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Criminal Revision No. 6 of 1946, decided on 22nd July, 1986.

--Ss. 233 to 239--Criminal trial Accused to be tried separately for each offence.

---S. 239--Word 'may' in operative part of S.239, Criminal Procedure Code confers discretion on trial Court--Where Court was satisfied that trial of various accused including principal and abettors might be held together, it was free to do so as to ensure fair and just trial--Accused charged for various offences, at discretion of Court could be tried for each offence distinctly or jointly within the limits fixed under the provisions of Criminal Procedure Code--Discretion of trial Court to try person accused of an offence and a person accused of abetment or an attempt to commit such offence, separately or by a joint trial--Court has authority to hold a joint trial under exception (b) of S.239, Criminal Procedure Code--.Decision of holding a separate or pint trial, however is to rest on satisfaction that the trial shall be fair and just.

Ahmad Khan's case P L D 1965 (W.P.) Pesh. 65; Noor Dins case P L D 1952 Lah. 185 and K. Satwant Singh's case A I R 1960 SC 266 rel.

---Ss. 233 to 239--Penal Code (XLV of 1860), S.302--Joint trial of co--accused undertaken by Trial Court when principal accused was absconder--On arrest of principal accused subsequently when major part of prosecution evidence had been recorded, it was, deemed expedient by Trial Court to try principal accused separately--Held, discretion was with Court to hold a separate or joint trial of accused person charged of murder--Trial Court empowered to hold separate trial court not be compelled to hold joint trial--Primary consideration, while adopting one of modes of trial, must be to ensure fair, impartial and just trial District, Criminal Court was directed to reappraise position and decide whether it was conducive to hold a separate or joint trial of principal accused and those accused of abetment of offence of murder in circumstances.

M.H. Gilani, A.-G. for the State.

Ch. Aleem-ud-Din for the Complainant.

Respondent in person.

Date of institution: 3rd May, 1986.

The petition is directed against y tile order of District Criminal Court, Kotli, passed on March 11, 1986, 'Whereby the request of the prosecution to holds trial of Muhammad Aziz, principal accused, jointly with Muhammad Yunus and Muhammad Karim, co-accused, was turned down.

2. The petition has arisen out of criminal proceedings instituted against Muhammad Aziz, accused. The occurrence took, place on October 16, 1981. According to the allegations levelled against the accused persons, Muhammad Aslam, deceased, was murdered by Muhammad Aziz by gunfire with the abetment of Muhammad Yunus alias Sain. Muhammad Aziz absconded after the incident whereas Muhammad Yunus and Muhammad Karim, accused, were challaned on August 17 1982. In compliance with the provisions of section 512, Cr.P.C. the trial Court recorded the statement of the process-server to arrive at the conclusion that the accused had absconded and. there was no immediate prospect of arresting him. In the trial Court decided to examine the witnesses of, the prosecution" to record their depositions. Muhammad Aziz was arrested and challaned separately on July 25, 1985 when in the original challan, the evidence of prosecution was at the verge of conclusion as only one witness was left behind. In the separate challan, Muhammad Aziz was examined under section 242, Cr.P.C. and he pleaded not guilty. The prosecution made a request to the Court for holding joint-trial of the accused by recording evidence of the remaining prosecution witnesses in presence of Muhammad Aziz and by recalling the prosecution witnesses whose depositions were recorded in his absence to provide him opportunity to cross-examine those witnesses. This request was turned down by the District Criminal Court as, in its view, acceptance of the request would mean de novo trial of all the accused which, in summons trial, was not permissible.

3. Mr. Aleem-ud-Din, the learned counsel for the complainant emphasised that Muhammad Aziz is the principal accused as the fatal injury is ascribed to him. The other accused are alleged abetment in the occurrence of murder of. Muhammad Aslam; it is, therefore, expedient that the trial is held jointly and thus the likelihood of conflicting opinion is avoided. Mr. M.H. Gilani, the learned Advocate-General supported Mr. Haleem-ud-Din.

4. The procedure applicable to trial and charges is prescribed under sections 233 to 239, Criminal Procedure Code. Chapter XX of the Code, dealing with trial of summons cases, contains no express provision for separate or joint trials of accused of offences resulting from common occurrence. The provisions ox sections 233 to 239 are equally applicable to trials in summons cases.

5. Section 233 postulates that for every distinct offence of wh1ch any person is accused, there shall be a separate charge and every such charge shall be tried separately except in the cases mentioned in sections 239 235, 236 and 239. It is accepted that though in a trial in a summons case, no formal charge is framed as in the warrant trial, yet the provisions relating to separate trial contained in section 233 are attracted even in trial in summons cases. These provisions are designed to safeguard the interest of defence to avoid prejudice likely to occasion by confusion for accumulation of charges levelled against the accused or his associates the scheme of law, therefore, is that an accused should be tried separately for each offence. The provisions of section 233 are subject to exceptions listed under sections 234, 235, 236 and 239. The proposition in present case is covered by clause (b) of section 239, therefore, discussion is confined to interpretation of these provisions only. Section 239 postulates that the following persons may be charged and tried together, namely:-

(a) . ...........:

(b) persons accused of an offence and persons accused of abetment, or of an attempt to commit such offence;

(c) ..... . ........ ................. . .

