to the charge. Both these petitions are now before me for disposal.

3. In both the petitions, Mr. Nawazish Ali Asadi, Advocate for Muhammad Ramzan, respondent No. 2, has made a request for permission to withdraw his power‑of‑attorney, which is hereby granted. Ch. Muhammad Abdul Wahid, Advocate for Muhammad Nawaz, respondent No. 1, concedes both these petitions. However considering that there is no representation on behalf of Muhammad Ramzan, respondent No. 2, before me, it is necessary to deal with these two petitions on merits.

4. The learned Additional Sessions Judge, by his order, dated 29‑9‑1985 (passed in Urdu), substituted the offence under section 460/34, P.P.C. for that under section 302/34, P.P.C. on the ground that the challan was submitted on 29‑10‑1984 under section 302/34, P.P.C. covering the case of Muhammad Ramzan, respondent No. 2, only, and since no further challan had been submitted in respect of Muhammad Nawaz, respondent No. 1, the trial before him under section 302/34, P.P.C. against the two accused was not sustainable and as the murder had been committed in the course of commission of lurking house trespass or house breaking by night, they were only liable under section 460/34, P.P.C. It appears that the learned Additional Sessions Judge glaringly misread the record. The incident took place on the night between 7/8‑4‑1983. Muhammad Ramzan, respondent No. 2, was arrested on 7‑8‑1983; Muhammad Nawaz, respondent No. 1, having previously absconded. On 4‑9‑1983, an incomplete challan was submitted under section 302/460/34, P.P.C. against Muhammad Ramzan, respondent No. 2 on 28‑12‑1983. Muhammad Nawaz, respondent No. 1 was arrested and the second final challan was submitted on 29‑2‑1984 mentioning his name in column No. 3 for offences under section 302/460/34, P.P.C. The finding of the learned Additional Sessions Judge that the final challan in respect of Muhammad Nawaz, respondent No. 1 had not been filed, is, therefore, factually incorrect. The exposition of the law by the learned Judge is also erroneous. If at the time of the commission of lurking house trespass or house breaking by night, any person guilty of such offence voluntarily causes or attempts to cause death or grievous hurt to any person, such person guilty of causing or attempting to cause death or grievous hurt is not relieved of his liability under section 302, 307, 325, 326, 325/511 or 326/511, P.P.C. Where such a person voluntarily causes death, he is liable under sections 302 and 460, P.P.C. and his confederates are liable under section 460, P.P.C. and also under section 302/34, P.P.C. or 302/149, P.P.C. if it can be proved that they were vicariously liable, or under section 302/109, P.P.C. if it can be shown that they were abettors, or under section 302/120‑B, P.P.C. if it can be shown that they had criminally conspired to commit the murder. If any authority is required for this view. Abdul Majid v. The State P L D 1973 S C 595; Nihala v. The State PLD 1954 Lah. 662 and Sohan Singh Caser v. The State A I R 1964 Punjab 130 may be referred. In these circumstances, the removal of the offence under section 302/34, P.P.C. from the charge appears to be illegal and improper. Interference in the revisional jurisdiction is, therefore, called for, so that the charge may properly contain the offences committed by the two respondents in respect of which the trial has already begun. Since, as a result of the impugned order, dated 29‑9‑1985, the complainant has lost confidence in the learned Additional Sessions Judge, who is the author of the said order, it is desirable in the interest of justice that the case be transferred from his Court to that of any other competent Judge in the District.

5. For the foregoing reasons, exercising my powers under section 439, Cr.P.C. I hereby set aside the order of the learned Additional Sessions Judge, dated 29‑9‑1985, restore that of 29‑10‑1984 and add the offence under section 460/34, P.P.C. to the charge previously framed. The trial shall now be treated as that in respect of offences under section 302/460/34, P.P.C. The new trial Judge shall ensure that such of the witnesses whose evidence was recorded prior to 29‑9‑1985 C are re summoned for cross‑examination, if the respondents so desire, in respect of the charge added under section 460/34, P.P.C. and that such of the witnesses whose evidence was recorded after 29‑9‑1985 are resummoned for cross‑examination, if the respondents so desire, in respect of the charge under section 302/34, P.P.C. which now stands restored.

6. I hereby accept the transfer petition (Criminal Miscellaneous No. 125‑T of 1985). The Sessions case is hereby transferred from the Court of the present incumbent and shall be tried either by the learner Sessions Judge. Okara, himself, or by any other Additional Sessions Judge In the District to whom he may mark the same for trial.

M.Y.H. Petition accepted.

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