Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: CHHOTA ABU VS Respondent: THE STATE
P L D 1960 Dacca 918
P L D 1960 Dacca 918
Before Ispahani, C. J., and Sattar, J
CHHOTA ABU‑Appellant
versus
THE STATE‑Respondent
Criminal Appeal No. 334 of 1959, decided on 12th November 1959.
Criminal Procedure Code (V of 1893), 5.239‑Offences, separate and unconnected, committed by two accused‑Joint trial Illegal.
Where two different accused were charged separately, one under section 302 and the other under section 2ul of the Penal Code, 1860 and both were tried together although the facts of the case showed that the offences alleged to have been committed by the two accused were separate and unconnected with each other, it was held, that they could not be tried together in the same trial and the joint trial was therefore bad in law. It was further held that it made no difference that the accused charged under section 201 of the Code had been acquitted.
The State v. Abdur Rahim Sikdar and Abdul Jalil Mir and others v. The State P L D 1958 Dacca 257 and Hakim All and others v. The Crown (1954) 6 D L R 171 rel. Abdus Salam Khan for Appellant. K. Hossain for the State.
JUDGMENT
ISPAHANI, C. J.‑This is an appeal by the accused who along with one Badarunnessa was placed on trial before the Sessions Judge, Tippera, and four assessors. The appellant Chhota Abu alias Fariduddin was charged under section 302 of the Pakistan Penal Code as follows:
" That you, on or about the 24th Bhadra, 1365 B. S., i e., on 10‑9‑58, at Guniauk, P. S. Nasirnagar, Tippera, committed murder by intentionally or knowingly causing the death of Wahid Mia . . . . . .".
Accused Badarunnessa was charged under section 201, P. P. C., as follows:
"That you, on or About the 24th Bhadra, 1365 B. S., corresponding to the 10th September 1958, at Guniauk, P. S. Nasirnagar, District Tippera, knowing or having reason to believe that certain offence, to wit murder of Wahed Mia, punishable with death, has been committed, did cause certain evidence of the said offence to disappear . . . . . .".
The assessors unanimously found the appellant guilty under section 302, P. P. C., and the learned Judge accepting that opinion convicted Chhota Abu under that section and sentenced him to transportation for life. Accepting the unanimous opinion of not guilty, he acquitted Badarunnessa under section 201, P. P. C.
2. The learned Advocate appearing on behalf of the appellant has raised a preliminary objection that the joint trial of the appellant and accused Badarunnessa was bad in law and, as such, the appellant had been prejudiced by reason of such a joint trial. His argument is that in the present case, having regard to the facts, the two accused could not be tried jointly in the same trial inasmuch as the offences, if any, alleged to have been committed were unconnected with each other and did not form part of the same transaction. According to the prosecution case, the appellant murdered the deceased Wabed by assaulting him and, before he died, he was removed to his courtyard subsequently and the acquitted accused Badarunnessa removed blood‑stains from the courtyard which on the evidence was not proved against her. The learned Advocate has contended that inasmuch as these two offences are not interconnected and do not form part of the same transaction, the conviction of the appellant and the sentenced passed on him cannot be upheld. In support, he has referred to a decision of this Court, namely, The State v. Abdur Rahim Sikdar and Abdul Jalil Mir and others v. The State (P L D 1958 Dacca 257). In the case, it was held inter alia that although it was not easy to determine as to whether a particular offence or offences do or do not arise in the course of the same transaction the usual criteria, applied for the purpose of determining this question, are to see whether the two offences sought to be jointly tried are connected with each other, either with reference to the point of time or the place of occurrence or with reference to the continuity of the action of the persons accused in respect of such offences or the community of their purpose. In the cited authority, two different accused were charged separately under section 302 and 201, P. P. C.. but were tried together. The learned Advocate appear ing on behalf of the State has referred to the case of Hakim Ali and others v. The Crown ((1954) 6 D L R 171), where it was held that to call upon an accused in the same trial to answer a charge under section 302 for murder and also a charge under section 201, P. P. C., for lodging a false information in respect of that murder is very embarrassing to the accused and must be held to prejudice him. In that case the same accused was charged under sections 302 and 201 which is not so in the present case. This authority, however, goes to support the contention of the learned Advocate for the appellant. The other case cited by the learned Advocate for the State is reported in 7 D L R 572 wherein it was held inter alia that joinder of charges under sections 302/149 and 201 is permissi ble in cases coming under section 236 of the Code of Criminal Procedure. The facts of the case before us show that the offences alleged to have been committed by the two accused are unconnected with each other and are separate offences and, as such, they could not be tried together in the same trial. It makes no difference that Badarunnessa has been acquitted.
3. The result, therefore, is that this appeal is allowed, the conviction and sentence passed on the appellant under section 302, P. P. C., are set aside and it is directed that he be tried according to law to answer a charge under section 302. Pending retrial, he will remain in hajat.
SATTAR, J.‑I agree with my lord the Chief Justice.
K. B. A, Appeal allowed.