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 mandatory and does not in any way deprive the Court of ordering a separate trial.
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 Supreme Court 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 is 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 senso 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 senso 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 P Cr.L.J 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 framing 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 P.Cr. L.J 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.
Crl. Misc. No.31686 of 2023 Saira Fatima Versus The state, etc. 30.05.2023
0 Comments