Joinder of charges under section 234 crpc case law.
**Mst. Saira Fatima بمقابلہ The State** کیس میں ہائی کورٹ نے فیصلہ کیا کہ چیکوں کے دھوکہ دہی کے مقدمات کو سیکشن 234 Cr.P.C کے تحت جوڑنے کا اختیار نچلی عدالتوں کی صوابدید پر ہے، اور درخواست کو مسترد کر دیا۔
**Mst. Saira Fatima بمقابلہ The State اور دیگر** کیس میں درخواست گزار نے سیکشن 234 Cr.P.C کے تحت متعدد مجرمانہ مقدمات کے الزامات کو جوڑنے کی درخواست کی۔ درخواست گزار نے موقف اپنایا کہ چونکہ تمام مقدمات میں دھوکہ دہی کے چیکوں کی بات ہے جو ایک سال کے اندر کیے گئے، اس لیے ان کو ایک ہی مقدمے میں یکجا کیا جائے۔ ٹرائل کورٹ اور ریویزنل کورٹ نے درخواست کو مسترد کر دیا۔
فیصلے کے اہم نکات درج ذیل ہیں:
1. **الزامات کا جوڑنا**: سیکشن 234 Cr.P.C کے تحت ایک ہی نوعیت کے جرائم کے لیے الزامات کو جوڑنے کی اجازت ہے لیکن یہ لازم نہیں ہے۔ یہ عدالت کی صوابدید پر ہے، نہ کہ حق۔
2. **عدالتی صوابدید**: سیکشن 234 Cr.P.C کے تحت الزامات کو جوڑنے کا اختیار عدالت کے پاس ہے، اور یہ فیصلہ عدالت کے یہ دیکھنے پر منحصر ہے کہ کیا الگ الگ مقدمات سے ملزم کو نقصان پہنچے گا یا کوئی قانونی مسئلہ پیدا ہو گا۔
3. **موجودہ شواہد**: مقدمات میں مختلف گواہ تھے اور مقدمات مختلف مدعیوں کی طرف سے درج کروائے گئے تھے، جو جوڑنے کے فیصلے پر اثرانداز ہوئے۔
4. **ہائی کورٹ کا کردار**: ہائی کورٹ نے نچلی عدالتوں کے فیصلوں کو برقرار رکھا، اور بتایا کہ الزامات کا جوڑنا ایک طریقہ کار ہے جو ضروری نہیں۔ ہائی کورٹ نے کہا کہ سیکشن 561-A Cr.P.C کے تحت اختیار تب ہی استعمال کیا جا سکتا ہے جب نچلی عدالتوں کے فیصلے میں کوئی بدسلوکی یا انصاف کے تقاضوں کے منافی چیز سامنے آئے۔
نتیجتاً، ہائی کورٹ نے نچلی عدالتوں کے فیصلے میں مداخلت نہ کرنے کا فیصلہ کیا اور درخواست کو مسترد کر دیا۔
2024 P Cr. L J 1289
Mst. Saira Fatima Versus The State and 3 others-
Crl. Misc. No. 31686 of 2023
Application for joinder of charges---Petitioner facing trials in more than one cases of the same nature, registered within a span of 12 months sought one trial by way of joinder of charges in all the cases---Application was declined by Trial Court---Revision was also dismissed---Validity---Joinder of charges as provided in S. 234, Cr.P.C, is procedural as well as directory and not mandatory---Joinder of charges could not be sought as a right either by the accused or the prosecution---Accused can not insist for joinder of charges unless it is shown that separate charges in different trials either will prejudice his/her case or will amount to an illegality including double jeopardy---Three prosecution witnesses had been recorded in one of the cases and a direction had already been issued by the Director General, Directorate of District Judiciary, to decide the case within two months---All the criminal cases, having different sets of witnesses i.e. the proposed evidence, had been lodged by different persons/complainants---Courts below had passed the impugned orders while taking into consideration the law on the point in its true perspective and had validly refused to exercise the discretion in favour of the petitioner, which called for no interference by the High Court---
Order
---The petitioner, who is an accused of the charge that she without making arrangements with the bank ensuring that the cheques on its presentation, shall be honoured, had dishonestly issued cheques fully detailed in the FIR, for fulfilling her financial obligation to the complainant, when presented before the concerned bank, stood dishonoured, in the cases mentioned blow in paragraph No.2 of this order, by means of instant petition under Section 561-A Cr.P.C. has challenged the vires of order dated 06.03.2023 passed by learned Judicial Magistrate Section-30, Model Town, Lahore whereby her application under section 234 Cr.P.C. for joinder of charges was dismissed as well as the order dated 03.05.2023 passed by learned Addl. Sessions Judge, Lahore whereby her revision has also been dismissed.
