Law:

Section:

Criminal Procedure Code (V of 1898),S. 239 (d)---Sameness of transaction to be determined by reference to initial accusation and not to subsequent charge---Five accused concerned in murder and seventeen including these five concerned in causing injuries to prosecution witnesses after termination of first incident---Joint trial not allowed by law. In order to see if the objection on the score of misjoinder is correct one has to see what the accusation was. If the transaction was the same according to the accusation, then section 239 of the Code of Criminal Procedure will have application and a joint trial will be permissible; otherwise section 233 of the Code of Criminal Procedure wilt apply and a joint trial will be against law. Section 239, Cr. P. C. itself makes clear that a charge is something entirely different from an accusation and an accusation precedes a charge. The accusation determines whether or not there can be a joint trial. In this case the trial of the five appellants, who were accused of having jointly killed Gut Sher and causing injuries to Kazam (P. W. 4) and Mst. Fatima (P. W. 5), was allowed by clauses (a) and (d) of section 239 of the Code of Criminal Procedure as was the joint trial of the twelve appellants and the five, acquitted persons, all seventeen of whom had been accused of having jointly caused injuries to some of the prosecution witnesses after the termination of the first incident, but tile offence committed is the two transactions could not be triad together because the accusation did not allege that the two offences were committed in the course of the same transaction or that the five appellants responsible for the murder of Gut Sher had been abetted by the twelve persons who were tried jointly with them for the other offence. Babulal Chaukhani v. King-Emperor A I R 1938 P C 130 and Noor Din v. Crown 1952 Pak. L. R. 163=P L D 1952 Lah. 185 ref. JUDGMENT SHABIR AHMAD, J.---Muhammad Khan, Mehr Khan, Khan Bahadur son of Muhammad Khan, Khan Bahadur, son of Sikandar, Ahmad Khan, Fazal Nur, Dhuman, Zaru, Fazal, Ashraf, Khuda Dad and Painda have presented a joint appeal against the sentences imposed upon them by Mr. Bashir-ud-Din…

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