Ahtisham Khursheed Vs The Sate through SHO Dassu etc

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JUDGMENT SHEET

PESHAItrAR HIGH COURT

ABBOTTABAD BENCH

(ludicial Department) W.P. No .836-N2023

Ahtisham Khursheed.

(Petitioner/s)

VS

The State through SHO Dassu & others.

(Respondent/s)

Present: Haibat Khan, Advocate, for petitioner Sardar Basharat, learned Additional Advocate General, for respondents.

Respondent No. 2 is absent despite semice.

Date of hearingz 18.04.2024

JUDGMENT

IJAZKHAN.J. - Through the instant

writ petition, the petitioner has prayed as under' "It is, therefore, most humbly prayed that on acceptance of the instant constitutional petition of trawfer of criminal case pending in Court of Senior Civil Judge/Judicial magistrate at Upper Kohistan on the basis of FIR No. 61/23 dated 22'03'2023 & under section 489-F PPC Police Station Dassu District Upper Kohistan may graciously ordered to be transferred in the Court of Judicial Magistrate-I' Mansehra where criminal case FIR No' 195 dated 15.02.2023 registered under Section 489-F PPC at :::{t{EB Police Station City Mansehra is pending' Any other Tahir Saleem (S.8.) Hon'ble Mr. Justic€ Muhammad Uaz Khan

relief which this Honourable Court deems fit be granted in the circumstances ofthe case. " Precisely the facts of the case as per the contents of this petition are that the petitioner was charged and arrested in case FIR No. 195 dated 15.02.2023 under Section 489-F PPC at Police Station City, Mansehra and then after I Yz month another FIR No. 61 dated 22.03.2022 was registered under same Section of law at Police Station Dassu, Upper Kohistan and both these FIRs were registered on the basis of same documents, therefore, the petitioner has now approached to this Court for issuing direction for joint trialljoint charge in both these FIRs at District Mansehra on the ground that FIR No. 195 dated 15.02.2023 was registered prior in time.

9.Arguments of leamed counsel for

petitioner as well as learned AAG were heard in considerable length and record perused with their able assistance.

t It is the case ofpetitioner that he has been .6) charged by the complainant namely Abdul Hakeem in case FIR No. 195 registered on 15.02.2023 at Police Station City District Mansehra under Section 489-F PPC and simultaneously he has also been charged in case FIR No. 61 registered on 22.03.2023 for the same Tahir Sale€m (S.8.) Hon'ble Mr. Justice Mu hammad ljaz Khan

J

kind of offence i.e. 489-F PPC at Police Station Dassu District Upper Kohistan by another complainant namely Sher Alam. It is the further stance of the petitioner that the contents of both these FIRs show that during some business transaction the petitioner had handed over two different cheques to both the complainants one after another in presence of same witresses namely Fazal-ur-Rehman and Jan Alam, therefore, since the petitioner has been charged for the same offence in two different FIRs bearing Nos. 195 and 61 and both these FIRs have been registered within a period of one month, therefore, in view of Section 234 Cr.P.C he has to be made subject of a joint trial in both these FIRs.

5.In order to address the prayer of the petitioner, it would be relevant to mention here that the joinder of charges is regulated by Section 233 to Section 240 Cr.P.C out of them Section 234 lays down that when a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with, and tried at one trial for, any number ofthem not exceeding three. Section 235 lays Tahir Sal€em (S.8.) Hon'ble Mr. Justice Muh ammad tjaz Khan

down that if, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence. Section 236 lays down t}lat if a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences and any number of such charges may be tried at once; or he may be charged in the altemative with having committed some one of the said offences. Section 239 relates to the joinder of persons' Out ofthem section 234 ard Section 239-Abeng relevant for the present controversy are reproduced below

234.Three offences of same kind within year may be charged together:

(1)When a person is accused of more offences than one of the same kind committed within the space of twelve months from the Jirst to the last of such offences, whether in respect of the same person or not, he may be charged with, and tried at one trial for, ary number of them not exceeding three.

