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بسم هللا الرحمن الرحیمٰ رسولہ الکریم نحمده و نصلی علی

Joinder of Charges

[ss. 233-240 Cr. P. C. 1898] Justice ® Dr. Munir Ahmad Mughal

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Introduction The soul of all justice is fair trial. Criminal justice is no exception to it. The law on the subject of charge is contained in chapter 19 of the Code of Criminal Procedure, 1968 which comprises twenty sections (namely, ss. 221 to 240). Out of them sections 221 to 232 deal with form of charges while sections 233 to 240 deal with joinder of charges. Here we shall

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analyse and discuss the following eight topics, namely,- Separate Charges for distinct

offences.1 Three offences of same kind within

one year may be charged together.2 Trial for more that one offence.3 When it is doubtful what offence has

been committed?4 When a person is charged with one

offence, he can be convicted of another.5

When offence proved included in offence charged.6

What persons may be charged jointly?7

1 Section 233 Cr. P. C. 1898. 2 Section 234 Cr. P. C. 1898. 3 Section 235 Cr. P. C. 1898. 4 Section 236 Cr. P. C. 1898. 5 Section 237 Cr. P. C. 1898. 6 Section 238 Cr. P. C. 1898.

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Withdrawal of remaining charges on conviction on one of several charges.8

In this analysis we shall try to understand and explain the rules on each subject given by the adjective law that is the Cr. P. C. 1898 and also the application of the same by the Courts in Pakistan. This study will thus reflect the theory and practice of near a dozen decades. This study will help understand the readers the role of the law, the bench and the bar in maintaining the rule of law on the criminal side and up keeping the very purpose of all justice which is termed as the fair trial.

The Key Words 7 Section 239 Cr. P. C. 1898. 8 Section 240 Cr. P. C. 1898.

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In this paper the Key words relating to charge are: definition of charge, groundless charge, defect in charge, an irregularity when curable and when not curable, not exceeding three, not reducing in writing, defective, error in framing, omission to frame, same transaction, validity of , withdrawal of, alteration of, failure of justice, failure to prove, joinder of , mis-joinder of , Offences, several offences, shall state the offence, scheduled offences, offences of same kind and offences not of same kind, previous conviction, trial, joint trial, withdrawal of trial, challan case and private complaint , causing prejudice to accused.

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Coherence and sequence in the scheme of the Code of Criminal Procedure, 1898 The Code of the Criminal Procedure, 1898 is so beautifully drafted and arranged that there is graceful sequence in its contents. It is an adjective law9 and provides mechanism to foster the cause of justice and not to hamper the same. Courts are not to sit as silent spectators, if public prosecutor for any reason fails or neglect to discharge his duties, the Court as guardian of law is required to act in furtherance to the cause of justice. Code of Criminal Procedure is provided to promote the cause of justice and

9 Law is classified as substantive law and adjective law. Substantive law is that which defines the rights and obligations of citizens while an adjective law is that which provides machinery whereby and in the manner those are to be got, executed or implemented. This is also called procedural law.

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technicalities and procedural intricacies are never allowed to impede the cause of justice.10 Is the Cr. P. C. 1898 an Exhaustive Code? The Code of Criminal Procedure 1898 professes to deal exclusively with the law of procedure in the minutest details the procedure to be followed in every mater pertaining to general administration of criminal law. The procedure as provided in the Code is not designed to aid prosecution or the accused but to unearth the truth11. 10 2000 MLD 865. 11 The courts are to sift the truth from falsehood. The end of all law is that the truth must prevail. The various human traits and psychology under the impulse of vested interests conceals the truth, the reality and the pure facts which cause disorder and mischief in the society. A law is enacted to prescribe a rule of conduct to be observed in a society whereby peace and order prevails. It is broken for many

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reasons. The breakers are booked and the administration of justice plays its role to mend, set, redress, and compensate etc.etc. This is again done according to law. Before justice complainant and accused are equal and both have their legal rights which are to be respected. Sides are not to be taken by the Court. Impartiality is to be observed throughout the proceedings. Justice is not to be denied to either side. Those who stress law is not morality forget that law is also not immorality. Truth is not related to immorality, rather it is all morality. To keep a thing at its proper place is called justice according to the definition of this term in Islam. Propriety pre-requires correctness and legitimacy. Guidance available in the Holy Qur’an on the subject of fair trial is:

