' TASSSADUQ HUSSAIN JILLANI, J.---Petitioner has sought leave to appeal against the judgment dated 17-1-2006 passed by Lahore High Court, Lahore vide which, the private complaint titled "Bashir Ahmad v. Muhammad Ashraf and others" under sections 324, 148, 149, 395, 511, 109, 452, P.P.C.
Was withdrawn from the Court of Additional Sessions Judge, Lahore and transferred to the Court of Ilaqa Magistrate, Police Station Kot Lakhpat, Lahore to be tried along with the State-case titled as "State v. Nazir Ahmed alias Kala and others" under section 324, P.P.C. Police Station, Kot Lakhpat, Lahore.
2. Facts in brief are that respondent, Haji Muhammad Ashraf, got a case registered vide F.I.R. No,193 dated 6-6-2000 under sections 302, 324, 148, 149, P.P.C, Kot Lakhpat, Lahore in which five persons were named as accused. Petitioner, Bashir Ahmad, was also one of the accused. The accused party had a cross version and in terms of said cross conversion the police filed a challan/report under section 173, Cr.P.C. Before the Ilaqa Magistrate as far back in the year, 2000.
3. The petitioner accused not satisfied with the investigation of the cross version filed a private complaint before the Court of Session seized of the police challan under sections 302, 324, 148, 149, P.P.C. In terms of the afore referred F.I.R. The complainant of the said 302 case was also one of the accused. After recording of preliminary evidence, the learned Additional Sessions Judge summoned the accused under sections 324, 395, 148, 149, but did not invoke Article 17 of Offences Against Property (Enforcement of Hadd) Ordinance No, VI of 1979. In the meantime, the complainant in the police challan case under section 302 also filed a private complaint. The trial Court consolidated the challan and private complaint case under section 302, P.P.C. And proceeded to record evidence which according to the leaned counsel for the respondents, has recorded the entire prosecution evidence and even statement of accused has also been recoded under section 342, Cr.P.C. The petitioner who is complainant in the police challan case pending before the Ilaqa Magistrate with regard to same occurrence moved the learned Additional Sessions Judge seized of the trial of the 302 case praying that the police challan case be transferred to the Court of Session to be tried along with afore referred cases. This application was allowed on 3-4-2004 which order was challenged before the High Court who vide order dated 26- 10-2004 set aside the said order with the result that the police challan case remained with the Ilaqa Magistrate.
4. The respondent who is accused in the private complaint filed by the petitioner before the Court of Session moved the High Court in Criminal Miscellaneous 218-T of 2005 praying that the complaint filed by the petitioner (pending before the Court of Session) be also transferred to the same Magistrate seized of the trial of the Police challan case under section 324 which was allowed vide the impugned order.
5. Learned counsel for the petitioner submits that the occurrence being the same, the police having found the case of the petitioner to be prima facie triable and even in petitioner's private complaint filed before the Court of Session the accused having been summoned, propriety demanded that all these cases should have been heard along with police challan registered vide F.I.R. No,193 dated 6-6-2000 under section 302 P.P.C, Kot Lakhpat, Lahore. He contended that the trial of the cases by two different Courts would lead to conflicting judgments and even would be problematic for the Court in appreciating the evidence recorded. In support of submissions made learned counsel relied on Abdul Rehman Bajwa v. Sultan and 9 others PLD 1981 SC 522.
6. Learned counsel for the respondents submits that the rule laid down in Abdul Rehman Bajwa (supra) is rule of propriety; that it is not inflexible; that in the facts and circumstances of this case, this rule may not be followed, as it is likely to cause prejudice to the respondent who is complainant in the murder case. He added that the murder case is at final stages as the prosecution witnesses have been recorded even the statement of the accused has been recorded. It was at a belated stage that petitioner moved for consolidation of the case which on the face of it reflects mala fide.
In support of the submission made, he relied on judgment of this Court reported in Muhammad Sadiq v. The State and another PLD 1971 SC 713 in which at page 718; it was observed as under:--- "The accused persons in the challan case fully participated in the trial of that case and defended themselves. At no stage, the accused persons in the challan case moved the Sessions Court to postpone its hearing because of the counter-case i.e, the complaint case pending in the Court of the Magistrate. It was only after the conclusion of the trial of the challan case and the fixation of a date for the delivery of judgment that the application under section 561-A was made in order to prevent the delivery of the judgment in that case."
7. Learned Additional Advocate-General defended the impugned judgment as according to him, the police challan case in the counter version put up by the petitioner accused in the main murder ease was already pending before the Ilaqa Magistrate and transfer of private complaint filed by the petitioner qua the same has rightly been transferred by the High Court to the same Ilaqa Magistrate.
8. We have heard learned counsel for the parties as also learned Law Officer and given anxious consideration to the submissions made.
9. It is a well established practice based on a rule of propriety that counter cases should be tried together. This rule of propriety has generally been followed because the rationale is that if the counter cases emanating from the same transaction are tried by two different Courts, they are likely to end up in conflicting judgments and even the appreciation of evidence may be subjected to different criteria. However, this rule of propriety is not inflexible rule and the Court may part with it for the reasons recorded in certain situations. One such case is Muhammad Sadiq supra to which reference has been made by the respondent's learned counsel.
10. However, the facts in the instant case are distinguishable and they may not warrant a departure from the well-established practice. Admittedly, petitioner filed a private complaint before the Court of Session as far back in the year 2000 immediately after the police challan case under section 302, P.P.C. And even the trial Court found it to be prima facie triable and summoned the accused.
However, unfortunately, it had proceeded with the police challan case and private complaint under section 302, P.P.C. Earlier in time. The Court remained busy with those cases and petitioner's private complaint based on counter version remained in limbo. There is no allegation that petitioner ever tried to prolong the case or the matter got delayed before the Ilaqa Magistrate on account of any factor directly or indirectly attributed to him. These distinctive features, we may observe with respect, were not brought to the notice of the learned High Court.
11. In the afore referred circumstances, and following the well recognized practice in this regard we are inclined to convert this petition into appeal and allow the same. Resultantly, the impugned order is set aside. The case titled "Bashir Ahmad v. Muhammad Ashraf and others" under sections 324, 148, 149, 395, 511,.109, 452, P.P.C. And State-case C titled State v. Nazir Ahmad alias Kala and others under section 324, P.P.C. Pending before the Ilaqa Migistrate are with drawn from the said Court and transferred to the Additional Sessions Judge seized of the trial in the case registered vide F.I.R. 193 dated 6-6-2000 under sections 302, 324, 148, 149, Police Station Kot Lakhpat.