SIKANDAR ZULQARNAIN SALEEM, J.---By filing this revision petition under sections 435/439, Cr.P.C., Mst. Azeeman Mai petitioner has challenged the judgment dated 19-12-2013 passed by the learned Additional Sessions Judge, Jatoi District Muzaffargarh whereby private complaint filed by the petitioner under sections 302/460/34, P.P.C. Against respondents Nos. 2 to 9 has been dismissed.
2. Brief facts of the case are that the petitioner filed private complaint for an occurrence which statedly took place on 31-1-2011 in which Abdul Hakeem husband of the petitioner was murdered and F.I.R. No, 43/2011 was registered under sections 302/460/34, P.P.C. At Police Station Shahar Sultan District Muzaffargarh on the statement of Mst. Azeeman Mai petitioner. Initially F.I.R. Lodged by Mst. Azeeman Mai petitioner was against unknown persons. Later on through supplementary statement she nominated eight accused persons namely, Amjad, Yousaf, Jindwada, Bilal, Shahzad Rasool, Muhammad Amir, Aslam and Ibrahim. Thorough investigation was conducted by the police in the aforesaid F.I.R. And formal report under section 173, Cr.P.C. Was prepared wherein Haji Jindwada, Bilal, Shahzad Rasool and Amir were declared innocent whereas accused Aslam and Ibrahim were declared proclaimed offenders and their names were indicated in column No, 2 of the challan with red ink. After submission of report under section 173, Cr.P.C. Accused Jindwada, Bilal, Shahzad Rasool and Amir were formally summoned and after completion of proceedings under section 87, Cr.P.C. Against Aslam and Ibrahim, the accused were supplied with statements of witnesses and other documents as required under section 265-C, Cr.P.C. And were formally charge sheeted for the offences under sections 302/460/34, P.P.C. Vide order dated 7-7-2012. Trial in the challan case was initiated and the prosecution evidence was being summoned when the complainant Mst. Azeeman Mai filed private complaint under section 200, Cr.P.C. On 22-9-2012.
Vide judgment dated 19-12-2013 passed by the learned Additional Sessions Judge, Jatoi District Muzaffargarh private complaint filed by the petitioner was dismissed in limine with the following observation:-- "5. In my considered opinion, the admission of this private complaint for regular trial is going to produce no positive result rather would be a big hurdle in expeditious conclusion of the trial in the F.I.R. Case. Therefore, finding no merits in the complaint in hand, it is hereby dismissed in LIMINI."
Being aggrieved by the observations made in the impugned judgment passed by the learned trial Judge, the complainant/petitioner has filed this revision petition before this Court.
3. Learned counsel for the petitioner has vehemently argued that the learned trial Judge has erred in passing the impugned judgment inasmuch as the same is against the dictum laid down by the honourable Supreme Court in the cases reported as "Noor Elahi v. The State" (PLD 1966 SC 708) and "Rashid Ahmad v. Asghar Ali and others (PLD 1986 SC 737) wherein it has been specifically laid down that in the similar circumstances, the complaint is to be given preference over the challan case at the time of hearing of the two cases. According to the learned counsel, if the complaint case is not taken up first, whole of the trial would be an exercise in futility and the case of the complainant would be materially prejudiced. Elaborating his point, learned counsel submits that the proceedings in the challan case would be conducted by the Public Prosecutor/District Attorney, whose main concern would be to follow the lines given in the State case and he would be a last man to watch the interest of the complainant. Learned counsel for the petitioner further clarifying the position has argued that in the case in hand during the investigation, the police has declared the four respondents, namely, Haji Jindwada, Bilal, Shahzad Rasool and Amir as innocent whereas the accused namely Aslam and Ibrahim were declared P.O. And their names were indicated in column No, 2 of the challan with red ink. If the police challan case is taken up first, the Public Prosecutor would be obliged to produce those Investigating Officers as P.Ws., who had conducted the investigation and had declared the four respondents as innocent. In such a situation, the complainant would have no remedy even to cross-examine the said witnesses so as to challenge their veracity, as such, the case of the complainant would be adversely affected.
Learned counsel for the petitioner has lastly submitted that mere summoning of the accused/respondents in the challan case would not bring the case of the four accused- respondents at par with the accused who stands challaned in Column No. 3.
