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Criminal Appeal No. 671 of, 1962, decided on 12th December 1962.
S. 373‑Ingredients: obtaining possession of person, under eighteen ; intention or knowledge that such person would be used for purposes mentioned in section -Evidence of intention or knowledge must be that receiver was "at time of receipt" compelled by desire to use such person for unlawful and immoral purpose‑Teaching singing and dancing‑Not prostitu tion.
S. 373‑Words "otherwise obtains possession"‑Person can be said to obtain possession without intervention of third party.
Jatindra Mohan Das v. Emperor A I R 1937 Cal. 250; Emperor v. Mutayalu 47 I C 865 ; Queen Empress v. Sukker Raur I L R 21 Cal. 1947 and Dowlath Bebi v. Sheikh Ali (1870) 5 MHC R 473 not fol.
Emperor v. Shamsunder Bhai A I R 1921 Bom. 323 ; Bhagchand v. Emperor A I R 1934 Born. 200 and Emperor v, Gordhandas Kalidas A I R 1942 Bom. 24 ref.
S. 373‑Age of girl‑Onus lies on prosecution to prove her minority beyond "shadow" of doubt Bare statement of girl about her own age without any corroboration‑‑Not sufficient.
Bhola Sardar v. Emperor A I R 1932.Ca1. 417 rel.
S. 239‑Sam transaction‑Ingredients : proximity of lime; proximity of place and community of purpose‑Continuity of action and commune of purpose lacking‑Joint trial illegal.
Ss. 239 & 537 Infringement of S.239(d) constitutes illegality as distinguished from irregularity‑Question of prejudice to accused irrelevant.
Babu Lal Chakhani v. The King‑Emperor 1938 P C 113 ; Ghulam Muhammad v. Crown P L D 1951 Lah. 11 ; Subrahmania Ayar v. The King‑Emperor 28 I A 257 ; A I R 1938 P C 130 ; Nur Din v. The Crown P L D 1952 Lah. 185 and Qadir Dad v. Crown PLD 1956FC 129 ref.
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------Trial at place outside jurisdiction --Defect not fatal if no failure of justice occasioned thereby‑Criminal Procedure Code (V of 1898), S. 531.
Iqbal Ahmad Siddiqi for Appellants.
Muhammad Abdullah Bajwa for A.‑G. for Respondent.
Date of hearing : 15th October 1962.
This is an appeal by Mewa Din son of Khewa Din, Toti son of Khewa Din and Mst. Wazeeran wife of Mewa Din who have been convicted by Mr. Saleem Akhtar, Additional District Magistrate, Lyallpur, under sections 373 and 344 Pakistan Penal Code, by his order, dated the 1st of July 1962. Mewa Din and Toti have been sentenced under section 373, Pakistan Penal Code, to undergo rigorous imprisonment for five years each and also to pay a fine of Rs. 100 or in default to undergo rigorous imprisonment for further three months. They were also sentenced under section 344, Pakistan Penal Code, to undergo rigorous imprisonment for three years and a fine of Rs. 100 each, or in default to undergo further rigorous imprisonment for three months. Mst. Wazeeran has been sentenced under section 373 to undergo rigorous imprisonment for one year and a fine of Rs. 100 or in default to undergo further rigorous imprisonment for three months. She was sentenced also under section 344, Pakistan Penal Code, for one year and a fine of Rs. 100 or in default to undergo further rigorous imprisonment for three months. The sentences of imprisonment of all the three appellants are to run concurrently and the sentences in default of fine are to run consecutively.
