ABDUS SATTAR ASGHAR, J.---This Criminal Revision under section 439, Cr.P.C. Is lodged against the order dated 10-6-2009 passed by the learned Additional Sessions Judge, Rahimyar Khan whereby while commencing with the trial on private complaint proceedings in the police case titled "The State v. Ghulam Mohyuddin and others" were stayed following the principle laid down in Nur Elahi's case (PLD 1966 SC 708).
2. Brief facts leading to this petition are that on the statement of one Munir Ahmad complainant case F.I.R. No,287 of 2104 dated 23-9-2004 was registered under sections 302/324/148/149, P.P.C.
Against Muhammad Iqbal and 20 others accused for causing death of complainant's brother Rehmatullah by firearm injury on the chest and also causing firearm injuries to P.Ws. Imran, Hadayatullah, Rahim Bakhsh, Aziz Ullah and Muhammad Mushtaq. In the police investigation accused Ghulam Mohyuddin, Muhammad Iqbal, Abdul Shakoor, Abdul Ghafoor, Muhammad Yousaf, Attiqu-ur-Rehman, Muhammad Aslam and Abdul Hayee were found guilty and other accused were found innocent. Resultantly report under section 173, Cr.P.C. Was submitted against the above noted accused placing them in Column No,3 whereas the other accused were placed in Column No,2 of the challan wherein charge was framed and the case was fixed for evidence.
3. On the other hand, accused party, namely Abdul Shakoor and others advanced their cross- version before the police but it was dropped during investigation. Resultantly Abdul Shakoor accused lodged a private complaint under sections 302/324, 148/149, 506/354 and 341, P.P.C.
Against as many as 23 accused regarding the same occurrence. The learned trial Court summoned the said 23 accused to face the trial and also framed the charge against them. The file of the private complaint was being taken up along with the file of the State Case when the learned trial Court passed the impugned order date 10-6-2009 to continue the trial in the private complaint and to stay the proceedings in the State case.
4. It is argued by the learned counsel for the petitioner that the learned trial Court misconceived the principles laid down in Nur Ellahi's case (PLD 1966 SC 708) and fell in error while staying the proceedings in the State case; that the two separate versions relating to the same occurrence brought before the court are required to be proceeded with simultaneously; that the version of the accused-petitioner advanced through the private complaint is altogether different from the version advanced by Munir Ahmad complainant the F.I.R. He has also taken reliance upon Abdul Rehman Bajwa v. Sultan and nine others (PLD 1981 SC 522).
5. On the other hand counsel for respondents Munir Ahmad has resisted this revision petition with the contentions that the learned trial Court has lawfully adopted the mode of trial so the impugned order dated 10-6-2009 is in the light of the view taken by the Hon'ble Supreme Court in Nur Elahi's case. It was also endorsed in Zulfiqar Ali Bhutto's case (PLD 1979 SC 53). He further argued that in the case of two versions one in the State case and the other in the private complaint case being different and sets of the accused also not being the same the principle laid down in Nur Elahi's case would be attracted. In this regard he took reliance upon Rashid Ahmad v. Asghar Ali and others (PLD 1986 SC 737), Mumtaz and others v. Mansoor Ahmad and another (1984 SCM R 221), Muhammad Dildar Malik v. Tahir Mahmood and another (1998 SCM R 652), Karim Bakhsh v. Zulfiqar and 4 others (1997 SCM R 334) and Syed Muhammad Hussain Shah v. Abdul Hamid and 5 others (1981 SCM R 361).
6. I have given patient hearing to the counsel for the parties and carefully gone through the record.
7. At the outset it is pertinent to mention that in all the above cited cases relied upon by the learned counsel for the respondents private complaint was filed by the complainant party of the State case being dissatisfied with the police investigation, Whereas in the instant case private complaint was not lodged by the complainant party of the State case but by one of the accused persons of the State case with different version, different sets of witnesses and different accused in given circumstances, accused Abdul Shakoor therefore has brought a "cross-case" through the private complaint. Therefore the principle laid down in Nur Elahi's case to try the private complaint and challan case one after the other need not be followed. Here I take reliance upon Abdul Rehman Baiwa v. Sultan and nine others (PLD 1981 SC 522) relevant extract whereof reads below:- "20. It may be mentioned here that . The learned Judge in Chamber had relied on ,Muhammad Sadiq v. The State and another (PLD 1971 SC 713) to observe that since the Criminal Procedure Code is silent with regard to the procedure to be 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 adopted by 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 by the rule of propriety which is 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.
21. The question of the mode of trial of cross cases, one initiated through a private complaint and the other by police, through a challan, about the same incident, giving different versions and against two different sets of accused persons was considered by this Court in Nur Elahi v. The State (PLD 1966 SC 708) and it was held that the cases should be tried by the same Court, one after the other. The procedure prescribed in Nur Elahi's case (supra) was later considered by this Court in Zulfiqar Ali Bhutto v. The State (PLD 1979 SC 1). The circumstances in the case of Nur Elahi and that Mr. Zulfiqar Ali Bhutto were materially different, inasmuch as in 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, reiterate 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.
22. It may be mentioned that the learned Judge in Chamber has observed in the impugned judgment that in the present case the private complaint was not lodged by the petitioner- complainant but by the accused persons. Therefore, according to him, he, i,e,, the petitioner- complainant, had no right to agitate as to how and in which Court the 'private complaint lodged by the opposite party should be tried. While observing this, the learned Judge in Chamber had obviously overlooked the findings of fact given by the learned trial Magistrate (with which the learned Judge concurred in the impugned judgment) that the possession of the land in dispute had not vet been delivered to the complainant party as alleged by the prosecution and that it was the complainant party which had criminally trespassed into the land and assaulted Gama accused, who had only acted in right of self-defence in causing injuries to Abdul Sattar, P. W.1 are bound to adversely affect the decision of the private complaint filed by the accused against the petitioner-complainant.
24. Considering but we have heard the counsel of all the parties at length, we convert the present petition into an appeal and for the reasons mentioned above accept the same and hold that the High Court had wrongly exercised its jurisdiction under Article 199 of the Constitution in setting aside the judgment of the learned Additional Sessions Judge. The impugned judgment is, therefore, set aside and the order of retrial passed by the learned Additional Sessions Judge is restored."
8. In the light of the above quoted dictum since the State case lodged by Munir Ahmad and private complaint being a cross-case lodged by Abdul Shakoor accused of the State case manifest two different versions with two sets of accused and two sets of witnesses to be examined; therefore, the principle laid down in Nur Elahi's case is hardly applicable to the present case. Learned trial Court passing the impugned order misconceived the principle laid down in Nur Elahi's case by staying the proceedings in the State case. In the instant case propriety demands that the two cases should be heard together by the same Court to avoid conflicting judgments. Therefore, this Criminal Revision Petition is accepted, the Impugned order dated 10-6-2009 is set aside and the trial Court is directed to hear both the cases together to avoid any prejudice to the complainant and probability of conflicting decisions.