(d) ................. ....................... .... ................

(e) ................................... ........................

(f) ................ ....................... :

(g) ............. ............ ::

Clause (b) of, section 239 is attracted irk a case where one or more than One accused are principal offenders and others are abettors or accomplices in attempt to commit such offence. Clause (b) of section 239, therefore, permits such accused to be tried together in one trial: In the operative part of section 239, the Legislature used the word 'may'. The law has conferred discretion on trial Court; when it is satisfied that trial of various accused, including the principal and the abettors, may be held together it is free to do so to ensure fair and just trial.

6. In Ahmad Khan's case P L D 1965 (W.P.) Pesh. 651 on construing the provisions of sections 234 to 239, Cr.P.C. Mr Justice Faizullah Khan arrived at the conclusion that it was for the prosecution to try an accused of different offences in one trial as the provisions were permissive and not mandatory. It was held that in case the prosecution decides to split the charges and try the accused separately on those charges, the accused cannot insist on. joinder of charges, as separate charges and trials is a rule and joint trial an exception. The facts of the said case are though distinguishable, but the spirit of law contained in sections 234 to 239 was clearly construed in the aforesaid shape In Noor Din's case P L D 1492 Lah. 185, Mr. Justice M.R. Kayani construed the ambit of the provisions of sections 233 and 239 in the following manner:

"When section 239 says that 'the following persons may be charged and tried together', one meaning of what it says can be that if the conditions enumerated in that section exist, then apart from a joint trial of such persons, some one or other of such persons may in addition be tried for offences committed by them separately, provided this part of the-trial is permitted by. Section 234. But there can be another meaning, and an equally effective meaning that only such persons may tie tried together rib fulfil the conditions laid down in section 239, and that no other charge can be joined in the same trial. And considering that section 139 is an exception to the general rule enunciated in section 233--the rule of a separate charge and a separate trial for every distinct charge--it would appear that the second meaning is preferable. For where there is 4 rule and an exception thereto, then unless a case falls strictly into the language of the exception, it should attract the rule."

7. The proposition also received attention of the Supreme Court of India in K. Satwant Singh s case A I R 1960 S C 266. The learned Judges of the Supreme Court on surveying the case-law on the point, arrived at the following conclusion:

"The entire tenor of the provisions of section 239 indicates that several persons could be tried together for several offences committed in the circumstances mentioned therein. Under section 239(b) persons accused of several offences and persons accused of abetment thereof could be tried together at one trial. So, construed framing of three charges under section 420. Penal Code against a person and three charges of abetment against another in the same trial did not infringe the provisions of clause (b).

8. The consensus is that an accused charged for various offences, at the discretion of the trial Court can be tried for each offence distinctly or jointly within the limits fixed under the provisions of Code. Likewise, it is left at the discretion of the trial Court to try the person accused of an offence and a person accused of abetment or an attempt to commit such offence, separately ark by a joint trial. The Court has authority to hold a joint trial under the exception (b) of section 139, Cr.P.C. But the decision of holding a separate or joint trial is to rest on satisfaction that the trial shall be fair and just.

9. The present case does not raise the proposition mentioned above squarely within the, ambit of rule enunciated above as here the trial of the accused ascribed abetment was undertaken jointly. Muhammad Aziz, accused was absconder, as such he was not placed under trial alongwith the co-accused. He was arrested subsequently when the major part of prosecution evidence was recorded. Therefore, it was deemed expedient td try him separately. It was argued by the learned counsel for the complainant that in presence of permission to allow to hold joint trial, D the District Criminal Court may try Muhammad Aziz, principal accused, alongwith the accused ascribed abetment of murder of Muhammad Aslam deceased. The proposition, therefore, boils down to this that discretion lies with the Court to hold separate or joint trial of the accused person charged of murder. The trial Court has already declined to hold a joint trial as in its opinion, by resorting to joint trial and recalling prosecution witnesses, the whole exercise shall amount to de novo trial. I differ with the finding of the trial Court on this point as by recalling the prosecution witnesses whose deposition was already, recorded, it shall not allow other accused persons already present at the time of such deposition to cross-examine them. Therefore, the trial shall not be strictly in the spirit of de novo trial. Nevertheless, the trial' Court being empowered to hold separate trial, cannot be compelled to join the accused with his associates to face joint trial. The primary consideration while adopting one of the modes of trial in the present case must be to ensure fair, impartial and just trial.

10. In view of the reasons listed above; it is ordered that the District Criminal Court, Kotli shah re-appraise the position and shall decide whether it is conducive to hold a separate or joint, trial of the principal accused and the accused of abetment of the offence of murder.

The petition is disposed of accordingly.

M. Y. H. Order accordingly.

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