2. Facts necessary for disposal of instant petition are that the petitioner being an accused in the following o cases is facing the trial:-
i) FIR No.1253 dated 03.12.2020 under section 489-F, P.P.C, P.S. Gulberg, Lahore.
ii) FIR No.1266 dated 05.12.2020 under section 489-F, P.P.C, P.S. Gulberg, Lahore. -
iii) FIR No.2436 dated 25.11.2020 under section 489-F, P.P.C, P.S. Baghbanpura, Lahore.
The petitioner's application under section 234 Cr.P.C. requesting that since the petitioner is facing the trial in more than one cases of the same nature, registered within a span of 12 months from the first to the last, therefore, instead of separate trials, she may be tried by way of joinder of charges in all the aforesaid cases, at one trial, was dismissed vide order dated 06.03.2023. She filed criminal revision petition which also met the same fate vide order dated 03.05.2023. Hence, instant petition.
3. Learned counsel for the petitioner mainly argued that since all cases relate to dishonouring of cheques allegedly issued by the petitioner in the transaction connected to Bahar Trading Company, therefore, following the underlying spirit of section 234 Cr.P.C., all the cases may be ordered to be tried after joinder of charges by means of one trial by the single learned court, thus craved for acceptance of her application by setting aside the impugned order.
4. On the other hand, learned Prosecutor while relying upon case law titled Mian Muhammad Nawaz Sharif v. The State through Chairman, National Accountability Bureau, Islamabad and another (2018 PCr.LJ Islamabad 521) has defended the impugned orders and thus has prayed for dismissal of instant petitioner.
5. Arguments heard. Record perused.
6. In order to appreciate the contention of learned counsel for the petitioner, it will be beneficial to reproduce sections 233 and 234 Cr.P.C. hereunder:-
233. Separate charges for distinct offences. For every distinct offence of which any person is accused there shall be separate charge, and every such charge shall be tried separately, except in the case mentioned in sections 234, 235, 236 and 239.
234. Three offences of same kind within one year may be charged together. (I) 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 charred with, and tried at one trial for, and number of them not exceeding three. (2). Offences are of same kind when they are punishable with the same amount of punishment under the same action of the Pakistan Penal Code or of any special or local law.
Provided that, for the purpose of this section, an offence punishable under section 379 of the Pakistan Penal Code shall be deemed to be an offence of same kind as an offence punishable under section 380 of the said Code, and that an offence punishable under any section of Pakistan Penal Code or of any special or local law shall be deemed to be an offence of the same kind as an attempt to commit such offence, when such an attempt is an offence.
The phraseology of section 233 Cr.P.C. is quite vivid that except the cases mentioned in sections 234, 235, 236 and 239, for every offence of which any person is accused of there shall be a separate charge and every such charge shall be tried separately. Section 234 of Cr.P.C., states that when a person is accused of more offences than one of the same kind committed within a span 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, however, the number of such cases should not be exceeding three cases. It is evident from use of the word 'may be' that section 234 of Cr.P.C. is not directory in its nature rather the same is discretionary. Section 234 is merely permissive and not datory and does not in any way deprive the Court of ordering a separate trial. In case titled The State v. Mirza Azam Beg, P.C.S and another (PLD 1964 (W. P.) Lahore 339) this Court has held that section 234 Cr.P.C. is the first exception to the general rule of one trial for each distinct offencd. The principle underlying this section is that the offences of the same kind in criminal Court within a space of short period, namely, twelve months from the first to the last of such offences, may be tried together. This section lays down three limitations. They are, (1) that the offences must be of the same kind, (2) that they must have been committed within the space of one year, and (3) that more than, three offences should not be joined in the same trial yet it has been left to the discretion of the Court whether in facts and circumstances of commission of offences, framing of a single charge is proper or not. Therefore, the accused under this provision cannot insist for joinder of charges until and unless it is shown that the separate trials or charges shall prejudice his case to such an extent that the same would amount to an illegality. In case titled "Shahadat Khan and another v. Home Secretary to the Government of West Pakistan and others" (PLD 1969 SC 158), the Apex Court has held that under the Code of Criminal Procedure the rule laid down in section 233 Cr.P.C is that for every distinct offence of which any person accused of, there shall be a separate charge and every such charge shall be tried separately except in the cases mentioned in sections 234, 235, 236 and 239, Cr.P.C. The