8. O ye who believe! stand out firmly for Allah, As witnesses to fair dealing, and let not the hatred of others to you make you swerve to wrong and depart from justice. Be just: that is next to piety: and fear Allah. For Allah is well-acquainted with all that ye do. [5:8]

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As such on matters in which it declares law12, and on points specially dealt with by it, the Code must be deemed to be exhaustive.13

135. O ye who believe! Stand out firmly for justice, as witnesses to Allah, even as against yourselves, or your parents, or your kin, and whether it be (against) rich or poor: for Allah can best protect both. Follow not the lusts (of your hearts), lest ye swerve, and if ye distort (justice) or decline to do justice, Verily Allah is well- acquainted with all that ye do. [4:135] 12 29 I.A. 196. 13 23 Cal 563 (P.C.).

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What matters relate to procedural law? Matters relating to remedy, mode of trial, the manner of taking evidence, and forms of actions are all maters relating to procedure.14 What is to be done where in a particular matter no provision of law is available in the Cr. P. C. 1898? In cases of absence of any provision in case of a particular matter, the Court may act on the principle that every procedure should be understood as permissible till it is prohibited by law.15 Absence of any provision on a particular matter in the Code does not mean that there is no such power in criminal Court 14 PLD 2001, SC 607 15 1992 MLD 1944.

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which may act on the principle that every procedure should be understood as permissible till it is shown to be prohibited by law.16 What is a Charge? A charge is defined in Cr. P. C. 1898 in section 4(c) which reads as under: ( c ) “Charge” includes any head of charge when the charge contains more heads. Such a definition is called an inclusive or enlarging definition which maintains the ordinary dictionary meaning of the word defined and includes certain more things in it. Ordinary meaning of a charge is an allegation of some deviation from the norms of a society. When such deviation 16 AIR 1956SC 116.

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is made punishable under the law it is called a charge. The term “charge” has been judicially interpreted to mean a precise formulation of the specific accusation against a person who is entitled to know its nature at the earliest. It denotes charge formulated after inquiry which an accused is to face in the trial. The object of framing charge is to afford the defence an opportunity to concentrate its attention on the case that it has to meet.17 Thus before framing a charge a Court is ,- To make a perusal of the Police

Report, To examine all documents that come

on the record of the Court, 17 KLR 1993 Criminal Cases 8.

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To examine all statements that were recorded by the Police or any Magistrate during the investigation and have come on the record of the Court,

To consider that what ever has come before the court prima facie makes out an offence against the accused, and

To make an opinion that in the presence of all that material accused should face a trial.

Charge is not final determination of the guilt of the accused. It does not per se means that the accused is held guilty. To hold him guilty, the charge is to be established by the Prosecution standing on its own legs

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beyond any reasonable doubt. Admissible and relevant evidence is to be produced and made subject to the acid test of cross examination. This is also to be seen according to law and under the law. A judge is also not above law. He is to proceed according to law. His proceedings are called judicial proceedings. At every step whether discretionary or non discretionary he is to remain judicial and fair. Every dent in the prosecution case is to give benefit of doubt to the accused and all principles of fair trial are to be observed at all stages from start to end. A charge is not rigid or unchangeable.

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Charge once framed may be altered or changed at any stage and any number of time. This power is available to the Court under section 227 of the Cr. P. C. 1898.18 This change is also not arbitrary, whimsical or at the sweet will of the court. It is according to law and in accordance with law. It is also not to cause harassment or prejudice to the accused or to give any hidden benefit to the prosecution. Every action of the court must be in accordance with the facts and circumstances of the case as come on the record in a fair manner. What is mandatory for a charge to contain?

A charge must contain all material particulars as to,-

18 200P.Cr.L.J. 576.

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The time, The place, the specific name of the alleged

offence, the manner in which it was

committed, and particulars of the accused.19

What is an offence? According to section 4(o) an offence means any act or mission made punishable by any law for the time being in force; It also includes an act in respect of which a complaint may be made under section 20 of the Cattle Trespass Act, 1871.

19 2000 P. Cr. L. J. 367.

