G. SAFDAR SHAH, J.-On 28-1-1970, at about 7-30 p. m. The appellant herein lodged an F. I. R. At the Police Station, Shujahabad, accusing therein seven persons, including respondents I to 4, for offences under section 148/ 302/307/ 452, P. P. C. Read with section 149, P. P. C. For the murder of two persons named, Mastan Ali Shah and Maqsood Ahmad, as well as causing injuries to nine P.
Ws. Including P. W. Muhammad Bakhsh. After the usual investigation was completed in the case, the Police found accused Amir Bakhsh, Hafiz Ahmad and Ashiq Muhammad innocent and consequently challaned only the four respondents herein to Court to face the inquiry for offences under section 302/307/452 read with section 34 of the Pakistan Penal Code. The complainant party, however, felt dissatisfied with the investigation of the case and so one of the injured P. Ws. Named Muhammad Bakhsh filed a private complaint on 27-4-1970 against accused Amir Bakhsh, Hafiz Ahmad and Ashiq, who were discharged at the instance of the Police, as well as against one Dost Muhammad (not named in the F. I. R.) for offences under sections 148/302/452 read with section 149, P. P. C. In the complaint I n question P. W. Muhammad Bakhsh also included the name of accused Muhammad Hanif, but did not include the name of Muhammad Shafi whose name had been mentioned in the F. I. R. As a co-accused. After the usual inquiry in the F. I. R. Case was completed by the Magistrate, the case was committed by him to the Court of Session on 7-7-1971.
And about three years later, the complaint case instituted by P. W. Muhammad Bakhsh was also committed to the Court of Session on 30-4-1974. On 8-5-1976, on an application moved by the accused in the challan case, the Additional Sessions Judge, Multan, passed an order directing that the complaint case would first be taken for trial. But on a subsequent application moved by the private complainant, the learned Additional Sessions Judge recalled his previous order and directed that the challan case, as well as the private complaint case both would be taken up together and disposed of on the basis of a joint trial, as they pertained to the same occurrence and consequently they were covered under section 239 (a) of the Code of Criminal Procedure.
2. Feeling aggrieved of the said order, respondents 1 to 4 went to the High Court in its revisional jurisdiction, and a learned Single Judge vide his order dated 22-10-1976, allowed the same, set aside the order of the Additional Sessions Judge, dated 25-7-1976 and directed that the complaint case should first be taken up for trial, as laid down in Noor Elahi v. The State (PLD 1966 SC 708).
3. The appellant, who was evidently dissatisfied with the said order came to this Court for leave to appeal, and leave was granted to him vide order, dated 29-6-1977, as it was noted that "even in Noor Elahi v. The State the learned Judges of the Supreme Court had expressed their great concern about the difficulty in laying down the procedure to be adopted in disposing of the two cases. Even otherwise according to the learned counsel for the petitioner this case is distinguishable on its own facts. Moreover, the effect of the amendments introduced into the Criminal Procedure Code by the Law Reforms Ordinance XVIII of 1976 requires further examination. It is further submitted that at any rate the earlier order dated 5th of July 1976 passed in this connection had attained finailty between the parties and could not have been reviewed afterwards".
4.Qazi Muhammad Salim, the learned counsel for respondents 1 to 4 contended that Noor Elahi v.
The State was fully applicable to the facts of this case, and further that the various amendments introduced into the Code of Criminal Procedure by the Law Reforms Ordinance XVIII of 1976 have in no manner diluted or eroded the Law laid down in the said judgment. In so far as this latter contention is concerned, the learned Assistant Advocate-- General has supported the same arguing that the said Law Reforms Ordinance has made no material change in the relevant provisions of the Code of Criminal Procedure, so as to sustain the argument that Noor Elahi v. The State is no more an authority for the proposition that in a case of the present type the private complaint case should first be taken for trial and disposed of. In this view of the matter, the only question which is left for consideration is, whether the High Court, which relied on Noor Elahl v. The State was right in setting aside the order of the learned Additional Sessions Judge and directing him first to proceed with the private complaint case for disposal.