2. Chaudhri Ghulam Jilani, inspector, C. I. A., raided on the 19th of December 1961, the Red Light Area of Lyallpur. Mst. Sakina alias Almas (P. W. 1) appeared before him and made a statement (Exh. P. A.). The facts stated in Exh. P. A. are that she was a daughter of one Ayub, caste Pathan, resident of Akra Pura, District Peshawar, who had started a vegetable shop in Mardan, but his family consisting of his second wife and two daughters lived in village Takhtbai. Mahbub Khan, her uncle, also lived with them. Her father sent a message that she should come to Mardan with his clothes. Mahbub Khan, her uncle, sent her to Mardan with the clothes. She got down at the Bus Stand and on her way to the shop of her father, she entered a house to drink water. Mewa Din accused and two women by the names of Wazeeran and Khan Haider were present in the house. Mst. Wazeeran gave her water to drink.
Mewa Din closed‑the door and she was confined inside the house. She started weeping when Wazeeran slapped her to keep quiet. Mewa Din took her to the house of his relative Toti, the same evening, and entrusted her to Toti accused and his wife, Mst. Tajpara. She was kept confined in that house for one year and was guarded by Toti and his wife Tajpara. Mewa Din also used to come there at times. Mewa Din and Toti told her that she would be trained in singing and dancing. A year after that Mewa Din and his wife Mst. Wazeeran accused brought her to Lahore by train and the three started living in a house in Heera Mandi. Mewa Din engaged two tutors to teach her dancing and singing who used to give her training from 10 o'clock at night up to 12 midnight. She could not give the names of her tutors. They taught her music and dancing for six months. Mewa Din and his wife Mst. Wazeeran accused thereafter made her sing and dance in that house and used to collect the money so received. She continued to dance and sing for another six months. Wazeeran accused also used to sing and dance with her. Mewa Din and Wazeeran accused thereafter entrusted her to one Sikandar and left for Mardan. Sikandar used to live in their neighbourhood and had two women by the name of Musarrat and Nasim with him from whom he used to have the prostitution done. She narrated her woeful tale to Sikandar, but he paid no need. She had hardly stayed with him for nine or ten days when she was taken along with Musarrat and Nasim to the prostitution den. She was compelled to indulge in prostitution. On her refusal to do so, she was threatened to be killed. She indulged in prostitution m Lahore for a year. Sikandar Khan used to take her in the morning and bring her back at about 10 o'clock at night. Mst. Musarrat, Nasim and Sikandar remained always on her guard and Sikandar Khan used to benefit by her earnings. Sikandar Khan then brought her to Lallpur about four months before the date of her statement. Musarrat came with her. She had to do the prostitution here as well. She stayed in Lyallpur for two months when she was taken back to Lahore, where she again remained as a prostitute for one month and was brought back to Lyallpur. Sikandar put her and Musarrat under the supervision of his mother, Mst. Husan Pari, and left for Lahore. She was made to carry on prostitution and Sikandar also visited Lyallpur on some occasion. She further stated that Husan Pari used to receive her income. She was compelled to do prostitution and on her refusal to do so was threatened with dire consequences. She said that she wanted to go back to her father.
3. Chaudhry Ghulam Jilani sent the report to Police Station Kotwali. A formal first information report (Exh. P. A/A) under sections 342/366 and 368, P. P. C., was registered against the appellants, Sikandar and Mst. Husan Pari accused. Mewa Din, Toti and Mst. Wazeeran were arrested on the 6th of January 1962, and Sikandar Khan and Mst. Husan Pari on the 10th of January 1962, by Amir Husain, Assistant Sub -Inspector (P. W. 7). The prosecution in support of their case examined eight witnesses, Mst. Almas, (P. W. 1), Muhammad Zulfikar (P. W. 2), Mst. Khurshid (P. W. 3), Fateh Ali (P. W. 4), Nathe Khan (P. W. 5), Ch. Ghulam Jilani, Inspector C. I. A. (P. W. 6), Amir Husain Assistant Sub‑Inspector, (P. W. 7) and Malik Manzur Ali Sub‑Inspector, (P. W. 8). The accused produced nine witnesses in defence, namely, Afzal Khan, (D. W. 1), Amir Shah (D. W. 2), Amir Khan (D. W. 3), Ghulam Ahmad (D. W. 4), Muhammad Anwar (D. W. 5), Mst. Naseem (D. W. 6), Mst. Musarrat (D. W. 7), Muhammad Akram (D. W. 8) and Jan Muhammad (D. W. 9). The learned Magistrate while sentencing the appellants, acquitted Sikandar and Mst. Husan Pari accused.
