2006 P Cr. L J 486
Penal Code (XLV of 1860)---
----Ss. 302 & 324/34---Criminal Procedure Code (V of 1898), Ss.204 & 439---F.I.R. and the private complaint filed by the complainant were against the same set of the accused while in the report submitted by the police under S.173, Cr.P.C. a different set of the accused i.e., the said complainant and his son, who claimed themselves to be eye-witnesses of the occurrence, had been sent to face the trial---Widow of the deceased had also filed a private complaint against the last set of the accused---Dictum laid down in Nur Elahi's case PLD 1966 SC 708 for the trial of complaint case and the State case was not fully applicable to the facts and circumstances of the present case, as in the said case the version of the complainant in the F.I.R. and the private complaint was the same and in the report under S.173, Cr.P.C. submitted by the police only one accused out of the three nominated in the F.I.R. was sent to face the trial,--Whereas in the present case the police after investigation had reached altogether a different conclusion that the complainant and the alleged eye-witnesses of the F.I.R. were in fact the murderers---Facts and circumstances of the present case, therefore, warranted that before making any final decision on the private complaint of the complainant, the second version wherein the complainant along with another had been made accused should also be brought on record of the Trial Court either through the commencement of trial in the police case or after preliminary inquiry in the private complaint filed by the widow of the deceased and if the Trial Court would reach the conclusion to summon the accused nominated therein, then trial thereof would also commence and on conclusion thereof the judgments in both the matters would be delivered by the Trial Court simultaneously---Fate of the challan case would take effect in accordance with decision thereof---However, if the private complaint filed by the widow of the deceased was dismissed at the preliminary stage then the trial would commence and be concluded on the report submitted by the police under S.173, Cr.P.C. and judgments would be delivered together---Trial Court, till then, would not announce final judgment in the private complaint filed by the complainant, because it would cause serious prejudice to the accused nominated therein if the second version wherein the complainant along with his son had been made accused in the same occurrence, was not put before the Court---Trial Court in the presence of both the versions before it would be in a better position to unearth the true facts---Second party in cases of such nature could not be knocked out without affording opportunity simultaneously to adduce their evidence to prove their version, because if in the private complaint they were convicted, the trial of second version would never commence, which could be started in case of their acquittal only and it might take a long time and the possibility of disappearing the evidence in the meanwhile could not be ruled out-Impugned orders were set aside accordingly with the direction to Trial Court to also commence the trial in the cross-version and then deliver the judgments in both the matter simultaneously---Till then the final judgment in the private complaint filed by the complainant would not be announced---Criminal Revision was accepted accordingly.
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Nur Elahi's case PLD 1966 SC 708; 1975 PCr.LJ 400; Mst. Rasoolan Bibi v. The State and another 2000 SCMR 641; Abdul Rehman Bajwa v. Sultan and 9 others PLD 1981 SC 522 and Muhammad Sadiq v. The State another PLD 1971 SC 713 ref.
Ch. Muhammad Rafiq Warraich for Petitioner.
Syed Zahid Hussain Bokhari and Sadaqat Mehrnood Butt for Respondent No.2.
Muhammad Hanif Saleemi for the State.
Date of hearing: 6th December, 2005.
MUHAMMAD ASGHAR VS State
2006 P Cr. L J 486
[Lahore]
Before Ijaz Ahmad Chaudhry, J
MUHAMMAD ASGHAR----Petitioner
Versus
THE STATE and 2 others----Respondents
Criminal Revision No.1132 of 2002, heard on 06/12/2005.
JUDGMENT
IJAZ AHMAD CHAUDHRY, J.---Through this revision petition under section 439, Cr.P.C. Muhammad Asghar petitioner seeks setting aside of order, dated 14-11-2002 passed by the learned Additional Sessions Judge, Kharian District Gujrat by which he has dismissed the application moved by Mst. Fayyaz Bibi respondent No.2 widow of the deceased that after the conclusion of trials in the private complaint titled "Amanat Ali Shah v. Muhammad Asghar and others" police case titled "The State v. Amanat Ali Shah and others" and the private complaint titled "Fayyaz Bibi v. Amanat Ali Shah and others" regarding the same occurrence wherein her husband Shabbir Hussain Shah was murdered judgments in all the cases be delivered simultaneously. Vide separate order, dated 14-11-2002 passed by the same learned Additional Sessions Judge the application moved by the learned D.D.A. for commencement of trial in the challan case as trial in the private complaint filed by Amanat Ali Shah has been concluded and then deliver the judgments in both the matters together has also been dismissed.
