1. ' Following reference has been received from III Additional Sessions Judge, Sukkur:-- "I am to state that the Honourable High Court of Sindh Bench at Sukkur while hearing a Bail Application of accused Soomar son of Karim' Bux Bhutto directed this Court to complete the trial within two months and the . Bail was declined to accused. The said direction were received by this Court on 24-4-2003 and this Court then recorded the statements of all the material witnesses and there remains evidence of Investigating Officer namely Ghulam Hussain Ruk and P.W. Muhammad Siddiq. During pendency of this case the complainant then filed a direct complaint which was initially filed before Lrd. ATC Judge Sukkur, refused to entertain the direct complaint and said direct complaint was received by this Court by way of administrative transfer on 10-5-2003. Since that direct complaint is pending at preliminary enquiry stage and legally when the direct complaint is filed in any case it is to be proceeded first then that of the State case.
2. ' You are accordingly requested to kindly bring the above factual position to the notice of Honourable Court for favour of kind perusal and further orders as deemed fit."
3. ' As is evident from the reference reproduced above, the learned trial Court was directed to complete the trial within two months while declining the bail to the accused on 11-4-2003. It appears that all the material witnesses were examined by the learned trial Court in compliance with a direction given by this Court. Only Investigating Officer namely Ghulam Hussain and P.W.
4. Muhammad Siddique remains to be examined. Then it came to the notice of the learned trial Court that a direct complaint under section 200, Cr.P.C. Filed on 24-10-2001 by the complainant but the same was received by the Court by way of transfer on 10-5-2003.
5. ' In view of the practice and procedure that has since been long established where direct complaint is filed during the prosecution of a challan cases. Are tried together in fact preference is given to the direct complaint which is made a leading case. The difficulty confronted by the learned trial Court in the instant case is that if the direct complaint is to be given preference then the proceedings in the challan case would be hampered. From the record it appears that even preliminary enquiry as required under section 202, Cr.P.C. Has not yet been initiated and before such course could be adopted a reference, in the term reproduced above has been received.
6. ' I had the benefit of assistance of Mr. Syed Mushtaque Hussain Shah, Advocate. He has drawn my attention to the leading case of Noor Ilahi v. The State PLD 1966 SC 708 and Zulfiqar Ali Bhutto v. The State PLD 1979 SC 53 and Mst. Mehtab v. Khair Muhammad alias Badal and others 2002 SCM R 213.
7. ' In the case of Noor Illahi (supra) the Apex Court set at rest the controversy where two different versions are set up one by the police in the challan case and one by the complainant in direct complaint. It was ruled by majority that complaint case is to be taken up first. It was ruled as follows:-- "The question how the two cases should be proceeded with so as to cause no prejudice to either party, is one of difficulty in the circumstances mentioned and has cause us some concern. The learned Advocate-General suggested that we might issue directions similar to those embodied by the Lahore High Court in the unreported case cited above. The learned Judges observed therein that it would be desirable, should the trial Judge decide to hear first the case based on the police version, to summon the witnesses supporting the counter-version as Court witnesses under section 540-A of the Code of Criminal Procedure, so that the record contains all the relevant evidence.
8. Similar procedure was directed to be adopted during the trial of the complaint case. 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 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 chose. 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.
9. ' This procedure is being suggested to avoid a difficulty that migh otherwise confront the complainant. If the police challan is taken up first for trial, the complainant would be under a handicap insofar as he would not be in a position to cross-examine the witnesses for the prosecution."
10. ' In the case of Zulfiqar Ali Bhutto supra the Apex Court was again confronted with similar position, keeping in view dicta in Noor Ellahi case, it was held at page 77 EE as follows:-- "Therefore, there was no necessity for a separate trial of the two cases when technically speaking, there were neither two cases two sets of accused or different versions nor any additional evidence to be examined by the complainant. It was only to avoid prejudice to the complainant that a particular procedure was devised in the reported case of Noor Ellahi, but to say that invariably it should be followed even if the facts are distinguishable is not correct, as it does not amount to a declaration of law. Having held so, we might also point out that the objection to the trial, if any, should have been taken before the trial Bench; and not having done so, it is too late in the day of urge that it has caused prejudice to the appellant, when factually none is shown.
11. ' Accordingly, this contention has no force."