4. It may be mentioned at the outset that none of the witnesses including Mst. Almas (P. W. 1) stated that she was made to indulge in prostitution at any time either at Mardan or at Lahore, when she was under the control and supervision of Mewa Din, Toti or Mst. Wazeeran, the appellants. She made an unequivocal statement that it was after she was entrusted to Sikandar accused and remained with him for eight or nine days that she was compelled by him to indulge in prostitution and Sikandar accused and his mother Mst. Husan Pari thereafter were responsible for her indulgence in this nefarious activity.
5. The case against the appellants depends on the evidence of Mst. Almas (P. W. 5), Mst. Khursheed (P. W. 3), Fateh Ali (P. W. 4) and Nathey Khan (P. W. 5). Mst. Almas in her examination‑in‑chief, narrated the facts which were contained in Exh. P. A. and have been reproduced in extenso above. She stated in her cross‑examination that she used to cry and raise alarm when she was kept in confinement in the house of Toti in Mardan. She also raised alarm on her way from Mardan to Lahore and did so both at Mardan and Lahore Railway Stations, but nobody helped her. She also complained to the persons who came to hear her songs. She admitted that the police used to visit her place, but she never made any complaint to them, because she was threatened by Mewa Din and Mst. Wazeeran not to do so. She also admitted that she had obtained a licence for the purpose of prostitution. She denied her marriage with Sikandar accused. She, however, admitted that she had executed a pronote in favour of one Badshah Gul in Multan in which she described herself as the wife of Sikandar, although she admitted Sikandar was not present at that time. She denied the suggestion that she was the wife of Sikandar, but in the meanwhile had developed intimacy with one Captain Ansari and at his instance was anxious to get rid of her husband and so made the statement, (Exh. P. A.). She said that she did not know Captain Ansari. However, when confronted with the photograph (Exh. D/1) in which she was sitting with Captain Ansari, she admitted her association with him but said that it had been only for a few days. She made her statement (Exh. P. A.) on the 19th of December 1961, and appeared in the Court for a statement on the 24th of March 1962, but during all this time, she said, she had not gone to her parents nor did she accompany the police to Mardan to point out the house where she had been kept in unlawful confinement or the place where her father was doing the business and also the house where she lived. She could not even name the Mohallah or the Bazar, where her father was doing the business in Mardan. She was also ignorant of the name of the Mohallah or the Bazar, where Mewa Din or Toti accused were living.
6. Mst. Khursheed (P. W. 3) stated that she had rented out a portion of her house to Mewa Din where he used to live with Mst. Wazeeran, his wife and Mst. Almas (P. W. 1). They lived there for one year. Fateh Ali and Nathey Khan P. Ws., used to give training to Mst. Almas in singing. Mst. Almas never complained to her that she was living there without her consent. The evidence of this witness does not show at all that Mst. Almas was indulging in prostitution or she was kept in wrongful confinement.
7. Fateh Ali (P. W. 4) and Nathey Khan (P. W. 5) stated that they gave training to Mst. Almas in singing and dancing while she was living with Mewa Din. They categorically stated that she never complained to them that she was forcibly detained there or that she was made to indulge in prostitution.
8. A reference to the evidence of the prosecution witnesses would show that so far as the incident relating to Mardan is concerned, Mst. Almas (P. W. 1) is the only witness to support it. For the allegations pertaining to her stay at Lahore, the prosecution has relied on her evidence and on the statement of Mst. Khursheed Begum (P. W. 3) Fateh Ali (P. W. 4) and Nathey Khan (P. W. 5).