4. I have given my anxious consideration to the arguments addressed by the learned counsel for the petitioner. The crucial point to be decided by this Court is whether the dictum laid down by the honourable Supreme Court in "Nur Elahi's case" (PLD 1966 SC 708) and subsequently in the case of "Rashid Ahmad v. Asghar Ali and others" (PLD 1986 SC 737) would be applicable to the facts of the case in hand or the principle laid down in "Zulfiqar Ali Bhutto v. The State" (PLD 1979 SC 53) and "Mst. Anis Begum v. Muhammad Khushdil and another" (PLD 1981 Kar. 141) would apply to the facts of this case. I have carefully gone through the aforesaid precedents and the principle laid down by the honourable Supreme Court therein. I feel that there is a nice distinction between the observations made in the cases cited supra as such criminal case stood factually distinguishable from the other, so the observations also varied according to the circumstances of each case. There is no cavil in the proposition that if the set of the P.Ws; the accused and the version of the complaint case as well as the challan case is the same, then both the cases could be consolidated and there would be no necessity of holding separate trial, but if any of the aforementioned condition is not fulfilled then the observations made by the honourable Supreme Court in Noor Elahi's case would take the field and preference would be given to the complaint case at the trial.
5. The version in the State challan case and the private complaint case is the same. The witnesses in both the cases are the same. The only difference is that in the State challan case, Haji Jindwada, Bilal, Shahzad Rasool and Amir respondents have been found innocent by the Investigating Officer whereas the accused namely Aslam and Ibrahim were declared P.O. And their names were indicated in column No. 2 of the challan with red ink and Muhammad Amjad and. Muhammad Yousaf alias Abi were shown as accused, against whom a prima facie case is stated to have been made out, whereas, in the private complaint case the said four persons have been found to be persons against whom a prima facie case stands made out. Where the prosecution story is the same, but only the number of accused connected with the commission of the offences differ, the rule in Atta Jillani's case (supra) is pressed into service to determine the mode of trial. Where, however, the prosecution story and the defence version basically differ and certain accused persons named by the complainant are found innocent or certain persons not named are found to be able for the offence committed, the rule in Nur Elahi's case (supra) is pressed into service. In the instant case the position is not the same, names and number of witnesses is the same and the same is the position of the accused, therefore, there is 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. It is only to avoid prejudice to the complainant that a particular procedure was devised in the reported case of Nur Elahi, 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. Reliance in this regard is placed on "Raja Khushbakhtur Rehman and another v. The State" (1985 SCMR 1314) in which Nur Elahi's case was considered and distinguished and following observation was made:- "Learned counsel for the petitioners has also assailed the dismissal of the complaint, on the ground that there was no provision of law enabling the Trial Judge to permit the withdrawal of a complaint in a murder case. In this connection he submitted that had the complaint not been dismissed, the complaint case could have been tried first in view of Nur Elahi v. The State PLD 1966 SC 708. Nur Elahi's case, however, does not lay down any invariable rule that the complaint case is always to be tried first. Where the version and the accused are practically the same in both the complaint and the challan cases, even a separate trial may not be necessary. The point had come up for consideration in Zulfiqar Ali Bhutto v. State PLD 1979 SC 53 where it had been held:- "Therefore, 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. It was only to avoid prejudice to the complainant that a particular procedure was devised in the reported case of Nur Elahi, 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."
6. Generally the complaint under section 200, Cr.P.C. Is basically a petition of protest against the accused and Investigating Agency for their misuse of process of law, and when the mentioned above do the practice not close to the facts and circumstances of case then complainant has no other remedy except to knock at the door of competent Court for the sake of dispensation of justice and redressal of his/her grievance. The petitioner in the present case filed the instant petition feeling such situation. Since the accused in case initiated upon the police report and complaint are the same, therefore, learned Judge would consolidate the both, the complaint case and the challan case and hold the proceedings in complaint case. He will frame the formal charge, examine all the witnesses mentioned in complaint and police report case and announce the one judgment in both cases. In that eventuality, the complaint case and police report case would be considered to be one case from the stage of order of consolidation of trial. Therefore, apprehension of the complainant regarding formal police witnesses would be well augmented when the complainant would be provided opportunity to cross-examine those formal witnesses, who shall be summoned by the court on request of the complainant/prosecution or at its own to be examined as court witnesses. Even otherwise, where the version and the accused are practically the same in both the complaint and the challan cases, even a separate trial may not be necessary.
7. Resultantly, this revision petition is accepted and the impugned judgment of the learned Additional Sessions Judge, Jatoi District Muzaffargarh dated 19-12-20l3 is set aside: The learned trial Judge is directed to proceed with the complaint and the complainant would be able to avail opportunity to cross-examine those formal police witnesses, who shall be summoned by the Court on request of the complainant/prosecution or at its own to be examined as court witnesses.