12. ' Lastly in the case of Mst. Mehtab v. Khair Muhammad alias Badal 2002 SCM R 213. In the said case accused was charged with three murders. After usual investigation challan was submitted against the accused person and learned Special Judge STA, was pleased to take cognizance in the matter on receipt of the file. However, before the receipt of challan and taking cognizance of the matter in the challan case, the petitioner/complainant filed a direct complaint based on different version of the incident. After recording statement of complainant and witnesses, learned STA Court was pleased to take cognizance of the complaint and issued bailable warrants against accused. Both the cases were tried separately. However proceeding in both the cases were being conducted on one and the same date. Both the cases resulted in separate acquittal judgment. Complainant took exception to such course. The Apex Court taking stock of facts and Noor Ellahi case (supra) held:-- "In our considered view the simultaneous trial of both the cases has not caused any prejudice whatsoever. The learned Special Judge has rightly exercised his jurisdiction as conferred upon him Under section 5(3) read with section 5-A(9) of the Suppression of Terrorist Activities (Special Courts) Act, 1975. The findings as derived by the two Courts below have not been shown to have suffered from any legal infirmity or non-consideration of any material piece of evidence and being unexceptionable hardly call for any interference."
13. In case of two version of case with two different set of accused persons. One put forwarded by the complainant in private complaint and other by the police in challan case then the desiralile course is to take up complaint case first and prosecution witnesses cited in challan case are also to be examined by the trial Court as Court witnesses under section 540-A, Cr.P.C. In case of acquittal of accused in complaint case. Challan case is to be proceeded and in case of conviction challan case is to be withdrawn by the-prosecution.
14. In case of two version of a case with same set of accused persons and more or less same set of witnesses, both the cases may be taken up together, with complaint case as leading case and common evidence could be recorded.
15. In event of two version case, and the challan case for any reason is proceeded first in the knowledge of the complainant either on account of delay in filing complaint or delayed receipt of complaint by the trial Court from another Court where no cognizance was taken, then there is no harm in concluding the challan case and decide the same first as no prejudice will be caused to the complainant.
16. In case the challan case is proceeding and just before conclusion, complaint case is received by the trial Court as in the instance case and no cognizance has yet been taken by the Court as yet then, the challan case is to be tried first otherwise, clubbing complaint case with challan case or giving precedence to complaint case over the challan case will tend to cause serious prejudice to the accused and so also cause of delay in trial.
17. ' The procedure evolved in Noor Ellahi case (supra) was adopted, in the words of Anwerul Haq, C.J.
18. In (Zulfiqar Ali Bhutto case) at page 77 EE as follows:-- "It was only to avoid prejudice to the complainant that a particular procedure was devised in the reported case of Noor Ellahi, but to say that invariably it should be followed even if the facts are distinguishable is not correct, as it does not amount to a declaration of law."
19. In view of the foregoing discussion examining the subject reference, it appears that under direction of this Court dated 25-4-2003 statement of all the material witnesses were recorded by the trial Court only Investigating Officer and P.W. Muhammad Siddique remains to be examined. In the meanwhile direct complaint was received by transfer on 10-5-2003 which is pending at preliminary enquiry stage. In fact technically no cognizance has been taken by the learned trial Court of the complaint. If complaint case is amalgamated and or clubbed together with challan case, that is nearing completion. The complaint case would certainly take some time to catch up the pace with challan case such, course will further delay to the prejudice of the accused.
20. In case where the complainant is not satisfied with the version of incident recorded in F.I.R. And proceeding in challan case, then best course for the complainant is not only to file direct complaint promptly and without delay but also to pursue the same diligently so as to take the benefit of the procedure outlined in Moor Ellahi's case (supra) where precedence is given to complaint case. In case there is delay in pursuing complaint case and where cognizance has not been taken and challan case has proceeded then challan case is to be proceeded and decided first as was done in Zulfigar Ali Bhutto case supra. In even both the cases could proceed together then there is no impediment to proceed with both the cases side by side on the same date and be decided simultaneously but by separate judgment as was done in Mst. Mehtab case supra.
21. ' In view of the foregoing assumption of learned trial Court that "legally when direct complaint is filed in any case it is to be proceeded first then that of State case" is not of universal application.
22. The trial Courts may adopt the procedure as discussed above looking at the exigencies of the facts and circumstances of each case.
23. Reference is answered accordingly.