9. I am not impressed by the evidence of Almas (P. W. 1) that she had been wrongfully confined in the house of Mewa Din and thereafter in the house of Toti in Mardan. If it had been so, I see no reason why her father Ayub and her uncle Mahbub Khan should have taken the matter lying by and taken no steps whatsoever to trace her. In all likelihood, they should have made a search for her and on their failure to trace her, they should have at least made a report to the police. Moreover, if there had been some truth in the assertion that her father was doing business in Mardan, Mewa Din and her brother Toti, would never have run the risk that was involved in keeping Mst. Almas at that place. One could hardly expect to keep such a strict supervision on a grown‑up person, though a female, as to obviate completely the possibility of her escaping. Under the circumstances they would have removed her to a place from where there could be less danger of her escaping and reaching her father. The statement of Mst. Almas to the effect that she was kept in wrongful confinement in Mardan under the circum stances does not inspire any confidence. She admitted in her cross‑examination after the charge, that she was given training in singing by Mewa Din in Mardan also. The appellants could not take such a daring step at a place where her father was running a shop and it is an allegation which cannot be accepted to be correct, especially when Mst. Almas claimed to be unwilling party and alleged that she was kept in wrongful confinement.
10. There are other circumstances also which belie her statement. Notwithstanding the fact that she gave the details about her father and her whereabouts before the incident, the police took no steps to have these facts verified. She was not taken to Mardan to point out the shop of her father, the house in which she was confined and the place where she had been living in Takhtbai. If there had been some truth in her statement, the police must have taken steps to collect this evidence which would have gone a long way in establishing the case against the accused. The failure of the police to proceed accordingly raises a strong presumption against the truth of these allegations. It is also to be noted that although she made her statement on the 19th of December 1961, and was examined in Court on the 24th of March 1962, she did not go to her father at Mardan nor did he come to meet her. Mardan is a small place and I cannot imagine that she remained there in wrongful confinement for a year and had no opportunity to escape. She cannot give the name or the particulars of the locality or the Mohallah where the house of Mewa Din or Toti is situated. She alleged that she had been raising alarm during her stay in Mardan, but surprisingly enough no person took notice of it, for the whole year. She was brought from Mardan to Lahore and according to her version she raised hue and cry during this journey also. It is not possible to believe that nobody should have been attracted to her outcries at crowded places like the two railway stations. Her statement, therefore, suffers from infirmities which are incon sistent with the ordinary course of human conduct. Her failure to take any steps to escape or to make a report to police during the long period she was kept .in wrongful confinement, when numerous occasions to take these steps might have arisen, leads one to the conclusion that she was a willing party to the whole affair. Her conduct, therefore, belies her statement. In my opinion the appellants did not exercise any control over the girl and they did not prevent her from communicating with other persons, and did not keep her in wrongful confinement. As far as I can see, she was free to leave the accused, whenever she wanted to.
11. Whereas she has made a specific allegation of con finement in Mardan, there is no such allegation in respect of her stay at Lahore with Mewa Din and his wife, Mst. Wazeeran. Here, of her own admission she had been coming in contact with the people. The police had also been visiting her apartment. Mst. Khursheed (P. W. 3), Fateh Ali (P. W. 4) and Nathey Khan (P. W. 5) have also categorically stated that she was in no way restricted in her movements nor had she ever complained to anyone that, she was living against her consent. I am, therefore, of the opinion that the evidence on the record does not, in any way, justify that Mst. Almas had been wrongfully confined either at Mardan or at Lahore. The offence under section 344, P. P. C., therefore, is not proved against the appellants.
12. In order to establish an offence under section 373, P. P. C., it had to be proved that the accused obtained possession of Mst. Almas, when she was under eighteen years of age and they did so knowing it to be likely that she would be employed or used for purpose of prostitution, illicit intercourse or for any other unlawful and immoral purpose.