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Distinction between intentions, preparation, endeavours to do, short of execution, attempt, and commission. Intention means firm resolution of

heart and mind to do an act. Preparation means an effort to

collect all that is needed to bring that intention into action.

Planning, Endeavours to do is practical advancement to wards the target.

Short of execution means from the side of the intender all was done but the scheme failed due to some external reason.

Attempt means more than mere preparation or planning which if not prevented would have brought the ultimate design.

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Judicial interpretation of the words attempt to commit a crime An accused is liable for attempt when his failure to commit an offence is not due to any act or omission of his own, but to the intervention of some factor independent of his own volition.20 In a criminal case the Honourable Supreme Court of Azad Jammu and Kashmir observed: The requisite elements of an attempt to commit a crime are:

1. an intent to commit it, 2. an overt act towards its

commission, 3. failure of consummation, and

20 PLD 1970 Lahore 230; AIR 1961 SC 1698.

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4. the apparent possibility of commission.21

“Attempt” as interpreted by the Federal Shari`at Court in Pakistan Whether a particular act done with the requisite intention towards the commission of an offence is sufficiently proximate to its commission to constitute an attempt or is so remote as to constitute only a a preparation for its commission, depends upon the fact and circumstances of each case. According to Salmond, “an attempt is an act of such a nature that it is itself evidence of the criminal intent with which it is done. The scope of Shari`ah/شریعۃ in relation to the concept of attempted crime is much wider than that of the modern criminal law. The Shari`ah/شریعۃ provides for 21 1995 P. Cr. L.J. 877 (Supreme Court AJ&K).

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punishment for ever abortive or intended offence and there is no exception to this rule. E.g. if a person raises a stick to strike another man but a third person intervenes to prevent the first person, the first person will be guilty of an offence and liable to punishment. 22 General rule laid down by section 233 of the Cr. P. C. 1898 Section 233 Cr. P. C. lays down the general rule that every distinct offence, for which any person is accused, shall be charged and tried separately. This section provides two things, namely,-

1. That there shall be a separate charge for every distinct offence; and

2. That there shall be a separate trial for every such charge except in four

22 PLD 1991 FSC 268.

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cases as provided in ss. 234, 235, 236 and 239.

Why sections 233 to 240 Cr. P. C. are to be read together? The reason is that sections 233 to 240 Cr. P. C. deal with joinder of charges and they must be read together and not in isolation. When the exceptions contained in sections 234, 235, 236 and 239 Cr. P. C. are read with the general rule contained in section 233 CR. P. C. , it appears that the object of exception is to avoid the necessity of same witnesses giving the same evidence two or three times in different trial and to join in one trial those offences with regard to which the evidence would overlap.

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How many categories are there of the “distinct offences” in the light of the illustration to section 233? There are seven categories of distinct offences in the light of the illustration of section 233 Cr. P. C. and those are: Offences falling under different

sections of the same penal enactment.23

Offences falling under different penal enactments.24

Offences committed on different occasions even though they may fall under the same section.25

Offences committed against different persons. 26

23 (’51) 55 Cal WN (3DR) 37. 24 AIR 1933 Lahore 231. 25 (’50) 3 Sau LR 242. 26 AIR 1939 Cal. 32.

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Offences committed by different persons individually though they may be of the same kind, as where three persons were charged with being drunk.

Allegations of misappropriation against accused not in respect of any single amount but relating to different specific amounts received by him on different dates from different persons.

Cases, in which the offences of the same kind committed on one occasion, are taken as one offence and not distinct offences:

Theft of several articles from one

person or more at the same time.27 27 AIR 1936 Rangoon 94.

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The receiving of stolen property belonging to different owners or the gangs of different theft but received at same time.28

The making of any number of false allegations in one statement.29

The misappropriation of several amounts of money not proved to be committed on different occasions.30

A single use of several forged documents as genuine in a Court of law.31

Receiving of bribe partly on one day and partly on another.32

Attempt to murder two persons by firing a single shot at them.33

28 AIR 1923 ALL 547. 29 (‘09) 10 Criminal Law Journal 150. 30 (‘86) 14 Cal. 128. 31 (‘93) 20 Cal. 413 32 (1900-01) 5 Cal. WN 332. 33 AIR 1952 SC 45.

