2018 Y L R Note 161
Criminal Procedure Code (V of 1898)---
----Ss. 200 & 154---Penal Code (XLV of 1860), Ss. 302, 107 & 34---Private complaint was filed by the petitioner being dissatisfied with police investigation---Petitioner lodged FIR against four accused for committing murder of her mother---Police, challaned three persons including one nominated by the complainant in FIR and two others who were unearthed as hired assassins---Investigation mentioned the name of three accused nominated by complainant in column No.2 of the challan, implying thereby that no case had been found against them---Complainant then instituted private complaint envisaged her own version of the incident, as set forth by her in the FIR---Trial Court started proceedings in both the challan case and private complaint---Complainant moved an application that the trial of the challan case might be stayed till conclusion of the trial of the complaint case, which was dismissed---Validity---Record showed that three of the named accused had been declared innocent during investigation and their names were placed in column No.2 of the challan---Fourth one having been found guilty was placed in column No.3 thereof, along with two others---Said two persons were unearthed by the police as hired assassins of deceased---Petitioner consumed little time in bringing forth private complaint against the accused of FIR case only, leaving aside those, detected by the police---Trial Court summoned all six, placed in column Nos.2 & 3 of the challan, which included respondents of the complaint case as well---Trial Court summoned the prosecution witnesses in both the cases bearing in mind that both of them would run side by side and be decided simultaneously on their independent facts---Trial Court, however, did not disclose the mode of examination of the witnesses common in both the cases, if they would be produced and examined only once or repeatedly and as to what procedure would be adopted by the Public Prosecutor and the complainant for their examination, before the defence was asked to cross-examine them---Said lacuna would make the situation highly ambiguous---Summoning all the six persons showed that it was a group of six, allegedly committed the murder of the deceased, if they had committed the crime together, which certainly was not the case---To reach to a definite conclusion in the challan case, as to who had murdered the deceased lady and who abetted the crime was not possible in such a situation---Said amalgamated inconclusiveness, in the challan case, might defeat the very purpose of instituting private complaint by the complainant and bring it to failure, mainly caused by mishandling of two-pronged propositions of law---If one of the two cases was to be held in abeyance till the decision of the other, must be the challan case---If the police challan was taken up first for trial, the complainant would be under a handicap to cross-examine the witnesses for the prosecution, which hinted at a probability of causing prejudice to the complainant, which could be avoided by taking unto her private complaint at the start---Complainant had challenged the bona fide of police investigation in the complaint case, so it would be nearer to justice, if her case was taken up first and the other thereafter---Petition was allowed in circumstances. [Paras. 3 & 4 of the judgment]
Nur Elahi's case PLD 1966 SC 708 rel.
Nasir-ud-Din Nayyar for Petitioner.
Ch. Muhammad Shahid Buttar for Respondents Nos. 1 and 2.
Rana Tassawar Ali Khan, Deputy Prosecutor General Punjab for the State.
Nemo for Respondents Nos.3 to 6.
Date of hearing: 24th April, 2017.
IRAM ASIF VS ABBAS ALI2018 Y L R Note 161[Lahore]Before Shahid Hameed Dar, JIRAM ASIF---PetitionerVersusABBAS ALI and 6 others---RespondentsCriminal Revision No.678 of 2016, heard on 24/04/2017.
JUDGMENT
SHAHID HAMEED DAR, J.--- The petitioner, Mst. Iram Asif is aggrieved of order dated 6.4.2016, whereby learned Additional Sessions Judge, Ferozewala (Sheikhupura) dismissed her application, through which she sought stoppage of the proceedings of challan-case till the conclusion of complaint-case, that she instituted against Abbas Ali, Ali Raza, Mst. Shahida Bibi and Ilyas alias Kaka (respondents Nos.1 to 4) on 24.7.2015.