(2)Offences are of the same kind when they are punishable 'under with the sdme drnount of punishment the same section of the Pakistan Penal Code ^2 - special orthat, or ofany Provided local law:

for the purpose ofj79this section, an offence punishable under Section of the Pakistan Penal Code shall be deemed to be an offence of the same kind as an offence punishable inder Section 380 of the said Code, and that an offince punishable under dny section of, -the iiakistan Penal Code, or of any special or local law, shall be deemed to be an offince of the same kind as Tahir Sale€m (s.B.) Hon'ble Mr. Justice MuhEmmad ljaz Khan

an attempt to commit such offence, 'when such dn attempl is dn offence.

239.llhat persons may be charged jointly: The following persons may be charged and tried together, namely;

(a)persons erccused of the same offence committed, in the course of the same trdnsaction (b) persons accused of an offence and persons accused of abetment, or of an dttempt to cotnmit such offence;

(c)persons accused of more than one offence of the same kind, within the meaning of Section 234 committed by them jointly within the period of twelve months;

(d)persons accused of dffirent offinces committed in the course of the same transaction @ persons accused of an offence which includes thefi, extortion, or crimtnal misappropriation, and persons accused of receiving, or retaining, or assisting in the disposal or concealment of property possession of which is alleged to have been. transferred by any such offence committed by the first-named persons, or of abetment of or attempting to commit any such last- named offence:

(f)persons accused of offinces under Sections 4tl and 414 of the Pakistan Penal Code or either of those sections in respect of stolen property the possession of which has been transferred by one offence; and @ persons accused of any offence under Chapter XII of the Pakistan Penal Code relating to counterfeit coin, and persons accused of any other offence under the said Chapter relating to the sdme coin, or of abetment of or attempting to cotnmit any such offence. and the provisions contained in the former part of this Chapter shall, so far as may be, apply to all such charges.

The plain reading of aforesaid Section of law would show that there are three essential ingredients to attract the provision of Section 234 CI.P.C i.e. firstly that the offences must be of the same kind, secondly, the offences must have been committed within the space of twelve months arld thirdly that more than three offences could not be joined. Similarly, Section Taiir Saleem (S,B.) Hon'ble Mr. Justice Muhammad ljaz Khan

239 Cr.P.C which deals with persons who may be charged jointly and thus as per the aforesaid mandate of law persons who are accused of the same offence committed in the courses of same transaction could be made subject of a single trial.

6.In view of the above mandate of law what could be gathered from that it is a general rule that for every offence a separate charge has to be framed and separate trial has to be held, however, Section 234 Cr.P.C and 239 Cr.P.C are exception to the said rule and thus both these provisions of the law are not mandatory in stricto sensu and under the established jurisprudence ifthe Court finds that separate charge or sepamte trial would not prejudice tlle accused then it could not order for the joint charge as well as joint trial and the Court may go for the separate charge and separate trial, however, if there is element of prejudice which may cause to the accused in separate trial then a joint charge may be framed and a joint trial may be q ,v conducted.

7.In view of the above if the aforesaid yardstick is applied to the case of present petitioner then of-course a same offence (i'e. Section 489-F PPC) has allegedly been committed by the petitioner at two Tahi Saleem (s.B.) Hon'ble M.. ,ustice Muha$mad Ijaz Khan

different places rather at two different districts i.e.

Mansehra & Kohistan. Similarly, both the offences were not committed in the same transaction which is a sine qua non for a joinder of charge and a joint trial rather the present petitioner had issued one cheque to the Abdul Hakeem who is complainant of FIR No. 195 dated 15.02.2023 and another checque to Sher Alam, who is complainant of FIR No' 6l dated22.03.2023, therefore, the same could not be termed and treated as a same transaction and thus the petitioner could not be made subject to a joint triaUjoint charge as even otherwise the issuance of any order for joinder of the charge would disturb the whole mechanism as provided for the investigation and tial of an offence under the Cr.P.C, therefore, the desire writ could not be issued in favour ofthe petitioner.

!. In view of the above discussion and exposition of law the instant writ petition being bereft of any merit is dismissed.

Announced

TUDGE

Tahir Saleem (S.8.) Hon'blc Mr. Justi@ Muhammad lj.z Khan