general rule is clear enough. It may be observed that if the court finds no prejudice being caused to the accused or the charges are distinct and do not come stricto sensu within the parameters of section 239, Cr.P.C. read with section 234, Cr.P.C., the court must desist from the joinder of charges. It cannot be said that if several accused persons charged for committing the same offence in the course of the same transaction, are tried separately then the trial will, irrespective of any question of prejudice, be illegal. It may be reiterated that the directions in regard to joinder of three charges stated under section 234 Cr.P.C are not mandatory in the sense that it is not obligatory on the Magistrate not to try the offences separately, but it is entirely within the discretion of the Magistrate whether or not to resort to section 234 Cr.P.C. In case titled Muhammad Sharif and others v. The State and others (2001 YLR 896) the Hon'ble Sindh High Court held that the joinder of charges cannot be made as a matter of routine. If Court finds that no prejudice would be caused to the accused or the charges are distinct and do not come stricto sensu within the parameters of section 239, Cr.P.C. read with section 234, Cr.P.C. the Court must desist from the joinder of charges. It may further be stated that in case titled Eslam Wazir v. Nek Dar Khan and another (2022 PCr.LJ 249) the Hon'ble Peshawar High Court has held that Section 234, Cr.P.C. is discretionary in nature, which is evident from use of the word 'may be', and therefore same has been left to the discretion of the Court, for the reason that the Court shall see whether facts and circumstances of offences allow fuming of a single charge. In case titled Ahmad Khan v. Commissioner, Rawalpindi Division and another (PLD 1965 (W. P.) Peshawar 65) the Hon'ble Peshawar High Court has held that this brings me to the argument which was tried to be raised that it was cardinal principle of criminal jurisprudence that all the charges committed in the same transaction should be tried together with a view to preventing the accused from running gamut of different trials. The argument is not only erroneous but opposed to the provisions of the Cr.P.C., namely, sections 233 to 240, which deal with joinder of charges. These sections contemplate that there should be a charge for each distinct offence and that it should be formulated with precision; that the precise charge framed is to be tried, and tried separately, as contemplated by section 233, except in cases mentioned in sections 234 to 236 and section 239 of Cr.P.C. It further held that sections 234 to 239 Cr.P.C are merely permissive and not mandatory, i.e. it is for the prosecution to try the accused on different offences in one trial as provided by those sections, but in case the prosecution decides to split the charges and try him separately on those charges the accused cannot insist on joinder of charges. In case titled Mian Muhammad Nawaz Sharif v. The State through Chairman, National Accountability) Bureau, Islamabad and another (2018 PCr.LJ 521) the Hon'ble Islamabad High Court has held that joinder of charges as provided in section 234, Cr.P.C. is procedural as well as directory and not mandatory. Joinder of charges cannot be sought as of its right either by the accused or the prosecution. Thus the accused cannot insist for joinder of charges unless it can be shown that separate charges in different trials either shall prejudice his case or would amount to an illegality including double jeopardy.
7. In one of the cases i.e. FIR No.2436/20, three prosecution witnesses have been recorded and a direction in this case had already been issued by the learned Director General, Directorate of District Judiciary to decide the case within two months. All the criminal cases, having different sets of witnesses i.e. the proposed evidence, had been lodged by different persons/complainants. In the circumstances, since both the courts below have passed the impugned orders while taking into consideration, the law on the point as discussed above in its true perspective and have validly refused to exercise their discretion in favour of the petitioner, which call for no interference by this Court. Inherent power of High Court under Section 561-A Cr.P.C would be exercised only where such orders are necessary to give effect to any order under Criminal Procedure Code or to prevent abuse of process of any Court or otherwise to secure the ends of justice. The powers under Section 561-A Cr.P.C are not exercised in substitution of the powers under Section 439 Code of Criminal Procedure Code as the scope of both the provisions is quite distinct. Learned counsel for the petitioner except reiterating that the petitioner being lady is facing the rigors of the trial before different courts, therefore, her request may be acceded to, has failed to bring his case within the parameters requiring exercise of power under Section 561-A Cr.P.C. or that the resultant effect of order impugned, would be source of prejudice to the right of fair trial of' accused/petitioner, guaranteed under Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973, hence instant petition stands dismissed.
Comments
Post a Comment