2.The facts giving rise to this criminal revision are that Mst.Razia Bibi, real mother of Mst.Iram Asif (petitioner), the complainant of FIR No.36/15, dated 26.1.2015, under sections 302/34, 109 P.P.C., Police Station Sharaqpur Sharif, district Sheikhupura, was murdered by Ali Raza (respondent No.2) and llyas alias Kaka (respondent No.4) at about 3.15 p.m. on 26.1.2015 on the abetment of Abbas Ali (respondent No.1) and Mst.Shahida Bibi (respondent No.3); the motive behind the occurrence pertained to familial disputes between the parties. The police, however, prosecuted Imran, Tariq alias Tari and Abbas Ali after investigation and mentioned Ali Raza, Mst.Shahida Bibi and Ilyas alias Kaka in Column No.2 of the challan, implying thereby that no case had been found against them by it. Mst.lram Asif (petitioner/complainant) then instituted a private-complaint envisaging her own version of the incident, as set forth by her in the first information-report. Learned trial court started constructive proceedings in both the episodes by indicting all six, mentioned in columns Nos.2 and 3 of the challan-case and all the respondents in the complaint-case on 16.10.2015, completely overlooking bizarreness of the mode-adopted, having charge-sheeted four common names (respondents Nos.1 to 4) in both the trials. The petitioner, being complainant of both the cases, moved an application with the prayer that the trial of the challan-case might be stayed till conclusion of the respondents' trial in the complaint-case, but it was dismissed by the learned trial court through the impugned order. Hence, the instant petition.
3.The investigation record reveals that three of the named accused, Ali Raza Mst. Shahida Bibi and Ilyas alias Kaka (respondents Nos.2 to 4) had been declared innocent during the course of investigation and their names were placed in column No.2 of the challan, whereas the fourth one, Abbas Ali (respondent No.1), having been found guilty was placed in column No.3 thereof, along with Imran and Tariq alias Tari, who were unearthed by the police as hired assassins of Mst. Razia Bibi. The petitioner consumed little time in bringing forth private-complaint against the accused of FIR case only, leaving aside those, detected by the police. In parallel to it, the court summoned all six, placed in columns Nos.2 and 3 of' the challan, which included respondents of the complaint-case as well. It did not finish here, as the learned trial court charge-sheeted quartet of respondents in the complaint-case and sextet of accused in the challan-case in a single go, on 16.10.2015 and summoned the prosecution witnesses in both the cases, bearing in mind that both of them would run side by side and be decided simultaneously on their own independent facts. It was a novel way of dealing with the complex situation. In trial court's wisdom, the duality of proceedings was too divergent to be dealt with by the ratio of Nur Elahi's case (PLD 1966 SC 708), so it decided through the impugned order to continue with both the trials independently, but concomitantly. It did not, however, disclose the mode of examination of the witnesses common to both the cases, if they would be produced and examined only once or repeatedly and what procedure would be adopted by the public prosecutor and counsel for the complainant for their examination, before the defence counsel was asked to cross-examine them. This lacuna made the situation highly ambiguous.