13. It was contended by learned counsel for the appellants that according to prosecution case itself, the accused did not obtain the possession of Mst. Almas from any third person and that it was essential for an offence under section 373, P. P. C. that the obtaining of the possession of the minor should be from a third person. It was, therefore, urged that the conviction was wrong in law and no case under section 373, P. P. C. had been proved. Reliance was placed on Jatindra Mohan Das v, Emperor (A I R 1937 Cal. 250). It was held in that case that sections 372 and 373 I. P. C. were co‑relevant of each other and that the phrase "otherwise obtains possession" in section 373 corresponds to "otherwise disposes of" in section 372, I. P. C. and is ejusdem generis with "buying" and "hiring". He also cites Emperor v. Mulayalu (47 I C 865) and Queen‑Empress v. Sukker Raur (I L R (894) 21 Cal. 1947). This was also the view which prevailed with the full Bench of the Madras High Court in Dowlath Bebi v. Sheikh Ali ((1870) 5 M H C R 473), That was a case in which the minor girl had been taken by the accused to an empty house and he had sexual intercourse with her. The Court held that the act of the accused did not amount to obtaining possession of the minor. It was, however, held that to bring a case under section 373, possession must be obtained by a third party. I cannot accept this view. Such construction is neither implied nor possible. There seems no justification to add the words "from a third party" in section 373, P. P. C. and a limitation of this kind cannot be read into the section. This question also came up for decision in Emperor v. Shamsunder Bhai (A I R 1921 Bom. 323) where it was held as follows :,
"I am of opinion that it is not requisite for the purpose of section 373, I. P. C. that the possession of the minor should be obtained from a third person. It is enough, if it is established that the accused in fact obtained possession of the minor with intent that the minor shall be used for the purpose of prostitution."
This view was followed in Bhagchand v. Emperor (A I R 1934 Dom. 200) where it was urged that in construing section 373, one should refer to the preceding section and that the obtaining of possession dealt with in section 373, I. P. C., was by means of the disposal dealt with in section 372, I. P. C., and, therefore, involved that the possession must be obtained through the disposal made by a third party, but this contention was repelled by Beaumont C. J., who held as follows :‑
"I am not prepared to accept that view. No doubt in construing section 373, we must have regard to the preceding section, but that does not justify a departure from the plain words of section 373. I can see no reason why a person who steals a minor girl under 18 years of age with the requisite intention should not be held to have obtained possession of such minor within section 373."
The matter again came up for consideration. In Emperor v, Gordhandas Kalidas (A I R 1942 Bom 24) Beaumont, C. J. affirmed this view and by dissenting from A I R 1937 Cal. 250 observed‑
"The view taken by the Calcutta High Court imposes an entirely unjustifiable and most undesirable limitation upon the plain words of section 373."
14. I am, therefore, of the opinion that a person within the meaning of section 373, Pakistan Penal Code, obviously can "obtain possession of a minor without the intervention of a third party". To hold otherwise would defeat the whole purpose of the section which is to prevent the prostitution of minor girls. There is, therefore, no force in this contention of the learned counsel for the appellants.
15. Before, however, an offence under section 373, P. P. C., can be made out against accused persons, it is necessary for the prosecution to prove that the accused obtained the possession of the minor with the intention or knowledge that she could be compelled or used for purposes of prostitution etc. The evidence of intention or knowledge must be that the receiver was "at the time of receipt" compelled by the desire of employing or using her as a prostitute. It is an intention as to the future course of conduct which constitutes the offence. Mere act of possession does not prove this. In a case where the person obtaining the possession was a prostitute or an occupier or manager of a brothel then the presumption of such intent would arise. The intention in other cases has to be inferred from the circumstances and evidence brought on the record. Mst. Almas (P. W. 1) herself deposes that she remained with the accused for more than two years. She has, however, not alleged that she was ever asked by the accused to indulge in prostitution. She was a grown‑up girl, and according to her own admission, she had attained the age of puberty before she came under the control of the accused. If they had any such intention, they would have put it into practice and used her as a prostitute. All that they are alleged to have done is to teach singing and dancing to her. This cannot be connected with prostitution and I do not agree with the learned trial Magistrate when he says that this should be deemed to be prostitution. The intention is not proved. I cannot, therefore, under these circumstances, accept the view of the learned trial Magistrate that the accused obtained posses sion of Mst. Almas within the meaning of section 373, P. P. C.