2. Briefly the facts are that Amanat Ali Shah respondent No.2 got lodged F.I.R. No.276 of 2000 dated 20-6-2000 initially under section 324/34, P.P.C. at Police Station Kharian to the effect that on 19-6-2000 at 10-00 p.m. (he) Amanat Ali Shah respondent No.2 along with his son namely Imran Abbas and Shabbir Hussain Shah (deceased) was proceeding towards their Dera. When they reached near the Dera they had seen that under the "Keekar" tree, Asghar son of Boota, Ijaz son of Hussain and Asghar son of Akbar along with two unknown persons, all armed with titles, were sitting there. When they reached near them Asghar son of Boota made straight fire towards them, which hit Shabbir Hussain Shah on the front of his chest, who fell down. They raised alarm whereupon Asghar and Ijaz also made firing, but respondent No.2 and his son Imran Abbas saved their lives while lying on the ground. Then the said accused succeeded in fleeing. The motive behind the occurrence was alleged to be that Asghar son of Boota etc. had suspicion that son of respondent No.2 had illicit liaison with Mst. Saiqa daughter of Bashir Ahmad. Shabbir Hussain injured was taken to Kharian Hospital and M.L.R. was obtained. Then he was referred to D.H.Q. Hospital Gujrat where he died and offence under section 302, P.P.C. was substituted.
During the investigation conducted by different Police Officers, the accused persons nominated in the F.I.R. were found innocent vide Zimni No.19 dated 25-7-2000 and they were got discharged. After the investigation Amanat Ali Shah respondent No.2 and his son Imran Abbas Shah were held murderers of Shabbir Hussain Shah deceased and report under 173, Cr.P.C. was submitted against them. In the meantime, Amanat Ali Shah filed private complaint titled as Amanat Ali Shah v. Asghar Ali and others on 20-10-2000 reiterating the story narrated in the report under section 154, Cr.P.C. The accused nominated in the private complaint were summoned and trial initiated against them. On 25-6-2002 respondent No.3 who is widow of Shabbir Hussain Shah deceased filed private complaint alleging that her husband was murdered by Amanat Ali Shah respondent No.2 and his son Imran Abbas Shah, but they got lodged false F.I.R. against their enemies i.e. Asghar etc. On 21-9-2002 she moved application for simultaneous decision of the three matters, which has been dismissed by the learned Additional Sessions Judge, Kharian vide order, dated 14-11-2002. The learned D.D.A. also moved an application on 23-9-2002 for initiation of trial in the challan case as the trial in the private complaint titled "Amanat Ali Shah v. Asghar and others" was 'concluded, so that both the cases be decided simultaneously, but the said application has also been dismissed by the same learned Additional Sessions Judge vide order dated 14-11-2002, which is being assailed through this revision petition.
3. Learned counsel for the petitioner contends that the petitioner along with others was falsely implicated in the murder case by respondent No.2, who in fact along with his son Imran Abbas Shah had murdered Shabbir Hussain Shah deceased, which fact was highlighted during the investigation and report under section 173, Cr.P.C. was submitted against respondent No.2 and his son Imran Abbas Shah. According to the learned counsel, though in view of the dictum laid down by the august Supreme Court of Pakistan in Nur Elahi's case PLD 1966 SC 708, the trial in the private complaint was to be conducted first, but the principle laid down in the said case is not fully applicable to the present case that the fate of the challan case will be dependent on the decision of the private complaint, as in the said case the version of the complainant in the F.I.R. recorded under section 154, Cr.P.C. and the private complaint was the same whereas in the challan case the police after investigation out of the three nominated accused challaned only one accused and the others were placed in column No.2 declaring them innocent, but in the present case the situation is entirely different where the complainant of the F.I.R. and the alleged eye-witness have been declared the murderers and report under section 173, Cr.P.C. has been submitted against them, hence the trial in the challan case and the private complaint filed by widow of the deceased should also commence on the conclusion of trial in the private complaint filed by respondent No.2 so that both the versions are brought before the Court and disposed of simultaneously. It is contended that the learned trial Court has erred in law while declaring that the decision in the private complaint will be made first and after its disposal the prosecution in the challan case shall be at liberty to choose its course. It is also contended that the petitioner has locus standi to file this petition as he is an aggrieved person. Relies upon 1975 PCr.LJ 400 in support of his contention. It is next contended that in case the cases are not decided jointly, and first the private complaint filed by Amanat Ali Shah respondent No.2 is decided alone, it can prejudice the case of the petitioner and case of complainant respondent No.3 Mst. Fayyaz Bibi, who in fact is widow of the deceased and respondent No.2 along with his son had wrongly claimed themselves to be eye-witnesses of the occurrence, who falsely implicated the petitioner and others as accused in the murder case due to enmity.