5. Now by examining the case of Noor Elahi v. The State the facts therein do seem to us to be almost identical as in the instant case. In that case also, in consequence of the murder of one Muzaffar Piracha, an F. I. R. Was made at the Police Station in which Ch. Zafarul Haq, Ikramul Haq and Nawazul Haq were accused. Upon the Investigation of the case, however, the Police prosecuted one Ch. Ikram and Banaras whereas Ch. Zafarul Haq and his son Nawazul Haq, whose names were mentioned in the F. I. R. Were mentioned in Column No. 2 of the Challan, implying thereby that no case had been found against them. Complainant Noor Elahi, however, put in a private complaint giving his own version of the incident as set forth in the F. I. R. In the face of these developments, at the stage of the commit--ment proceedings, the question arose as to how the complaint case and the challan case were to be dealt with. And when the matter was brought up for the consideration of the High Court, in its revisional jurisdiction, a learned Single Judge ordered that both these cases shall be consolidated for the purpose of recording evidence. The witnesses common to both the cases were to be produced only once. They would be first examined by the State Pro--secutor, then by the counsel for the complainant and cross-examined by the counsel for the accused. Any additional evidence beyond the testimony of witnesses mentioned in the cballan was also allowed to be produced by the complainant subject to the same procedure.
6. In consequence of the committal inquiry, however the learned Magis--trate made two separate commitment orders in respect of the two cases. The learned Additional Sessions Judge, Rawalpindi who was to try the cases, rejected an application put in by the complainant praying that there should be two separate trials. He evidently intended to have a joint trial of the two sets of accused though they contained no common name. Faced with this situation, the complainant, again approached the High Court in its revisional jurisdiction and a learned Single Judge came to the conclusion that the joint trial of the two sets of accused would not be legal. He, therefore, set aside the order of the learned Additional Sessions Judge and directed that there should be two separate trials for the conduct of which trials he also provided guidelines for the benefit of the trial Judge.
From this order, leave was granted to the appellant to consider the question, whether the special procedure laid down by the High Court for the trial of the two cases had the sanction of law. When the appeal came up for hearing, the said procedure laid down by the High Court was found to be unsupportable, and so it was held that "to that extent, the appeal is well-founded and must succeed".
While grappling with the peculiar features of the appeal, however, the Court noted "The question how the two cases should be proceeded with so as to cause no prejudice to either party, is one of difficulties in the circumstances mentioned and has caused us some concern". But all the same it recorded the conclusion "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 the whole relevant evidence in 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 choose. 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. This procedure is being suggested to avoid a difficulty that might otherwise confront the complainant. If the Police challan is taken up first for trial, the complainant would be under a handicap in so far as he would not be in a position to cross-examine the witnesses for the prosecution. Another difficulty may arise in respect of conducting the case on behalf of the complainant in the first trial. Normally, of course, under the law, the Public Prosecutor is to be in charge of the case, even if the trial is based on a private complaint. The Public Prosecutor, however, in the special circumstances of the case, could permit the complainant's counsel to conduct the proceedings on his behalf under his directions.
Alternatively and that may meet the situation more adequately, Government in the interest of justice, could notify the complainant's counsel, as a Special Public Prosecutor, for the conduct of that case alone. This would ensure full justice to the complainant and he would not be left with any sense of grievance".
7. Now this procedure, in which not only care was taken to provide for almost any unforeseen eventuality arising during the trials but in which the interest of both parties adequately safeguarded, has to be the procedure for the trial of the two cases personally pending in the Court of the trial Judge. In other words, since in the complaint case instituted subsequent to the lodging of the F. I. R. Not only some of the names of the accused are different but at least one accused who was mentioned in the F. I. R. Was dropped and another substituted in his place, the complaint case has to be taken up first A for trial as laid down in Noor Elahi v. The State especially when the two sets of allegations made in the said two cases as to the weapons which were used, as well as the role ascribed to the various accused, is materially different. In point of fact, the learned Assistant Advocate-General concede that the procedure laid down in Noor Elahi v. The State has to be followed in the trial of the two cases, as in view of the peculiar facts and circumstances of the case, the said procedure would be conducive to the interest of the parties, as well as to the interest of complete justice.
This appeal, therefore, fails and is dismissed.