PLJ 2006 Cr.C. (
Present: Ijaz Ahmad Chaudhry,
J.
MUHAMMAD ASGHAR--Petitioner
versus
STATE and 2 others--Respondents
Crl. Revision No. 1132 of
2002, decided in 6.12.2005.
----Ss. 302 &
34--Criminal Procedure Code, 1898 (V of 1898) S. 439--Private Complaint and
challan case relating to death of deceased pending in Trial Court--Proceedings
commenced in private complaint while proceedings in challan case were not
commenced as yet--Application by widow of deceased that after conclusion of
trial in private complaint police case relating to same occurrence as also the
other private complaint relating thereto be commenced and judgments thereof be
delivered simultaneously, was rejected by trial Court--Legality--Facts and
circumstances of present case so warrant that before making any final decision
on private complaint filed by complainant, second version wherein complainant
alongwith another has been made accused/should also be brought on record of
trial Court either through commencement of trial in police case or after
preliminary inquiry in the other complaint filed by wife of deceased and if
Trial Court reaches conclusion to summon accused nominated therein, the trial
thereof should also commence and on conclusion thereof, judgments in both
matters be delivered by Trial Court simultaneously--Fate of challan case would
take effect in accordance with decision thereof--However if private complaint
filed by wife of deceased is dismissed any how at preliminary stage, then trial
would be commenced and concluded on report submitted by police u/S. 173 Cr.P.C.
and judgments would be delivered together--Till the Trial Court should not
announce final judgment in private complaint filed by complainant--Trial Court
was directed to commence trial in cross-version and then deliver judgments in
both matters simultaneously. [P.
727] A
PLD 1966 SC 708; 1975
PCr.L.J. 400; 2000 SCMR 641; PLJ 1981 SC 895 and PLD 1971 SC 713, ref.
Ch. Muhammad Rafiq Warriach,
Advocate for Petitioner.
Syed Zahid Hussain Bokhari
and Mr. Sadaqat Mehmood Butt, Advocate for Respondent No. 2.
Mr. Muhammad Hanif Saleemi,
Advocate for State.
Date of hearing : 6.12.2005.
Judgment
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 vs.
Muhammad Asghar etc", police case titled "The State vs. Amanat Ali
Shah etc." and the private complaint titled "Fayyaz Bibi vs. Amanat
Ali Shah etc." 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 DDA for
commencement of trial in the challan case as trial in the private complaint
fled 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. 276/2000 dated 20.6.2000 initially u/S.
324/34 PPC at Police Station Kharian to the effect that on 19.6.2000 at 10.00
p.m. (he) Amanat Ali Shah Respondent No. 2 alongwith 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 alongwith two unknown
persons, all armed with rifles, 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 filing, 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 DHQ
Hospital Gujrat where he died and offence u/S. 302 PPC 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 u/S. 173 Cr.P.C. was submitted against them.
In the meantime, Amanat Ali Shah filed private complaint titled as Amanat Ali
Shah versus Asghar Ali etc. on 20.10.2000 reiterating the story narrated in the
report u/S. 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 DDA 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 vs. Asghar etc." 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 alongwith others was falsely implicated in the murder case
by Respondent No. 2, who in fact alongwith 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 Supreme Court 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 u/S. 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 u/S. 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 P.Crl.L.J. 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 alongwith 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 u/S. 173 Cr.P.C. a
different set to 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 below 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 case 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 alongwith 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 cannon 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 vs. Asghar Ali etc., 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 the report u/S. 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-witness of the F.I.R., were in fact the
murderers. Similar situation arose in Mst. Rassolan Bibi vs. 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 Supreme Court of Pakistan 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 vs.
Sultan and nine other (PLJ 1981 Supreme Court 895) 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 case and that Mr. Zulfikar 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, reiterated 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 alongwith
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 any how at the preliminary stage, then the trial
shall be commenced and concluded on the report submitted by the police u/S. 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 alongwith 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 Crl. 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 mattes simultaneously. Till
then final judgment in the private complaint filed by Respondent No. 2 shall
not be announced.
(Aziz Ahmad Tarar) Order accordingly.