4. On the other hand, learned counsel for respondent No.2 has supported the impugned orders. It is contended that the trial in the private complaint has been concluded and the applications were filed with mala fide intention only to prolong its decision. Also contends that the impugned order has been passed in accordance with the dictum laid down by the august Supreme Court in Noor Elahi's case (supra), which is liable to be maintained.
5. I have heard the learned counsel for the parties and also perused the record with due care and caution.
6. The above facts reveal that F.I.R. and the private complaint filed by respondent No.2 is against the same set of the accused while in the report submitted by the police under section 173, Cr.P.C. a different set of the accused i.e. respondent No.2 and his son, who claimed themselves to be eye-witnesses of the said occurrence has been sent to face the trial. Respondent No.3, who is widow of the deceased has also filed private complaint against the last set of the accused.
7. The perusal of the impugned order, dated 14-11-2002 made on the application of respondent No.3, the relevant portion whereof is reproduced blow for ready reference:
"... The common sense demands that let Syed Amanat Ali Shah have the chance first to prove that Asghar Ali etc. were the real culprits and if he succeeds the prosecution in the State cases shall have the choice to choose its course in accordance with law and according to the situation and if Syed Amanat Ali Shah fails to prove that he was in fact the complainant and Asghar Ali etc. were the real culprits then Syed Amanat Ali Shah along with his son Imran Abbas Shah shall be put in the accused box to face the trial in the challan case moved by the State and accompanied by this private complaint if and when both of the respondents in the private complaint shall be summoned as accused. Even otherwise the respondents in this private complaint are not summoned as yet and this complaint case is still in its infancy, the complainant lady Fayyaz Bibi does not have any right to move the application for suspending the proceedings of another independent private complaint case."
Reveals that so far no order has been passed regarding the fate of the private complaint filed by her that whether the accused nominated by her should be summoned to face the trial or not, which is against the canon of law in this respect. The learned trial Court should have first decided the said issue, but has out-rightly rejected her application that trial in the three matters cannot be consolidated.
8. Similarly the application moved by the State has been dismissed with the following observations:--
"If the trial is commenced in this challan case before first disposing of the private complaint titled Amanat Ali Shah v. Asghar Ali and others, it would amount to putting Syed Amanat Ali Shah at the place of the complainant as well as an accused at the same time in the same occurrence which is against law as well as common sense. Therefore, it would be better to first dispose of the connected private complaint case and after its disposal the prosecution in this challan case shall be at liberty to choose its course. At the moment, I am of the humble opinion, this application cannot be allowed and the same is accordingly disposed of."
9. I am afraid that the approach of the learned trial Court in the matter in hand is not just and proper. The dictum laid down in Noor Elahi's case (supra) is 'not fully applicable to the facts and circumstances of the present case. In the said case the version of the complainant in the F.I.R. and the private complaint was the same and in report under section 173 submitted by the police only one accused out of the three nominated in the F.I.R. was sent to face the trial, but in the present case the police after the investigation has reached altogether a different conclusion that the complainant and the alleged eye-witnesses of the F.I.R. were in fact the murderers. Similar situation arose in Mst. Rasoolan Bibi v. The State and another 2000 SCMR 641 wherein the complainant of the F.I.R. after the investigation was nominated as an accused, but he filed the private complaint. The learned trial Court proceeded in the private complaint and stayed the proceedings in the State case. The matter went upto the august Supreme Court of Pakistan and their Lordships finally decided as under:---
"The orders of the learned High Court and the trial Court about the trial of the complaint case in the first instance are based on the principles laid down in Nur Elahi v. The State PLD 1966 SC 708, which provides that complaint case should be taken up first for trial and the police challan case to be taken up thereafter in the cross-case based on private complaint and police challan. Thus, no exception can be taken to the impugned orders.