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An alternate charge of perjury.34 What is the criterion for the joinder of charges? The criterion for the joinder of charges is the accusation and not the ultimate result of the trial. 35 What is a transaction? Transaction means a group of facts so connected together as to involve certain ideas namely, unity, continuity and connection.36

34 (’84) 10 Cal. 937. 35 AIR 1956 ALL 466. 36 1990 SCMR 1360.

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Do the principles underlying sections 233 and 239 apply to summons cases or to warrant cases or to both? The principles underlying sections 233 and 239 Cr. P. C. 1898 apply to both summons and warrant cases. 37 What is the cumulative effect of sections 235 and 237 of the Cr. P. C. 1898? Giving both the sections 235 (i) and 237 (i) their significance the obvious conclusions is that where several offences are committed in the course of the same transaction they may all be tried jointly whether those offences are

37 1974 P. Cr. L. J. Note 94 p. 59.

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of the same kind or not and whether their number exceeds three or not and irrespective of whether they a re committed within a period of one year. On the other hand, where the sameness of the transaction is wanting, only three offences of the same kind alleged to have been committed during the period of one year can be tried jointly.38 How and on what basis judicial discretion vested in a court of law under sections 233 and 239 is to be exercised ? The discretion vested in the Court by ss. 233 and 239 Cr. P. C. 1898 is expected like any other discretion vested in a Court of law to be exercised on sound judicial principles and in the light of the 38 (1953) Cut 96.

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facts and circumstances of each case. It is obvious where such a joint trial is likely to embarrass an accused person or cause some serious hardship to the defence it goes without saying that the Court ought not to exercise. Where joint trial is likely to cause any embarrassment to the accused, it should not be resorted to.39 In which provisions of law there have been provided exception to the general rule given in section 233 Cr. P. C. 1898? Exception to the general rule given in section 233 Cr. P. C. are contained in sections 234, 235, 236 and 239 of the Cr. P. C. 1898.

39 PLD 1964 SC 120

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What is the distinction between an illegality and an irregularity for the purposes of s. 537 Cr. P. C. ? Where non-compliance with the provisions of Cr. P. C. is with regard to a matter of a formal character, it is an irregularity curable under section 537 Cr. P. C. but where the non-compliance amounts to as a serious and substantial disregard of the provisions of the Cr. P. C. relating to the mode of conducting a trial, it is an illegality. A trial in contravention of the relevant provision of Ch. 19 of Cr. P. C. is illegal and section 537 of the Code cannot be invoked. 40

40 PLD 1952 Lahore 185.

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What is section 240 of the Cr. P. C.? To which case it applies? Section 240 of the Cr. P. C. deals with the withdrawal of remaining charges on conviction on one of several charges. When a charge containing more heads than one is framed against the same person, and when a conviction has been had on one or more of them, the complainant, or the officer conducting the prosecution, may with the consent of the Court, withdraw the remaining charge or charges, or the Court of its own accord may stay the inquiry, in to or trial of such charge or charges. Such withdrawal shall have the effect of an acquittal on such charge or charges, unless the conviction be set aside, in which case the said Court (subject to the

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order of the Court setting aside the conviction) may proceed with the inquire into or trial of the charge or charges so with drawn. The essential ingredients to attract section 240 of the Cr. P. C. 1898 are as under: This section applies after the charge

containing more than one head is framed.

Such charge should have been framed against the same person.

A conviction has been had one or more of those heads.

Discretion is given by law to the complainant and also to the Prosecutor to withdraw the remaining charge or charges with the consent of the Court. It is common sense that the complainant or the Prosecutor shall

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have to apply to the Court for obtaining such consent of the Court and the Court is to consider the matter and pass a judicial order to grant permission or refuse permission. It is only after the grant of such permission or consent the remaining charge or charges may be withdrawn. This provision also shows that it is not compulsory for the complainant or the Prosecutor to do so.

The Court may suo moto stay the inquiry into or trial of such charge or charges.

Where conviction is set aside the Court shall proceed subject to the order of the Court setting aside the conviction.

Where conviction is not set aside and withdrawal is with consent of the

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Court, the legal effect shall be that of an acquittal on such charge or charges.41

41 See for details in AIR 1929 ALL 899; AIR 1925 Patna 623; AIR 1947 Madh 89; and AIR 1959 All 703 in Indian Jurisdiction.