4.In this situation of ambiguity, the complainant prayed through a written application that there should be one trial at a time and that too in the complaint-case first by adjourning the other trial in the challan-case sine-die, but it was not so liked by the learned trial court and it rejected the said application with the observation that both the trials would run side by side inter se. The procedure adopted by the learned trial court made the situation still messier, as four accused (respondents Nos.1 to 4) are common in both the cases and they have been doubly indicted for the same charge with the only difference that they turned six in the challan-case, being bracketed by two other accused, Imran (respondent No.5) and Tariq alias Tari (respondent No.6), dubbed as hired assassins by the police. So far as the trial of respondents Nos.1 to 4 in the complaint-case is concerned, it may certainly be in line with the case of the complainant/petitioner, but to try them conjointly with the allegedly detected hired assassins may not be anyone's case It may either be the one side or the other, really guilty of the offence in question or it may be none, but they could not be said to have participated in the same transaction together. The challan-case initially entailed only one common name Abbas Ali, having been found involved in the occurrence as an abettor by the police, with three other commons (respondents Nos.2 to 4) mentioned in column No.2 of the challan, but it was made a group of six, when learned trial court summoned and charged all of them accordingly, as if they had committed the crime together, which certainly was no one's case. In this situation of sheer vagueness, it is virtually impossible to reach a definite conclusion in the challan-case, as to who had murdered the poor-lady and who abetted the crime. The amalgamated inconclusiveness, if it be there in the challan-case, may defeat the very purpose of instituting private-complaint by the complainant and bring it to an unfortunate failure, mainly caused by mishandling of two-pronged propositions of law. Complete justice in such a tortious situation may only be achieved, if one of the two cases is held in abeyance till the decision of the other, which must not be, but the challan-case. Two sets of accused cannot be said to be the persons, accused of the same offence, committed in the course of the same transaction within the meaning of clause (a) of section 239 of the Cr.P.C. The question, how the two cases should be proceeded with, so as to cause no prejudice to either party, may be best answered, when respondent-accused (respondents Nos.1 to 4) are .tried and taken to their logical end in the complaint-case first, with no meaningful proceedings in the challan-case during the interregnum. The witnesses mentioned in the complaint-case may be recorded as PWs and those not, but mentioned in the challan-case, may be recorded as CWs by the learned trial court, so that a complete picture of the alleged crime is painted, before it would determine the guilt or innocence of the accused. This is not a situation, wherein both the cases could be tried either consolidated or independently at the same time in juxtaposition to each other. A complete procedure has been devised by the Hon'ble Supreme Court of Pakistan to deal with such like situation in Nur Elahi's case (supra). It has been observed by the apex court that:-
"After considering all aspects of the matter, we hold that a fair procedure would be for the learned trial Judge to take up the complaint case first for trial. During that case the learned trial Judge may call the witnesses mentioned in the Police challan, if they were not already examined on behalf of the complainant, as Court witnesses under section 540-A of the Criminal Procedure Code, so that they can be cross-examined by both the parties. This will enable the Court to have the whole relevant evidence included in one trial and a decision could be arrived at after a proper consideration of the entire material relied on by the parties. The accused persons would in addition obviously have the right to adduce defence evidence if they so choose. If that trial results in a conviction, it will be for the Public Prosecutor to consider whether or not he should withdraw from the prosecution, with the permission of the Court under section 494 of the Code of Criminal Procedure, in the Police challan case. It would be easy for him to take such a decision after the whole evidence has been thrashed out in the first trial. If the first case ends in an acquittal, he might still have to consider whether the Police version has not been so seriously damaged by what has been brought out in the first trial as to justify withdrawal of the prosecution. Otherwise the second trial would be allowed to proceed to its normal conclusion and the parties would have the advantage of utilizing the material placed on the record of the earlier trial, by way of cross-examination of the relevant witnesses, as permitted by law."
A practical difficulty was highlighted by the apex court when it observed, "if the police challan is taken up first for trial, the complainant would be under a handicap in so far as he would not be in a position to cross-examine the witnesses for the prosecution". It surely hinted at a probability of causing prejudice to the complainant, which could be avoided by taking unto his private-complaint at the start. Another difficulty, that could be faced by the complainant in the first trial has been hinted at in the afore-referred judgment and dealt with by the Hon'ble Supreme Court of Pakistan in the following manner:--
"Normally, of course, under the law, the Public Prosecutor is to be in charge of the case, even if the trial is based on a private complaint. The Public Prosecutor, however, in the special circumstances of the case, could permit the complainant's counsel to conduct the proceedings on his behalf under his directions. Alternatively and that may meet the situation more adequately, Government in the interest of justice, could notify the complainant's counsel, as a special Public Prosecutor, for the conduct of that case alone. This would ensure full justice to the complainant and he would not be left with any sense of grievance."
The complainant/petitioner has challenged the bona-fides of police investigation in the complaint-case, so it would be nearer to justice, if her case is taken up first and the other thereafter.
5.For the foregoing discussion, this petition is allowed with the direction that trial will now be taken up by the learned trial judge in line with the observations made hereinabove.
JK/I-23/L Petition allowed.
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