The petition is, therefore, dismissed. However, the trial Court is directed to pronounce judgments in both the cases simultaneously to avoid prejudice to any, of the parties arrayed before it."
In Abdul Rehman Bajwa v. Sultan and 9 others PLD 1981 SC 522 it was held as under:--
"It may be mentioned here that the learned Judge in Chamber had relied on Muhammad Sadiq v. The State another PLD 1971 SC 713 to observe that since the Criminal Procedure Code is silent with regard to the procedure adopted in the trial of cross-cases it was, therefore, not necessary to have required the two cross-cases to be tried together by the same Court. In the same authority, however, it has been observed that the practice generally adapted by the Courts is to try counter-cases side by side by the same Court, till their conclusion and to pronounce judgment in each case simultaneously. No doubt the rule is not absolute and there could be cases in which the circumstances do not warrant that the said procedure must be followed but the rule of propriety which is the basis of the general practice mentioned above is founded on sound principle because if two cross-cases about the same incident between the same parties are tried by different Courts, there can be a serious possibility of a conflict in judgments resulting in two different Courts given two diametrically opposite findings about the same incident."
Their Lordships further held as under:--
"The circumstances in the case of Nur Elahi's case and that Mr. Zulfiqar Ali Bhutto are materially different, inasmuch as the last mentioned case the accused in the private complaint as well as the police case were the same persons. In other words, they were not `cross-cases' in the sense in which the expression is generally understood. It was, therefore, held that the procedure prescribed in Nur Elahi's case need not be followed invariably. We may, however, reiterate that propriety demands that whenever the facts or circumstances permit, cross-cases, giving two different versions of the same incident and have two different sets of accused, should be tried by the same Court, together. As already observed, the logic behind this view is obvious because if the two cases giving different versions of the same incident are not tried together, there would be serious likelihood of conflict in judgments."
10. The facts and circumstances of this case so warrant that before making any final decision on the private complaint filed by respondent No.2, the second version wherein said respondent No.2 along with another has been made accused should also be brought on the record of the learned trial Court either through the commencement of trial in the police case or after preliminary inquiry in the private complaint filed by respondent No.3, if the learned trial Court reaches the conclusion to summon the accused nominated therein, then trial thereof shall also commence and on conclusion thereof the judgments in both the matters shall be delivered by the learned trial Court simultaneously. The fate of the challan case will take effect in accordance with decision thereof. However, if the private complaint filed by respondent No.3 is dismissed anyhow at the preliminary stage then the trial shall be commenced and concluded on the report submitted by the police under section 173, Cr.P.C. and judgments shall be delivered together. Till then the learned trial Court shall not announce final judgment in the private complaint filed by respondent No.2 because it will cause serious prejudice to the accused nominated therein if the second version wherein respondent No.2 along with his son have made accused in the same occurrence is not put before the Court. In the presence of both the versions before it, the learned trial Court will be in a better position to unearth the true facts. In cases of such nature the second party cannot be knocked out without affording opportunity simultaneously to adduce their evidence to prove their version because if in the private complaint they are convicted, the trial of second version will never commence, which can be started in case of their acquittal only and it may take a long time, and the possibility of disappearing the evidence in the meanwhile cannot be ruled out.
11. For the foregoing reasons, this criminal revision is-accepted, the impugned orders are set and the learned trial Court is directed also to commence the trial in the cross-version, as observed in para. 10 ante and then deliver the judgments in both the matters simultaneously. Till then final judgment in the private complaint filed by respondent No.2 shall not be announced.
N.H.Q./M-1453/L?????????????????????????????????????????????????????????????????????????????? Revision accepted.
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