Howes J:

In this case, the ten Accused appear for trial on a charge of rioting under s. 147 of the Penal Code, namely, that they on 30 October 1937, at Chuah Village "were members of an unlawful assembly and in prosecution of the common object of such assembly namely using criminal force to Haji Jauhari and Haji Jelani committed the offence of rioting."

Before the Accused were charged, Mr. Jeff raised a preliminary objection to the inclusion of Accused Nos 8, 9 and 10 in the charge, on the ground that they had already been charged with the murder of Haji Jelani in the course of the same transaction out of which the present charge of rioting arises, and had been acquitted. Mr. Jeff referred to s. 302 (i) of the Criminal Procedure Code which reads:

A person who has been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence nor on the same facts for any other offence for which a different charge from the one made against him might have been made under s. 166 or for which he might have been convicted under s. 167.

In order that Mr. Jeff's objection may succeed, it must be shown that these three persons will be tried again on the same facts for another offence (namely rioting) for which a different charge from the one made against them (namely that of murder) might have been made at the former trial under s. 166 or for which they might have been convicted under s. 167.

Section 166 is limited to cases in which it is doubtful which of several offences the facts which can be proved will constitute; and from illustration (a) to that section, it is clear that it is intended to apply only to offences which are analogous in character, e.g. theft or receiving stolen property, or criminal breach of trust or cheating.

In the former trial the charge was murder, which bears no analogy to rioting; nor could there have been any doubt as to which offence the facts intended to be proved would constitute. It cannot be suggested that rioting is an ingredient or a constituent part of the offence of murder, in the same way as hurt or grievous hurt may be.

Mr. Hay, for the Public Prosecutor, contended that since the charge against the three Accused was murder they could not have been charged with rioting in the same charge, under s. 166. In support, he quoted English decisions to the effect that in charges of murder or manslaughter any other charges arising out of the same facts should be the subject of separate indictments.

It will be noted that the plea of previous acquittal or conviction given by s. 302 (i) is limited to cases in which a different charge from the one made against the Accused might have been made under s. 166 or of which he might have been convicted under s. 167. It does not apply to s. 165 under which, 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.

It is clear that rioting would be a distinct offence within s. 302 (ii) for which a separate charge might have been made against the Accused in the former trial under s. 165, but could not have been made under s. 166.

In the present state of our Code, I can see no legal objection to the addition, in a charge of murder, of another charge of a different character, provided that the other offence was so connected with the murder as to form one transaction, and provided that the Accused is not embarrassed in any way in his defence; notwithstanding the fact that, following the English practice, it is unusual in these States to combine a charge of a different offence with one of murder.

This being so, s. 302 (ii) expressly provides that in spite of acquittal or conviction, a person may be afterwards tried for a distinct offence for which a separate charge might hav