Sh. Hakim Ali, J.--A decision becomes well founded and law is correctly expounded, when the facts of a case are completely commanded. Therefore, it is essential that prior to the decision of the appeal, facts, with brevity, be noted and jotted down in the beginning of this decision, which are as under:-
(a) Maqbool Ahmad Akhtar son of Ghulam Muhammad had retired from Pakistan Army and had returned to his place of abode in Chak No. 8 Ford Wah, Tehsil Chishtian, District Bahawalnagar. On 11/12.9.2001 at about 12:15 am. in the mid night, he was allegedly murdered by Shakeel Ahrnad son of Nawab Ali and Mst. Sarwari Bibi, wife of the deceased. This information was laid down by Abdul Hameed son of Ghulam Muhammad, real brother of the aforesaid deceased, with the police of Police Station Saddar, Chishtian, on 12.9.2001 at about 3:05 a.m. during the night. The report was registered by the police vide F.I.R. No. 252/2001, under Section 302 of the PPC. After completion of usual investigation, Shakeel Ahmad and Mst. Sarwari Bibi, the above noted accused were directed through submission of report under Section 173 of the Cr. P. C. to face the murder trial. Learned Additional Sessions Judge, Bahawalnagar took the cognizance of the case through Sessions Case No.54 of 2001/Sessions Trial NO. 5 of 2002 (The State versus Mst Sarwari Bibi and another). Charge was framed against both these accused on 24.5.2002 by aforementioned learned Additional Sessions Judge.
(b) With regard to the same occurrence, another version was brought before the learned Court by Makhdoom Ahmad son of Mst. Sarwari Bibi, by filing a private complaint under Section 302 of the PPC. In that complaint, the complainant had accused Abdul Hameed for the murder of his father Maqbool Ahmad Akhtar. After recording of preliminary enquiry evidence, Abdul Hameed accused, the informant of case, FIR No. 252/2001 (as noted above) was summoned to face the trial of Sessions Complaint Case No. 1 of 2002/ Sessions Trial No. 8 of 2002 (Makhdoom Ahmad versus Abdul Hameed). Charge was framed against him on 16.7.2002.
(c) So, from the above resume of facts, two cross versions with regard to one and the same incident of the murder of Maqbool Ahmad Akhtar, were brought before the learned trial Court, one by Abdul Hameed, the brother, and the other by Makhdoom Ahmad, the son of the deceased.
(d) The question had arisen as to how both these cases were to be proceeded with? To which case, the preference was to be given for trial and as to whether decision was to be pronounced in both these cases simultaneously or not? On 24.10.2002, the learned Additional Sessions Judge, by resolving this controversy, passed an order in the challan case, the relevant portion of which is reproduced hereunder:-- "As the set of the accused is altogether different alongwith set of witnesses, then this Court is of the humble view that the complaint titled 'Makhdoom Ahmad versus Abdul Hameed" and the instant case should be decided simultaneously by firstly recording evidence in complaint case and then in the challan case."
(underlining has been provided by us)
So, from this order, learned trial Court decided to take up the complaint case first for recording of evidence and then the evidence was to be recorded in challan case but both the cases were to be decided simultaneously.
(e)Accordingly, following this settled procedure Makhdoom Ahmad, complainant produced his evidence, which was recorded. On 27.8.2003, he had closed his evidence. On that date, learned Additional Sessions Judge by referring to PLD 1966 SC 708 (Nur Elahi versus The State & others), summoned all the official witnesses of challan case as CWs at the first instance and recorded thereafter the statements of four official witnesses as CW-1 to CW-4.
On 19.9.2003, learned Additional Sessions Judge passed another order for recording the statement of one witness, from each set of private witnesses of the challan case, excluding the statement of Abdul Hameed, who was accused in the complaint case. After recording the statements of Muhammad Saleem and Mst. Kalsoom Bibi as CW-5 and CW-6 and statement of accused, namely, Abdul Hanteed on 22.9.2003 under Section 342 of the Cr.P.C., the learned Additional Sessions Judge, by giving benefit of doubt acquitted Abdul Hameed, accused of the complaint case on 29.9.2003, through the impugned judgment. Hence this appeal.
2. Learned counsel appearing on behalf of appellant Makhdoom Ahmad submits that the procedure for the trial of complaint case as well as challan case at the beginning was correctly settled and thereafter proceeded with by the learned Additional Sessions Judge. He had correctly decided on 24.10.2002 that statements of witnesses shall be recorded firstly of the complaint case, thereafter of the challan case and that both the cases shall be decided at one and the same time.
According to the learned counsel for the appellant, the learned Additional Sessions Judge afterward deviated from this settled principle and procedure by deciding the acquittal of respondent. He had also violated the principle of administration of criminal justice, when he summoned one witness from each set of private witnesses of the challan case, at his own whim and will. It was the right and prerogative of the prosecution to produce such witnesses, as the prosecution had intended and wanted to produce the witnesses of its case. Secondly, putting aside, the earlier decision that both the cases would be decided at the same time, he went on to decide the complaint case first and hurriedly acquitted Abdul Hameed accused in this way.
