1. This is an application under section 439 of the Code of Criminal Proce--dure, whereby the petitioner, Mst. Aziz Begum, prays that an order of the VII Additional Sessions Judge, Karachi, dated 4-2-1980, whereby two cases were consolidated for trial, may be set aside.
2. I have heard Mr. S. M. A. Mahmood, for the petitioner, Mr. Sarfraz Tanoli for respondent Muhammad Khusdil and Mr. A. H. Jatoi, for the State. The learned State Counsel has opposed the grant of the application.
3. The brief facts of the case are that respondent Muhammad Khusdil was -standing trial in the Court of the VII Additional Sessions Judge, Karachi, on a charge of murder. During the pendency of this case, the petitioner, Mst. Aziz Begum, filed a private complaint in respect of the same offence in the Court of an Additional City Magistrate at Karachi, and this complaint was, in due course, remitted for trial to the Court of the First Additional Sessions Judge, Karachi. At an earlier stage, this matter had come before this Court, and it was ordered that the private complaint case should be transferred to the Court, where the case instituted on the police report was pending. Suffice it to say that both the cases are now pending before, the same Court. The petitioner then made an application, requesting the Court to stay the proceedings in the case instituted on the police report This application was rejected, and the operative part of the order of the learned Additional Sessions Judge is that both the cases be consolidated and tried simultaneously, and, after the Public Prosecutor, incharge of the police cases, had concluded the tendering of his evidence, it should be open to the private complainant viz. The applicant before this Court, to produce any additional evidence by aid of section 540-A of the Criminal Procedure Code.
4. Mr. S. M. A. Mahmood, the learned Advocate for the petitioner, has mainly contended that in case a transaction results in institution of two separate proceedings, one on a police report, and the other by a direct com--plaint, the trial Court has no option, but to proceed with the direct complaint in the first instance, and, during the pendency of such proceedings, the case' instituted on police report should stand stayed. 1n that context, the learned l Advocate has relied on a Supreme Court judgment in the case of Noor 1llAi v.1 The State (1).In this case, the facts were that the police had submitted a report in which two persons had been implicated. The complainant thought that the police had destroyed the true version and had actually tried to protect the real culprits. The complainant, in these circumstances, filed a direct complaint, to which he implicated other persons for the same crime. The question that then arose was in regard to the precedent in the two cases. Their Lordships of the Supreme Court considered the question from the angle that there were two separate cases, in which two sets of different persons were involved and the set of accused in each one of the cases was different. One can understand that in their Lordships' view, they had an intention of obviat--ing any chance of prejudice to any party. The probability of prejudice was present, because, if in the police case, two persons, who had been sent up, were to be acquitted, than the other two persons, who were implicated in the direct complaint, could not have been tried on the same charge. This is a distinguishing feature, which will provide a rule for decision in the present case. In the present case, the only accused in the private complaint, or, in the police report is respondent Khusdil. The version in both the police case as well as the direct complaint case is also the same. The only difference between the two cases is that, to the direct complaint, some witnesses have been added, or, eliminated, as compared with the witnesses shown in the police case. The case of Noor Wali is, therefore, hardly applicable to the present case.
5. Again, in the case of Zulfikar. All Bhutto v. The State (2), a somewhat similar situa--petition arose.
6. The trial against Zulfikar A.I Bhutto was initially on a private complaint, and during the pendency of the said 'complaint, a police report was also submitted. The trial Judges amalgamated the two cases, and proceeded with a single trial. A grievance was made in the Supreme Court on the basis of the dictum in the case of Noor Wahl. In paragraph 57 of the judgment of my Lord the Chief Justice, the situation has been considered. It has been held that, "there was no necessity for a separate trial of the two cases when, technically speaking, there were neither two sets of accused nor different versions nor any additional evidence to be examined by the complainant". Further, his Lordship in the same context observed as, follows :- (1)PLD1966SC708(2)PLD1979SC53 "It was only to avoid prejudice to the complainant that a particular pro--cedure was devised in the reported case of Nur Illahi 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 to urge that it has caused prejudice to the appellant, when factually none is shown. Accordingly, this contention has no force."
7. Considering the two judgments from the Supreme Court, the position is clear that it is not in every case, in which there is a direct complaint and a separate charge-sheet, and the two cases must proceed, one after the other. The guiding principle is, whether there are conflicting versions, in the two cases. If there are conflicting versions perhaps the case of Noor 1llahi would be applicable. But, in other cases, there is nothing which could warrant separate trial which, of necessity, must lead to a probability of conflicting decision, as also a waste of public time.