16. Another important question which arises for considera tion is if the prosecution has proved that Mst. Almas was under the age of eighteen years when the accused obtained her possession. The learned Additional District Magistrate in convicting the accused on a charge under section 373, P. P. C. has relied on the statement of Mst. Almas wherein she had stated that she was twenty years of age when she appeared as a witness and applying a reverse process held that since she came in the possession of the accused about three years earlier, she was seventeen years of age at that time. The learned Additional District Magistrate also observed that she appeared to be of that age. The prosecution has not produced any evidence of her age. Her father could be the best witness, but, as already observed, police neither examined him during the course of investigation nor produced him in the Court. There was no evidence of registration of birth. No doctor had been produced who could depose as to her age on scientific anylysis. There is only the statement of the girl herself and that too was not made on oath. She stated her age while giving the particulars of her identity etc., before she undertook to state on solemn affirmation. No question on this point was put to her in her examination‑in‑chief.
It means that there is no legal evidence of her age on the record. Even if she had stated her age in evidence, her bare statement without corroboration by some other cogent and reliable evidence could not have been considered sufficient for holding that she was less than 18 years of age when the alleged incident took place in Mardan. As to learned Additional District Magistrate's personal observation about the age of the girl, it can never be considered as a safe guide. The learned Additional District Magistrate was, therefore, not legally justified in holding that she was below eighteen years at the time referred to. In Bhdla Sardar v. Emperor (A I R 1932 Cal, 417) it was held:‑
"It seems to me that upon the question as to the age of the girl which is a material factor of the charge under section 373, I. P. C., there has been a misdirection. On this charge it is incumbent on the prosecution to prove beyond a shadow of doubt that the girl is under the age of 18 years. The evidence, however, is vague and widely discrepant. The learned Judge points out to the Jury that the mother of the girl who was a competent witness had not been examined, that there was no evidence of registration of birth that the evidence of the girl herself and of the husband did not appear to him to be worthy of acceptance and that the doctor in his deposition gave a very vague opinion. There was, therefore, no reliable evidence at all for the Jury to consider. The girl and her husband had mentioned widely different ages at different times. Then the learned Judge told the Jury that they might appeal to their own experience and apply that experience to the impression that they had formed on seeing the girl for three days. Such an impres sion, however, would never be a sure guide, but the learned Judge gave to the Jury no caution. Had he done so, the Jury would have seen that on the question of age the prosecution evidence left the matter in doubt. This is sufficient to show that there has been a material misdirection. The conviction of the appellants, therefore, cannot be sustained."
17. That being so, I cannot uphold the finding of the learned Additional District Magistrate that the girl had been proved to be below eighteen years of age at the time when the accused are alleged to have obtained her possession. I fail to under stand as to how the learned Additional District Magis trate could observe that the accused should have summoned the doctor to depose about the age of the girl. The onus of proof is always on the prosecution and never shifts in such cases, but if the prosecution did not produce the evidence which it could, the accused can take advantage of this failure. The age of the girl in the instant case is not proved to be below eighteen years. For a charge under section 373 P. P. C. it is incumbent upon the prosecution to prove beyond a shadow of doubt that the girl was below the age of eighteen years. The conviction oil the appellants on this score also merits to be set aside.
18. The trial also vitiates for misjoinder of persons. The accusation against the appellant shows that there were four different transactions, for which they were tried, namely
(a) that the accused Mewa Din and Mst. Wazeeran obtained possession of Mst. Almas in Mardan, when she entered their house to take water and they locked her in. They took her to the house of Toti in Mardan, where she was kept in wrongful confinement for a period of one year ;
(b) that she was brought by Mewa Din and Mst. Wazeeran to Lahore and was kept in the house of Mst. Khursheed P. W. where she got training in singing and dancing and also gave performances in this art ;
(c) that Sikandar obtained possession of Mst. Almas in Lahore and made her indulge in prostitution ; and
(d) that Sikandar took her to Lyallpur where she was made to practise prostitution at his instance and subsequently at the instance of Mst. Husan Pari.