According to the learned counsel, this adaptation of novel procedure was against the settled procedural law of the trial as propounded by the Hon'ble Supreme Court of Pakistan in PLD 1966 SC 708 (Nur Elahi versus The State & others), PLD 1971 SC 713 (Muhammad Sadiq versus The State and another) and PLJ 1981 SC 895 (Abdul Rehman Bajwa versus Sultan and nine others). Therefore, the appeal may be accepted and the judgment of acquittal may be set aside and the case be remanded to a new incumbent learned Additional Sessions Judge, as the earlier learned Additional Sessions Judge has already been transferred.
3. On the other hand, learned counsel appearing on behalf of Respondent No. 1 submits that the procedure adopted by the learned Additional Sessions Judge was correct, legal and valid one. The complaint case was to be taken up firstly, which was done by the learned Additional Sessions Judge. It was not necessary for the learned Additional Sessions Judge to decide the cases simultaneously. As per learned counsel for Respondent No. 1 this procedure was to be adopted when there were two different Courts; otherwise, in one and the same Court, simultaneous decision was not necessary, as there was no possibility of conflicting judgment coming into existence.
Relying upon PLD 1966 SC 708 (Nur Elahi versus The State & others), learned counsel submits that the decision in the complaint case was to be given preference and priority. After the decision of complaint case challan case was to be decided by the learned Additional Sessions Judge, which procedure was rightly adopted and was in accordance with the principle laid down by the Hon'ble Supreme Court, in cases referred to above. Therefore, he has prayed for dismissal of the appeal.
4. Considering the case law, and the record referred to by the learned counsels and their arguments, we have reached to the conclusion that the learned Additional Sessions Judge had hurriedly passed the judgment of acquittal on Abdul Hameed in the complaint case. There was no need or urgency to deviate from the earlier settled principle/rule to which both parties had also tacitly consented, that both the cases, complaint as well as challan case would be decided simultaneously. Why such settled decision was disregarded and not followed, we have not been able to find any reason for it. In the order dated 24.10.2002, it was decided that both the cases would be decided concurrently which procedure and decision was in accordance with the dictum laid down by the Hon'ble Apex Court of Pakistan in PLD 1971 SC 713 (Muhammad Sadiq versus The State and another), wherein it was clearly laid down that the judgment should be pronounced in each case simultaneously. Although the rule was held not to be an absolute or inflexible rule yet it was near to logic and reason. When a complaint case is decided in favour of the accused and the accused is acquitted, the other party of- challan case automatically takes preference and in such an event, the, apprehension against the Court becomes evident, that it considers the complainant and his party men of the complaint to be guilty of the offence and there remains no other party to be prosecuted -1. to be declared murderer except the accused of challan case. In other words, a decision of a challan case implicitly is pronounced with the announcement of the decision of the complaint case. It would also work as causing prejudice to the case of accused of the challan case. In this event, the judgment in the complaint case prefixes the guilt upon the accused involved in the challan case without any more conduct of trial of the challan case. To dilate it more, it is decided before hand that accused of challan case are the real accused although evidence in challan case has still to be recorded and judicial mind to the version of challan case has still to be applied. Therefore, it would be better for the safe criminal administration of justice that both the cases are decided at one and the sang time. The mind of the Presiding Judge would also not be prejudice while trying the challan case and complaint of leaniz towards, prosecution in the challan case in such manner would be avoided.
5. From one and the same Court, an occurrence having two different versions, should and must be decided simultaneously, so that not only the confidence in the decision of the Court must gain the impression of impartiality in, the mind of he accused but the transparency should also appear floating on the surface by deciding both the cases concurrently. Moreover, when there are two versions of an occurrence, then it would be just and appropriate that after recording evidence in both these cases (Complainant as well as in challan case) the versions of both be considered at one and the same time after keeping them in juxta-position, and out of these two versions real culprits be brought to book. By not adopting this procedure justice would neither he done nor would seem to have been done.
6. In the instant case, still the challan case was not complete because evidence of many Witnesses had remained to be recorded in that case. We have also noted that the concerned learned Additional Sessions Judge could not compel the prosecution to examine one witness from each set of witnesses of challan case, in the complaint case. If in the challan case, all the evidence was recorded as well as in the complaint case, it would have been better for the collect understanding and just decision of the case, to bring to bock, as to who was the actual culprit and guilty of commission of murder of the deceased. By not adopting the settled rule, the impugned, judgment of the learned Additional Sessions Judge has suffered a legal defect. which we cannot approve, It is correct that rule of trial and decision of challan and complaint case together, is not an absolute, hard and fast rule, yet we have not been informed Of any exceptional circumstances; warranting devittion front the settled and established principle of simultaneous decision of both these cases.
Therefore, by relying upon the decision contained in PLI) 1971 SC 713 (Muhammad Sadiq versus The State and another) and of Para No 23 of the judgment reported in, PLJ 1981 SC 895 (Abdul versus Sultan,and nine others), we are of the view that the impugned judgment is liable to, be set aside Therefore, by accent, his appeal, set aside the impugned judgment, and remand the case to the Sessions Judge, Bahawalnagar, with a direction to complete initially the evidence in the challan case and then to proceed to decide both the cases contemporaneously. The learned Sessions Judge may entrust both these cases to any other competent learned Court, if be consider expedient.