19. Under section 233 of the Criminal Procedure Code, there should be a separate charge and a separate trial for each offence unless these cases fall under sections 234, 235, 236 and 239 of that Code. Section 239,. Criminal Procedure Code, deals with a joint trial of more than one person and clauses (a) and (d) being relevant are reproduced :‑
"The following persons may be charged and tried together, namely,
(a) persons accused of the same offence committed in the course of the same transaction ;
(d) persons accused of different offences committed in the course of the same transaction."
It, is clear from the accusation that neither clause (a) nor clause (d) of section 239, Criminal Procedure Code, is attracted to the case. Here the persons were accused of different offences which were not committed in the course of the same transaction. The accusation in the challan did not allege that all these offences were committed in the course of the same transaction. In order, to determine whether different offences arise out of the same transaction, one has to look to the proximity of time, proximity of place and the community of purpose. None of these essential ingredients are present in this case. The reference to accusations by itself makes it clear that for an offence which is alleged to have been committed in Mardan and that stated to have been committed in Lyallpur, there is neither the proximity of time nor of the place. The continuity of action is completely lacking and there is not even a remote allegation as to the community of purpose. The joint trial on account of all these transactions was, therefore, not permitted by law. It was, however, contended by the learned counsel for the State that the accused have not been prejudiced and the defect is, therefore, curable. The contention is without force. It was held in Babu Lal Chakhani v. The King‑Emperor (A I R 1938 P C 113) that an infringement of section 239 (d) would, if made out, constitute an illegality as distinguished from an irregularity and that the conviction would require to be quashed. There is a consistent view in a long string of reported decisions of almost all the High Courts that a trial held in contravention of the provisions of section 233, Criminal Procedure Code, and not covered by section 239 (d) is illegal. Kayani, J. in Ghulam Muhammad v. Crown (P L D 1951 Lah. 11) relying on Subrahmania Ayar v. The King Emperor (28 I A 257) and on A I R 1938 P C 130, held that the infringement of sec tion 239(d) would if made out, constitute an illegality as disting uished from an irregularity. This was the view taken also in Nur Din v. The Crown (P L D 1952 Lah. 185). In Qadir Dad v. Crown (P L D 1956 F C 129) their Lordships of the Federal Court held that section 233 prohibits a joint trial unless 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 con travened. If it has been contravened 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. The joint trial on account of all these transactions was, therefore, not permitted by law. The trial offended against the provisions of the Code of Criminal Procedure. The conviction of the appellant, therefore, cannot be sustained, but having regard to the evidence in the case which I have discussed above, I do not think it necessary to send back the case for re‑trial.
20. An objection to the trial of the accused persons at Lyallpur was also raised. It is contended that Mewa Din and Mst. Wazeeran could be tried only either at Mardan or at Lahore. Toti could not be tried at any other place except Mardan. Though this plea of want of jurisdiction was not taken in the trial Court, there is no bar to its being taken for the first time in the High Court. Section 531, Criminal Procedure Code, indicates that no proceeding in a wrong place shall be set aside unless it appeared that such error has in fact occasioned a failure of justice. The trial in a wrong district is not a fatal defect. I am satisfied that the proceedings in Lyallpur have in no way prejudiced the appellants. I am, therefore, not inclined to consider this defect as fatal to the proceedings.
21. The appeal is accepted and the appellants are acquitted of the charges under sections 373 and 344, Pakistan Penal Code, and are directed to be set at liberty if they are not wanted in some other case. The fines, if paid, shall be refunded.
K. B. A. Appeal accepted.
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