By way of this order an application under Section 12(2) CPC filed by Ch. Azhar Hussain Sub Inspector (applicant ) is being decided who has called in question the legality of paragraph No. 18 of order dated 21.10.2021 passed by this Court in writ petition number 15433 of 2021 (Syed Riaz Hussain Shah vs. Government of Punjab & 2 others).
The said paragraph is as under: - "Before parting with this judgment we want to observe that the learned Special Court also committed a serious illegality while transferring the state case against petitioner and others and complaint case filed by Din Muhammad to the court of ordinary jurisdiction for the reason that as in all three cases the occurrence is one and the same but with different versions, therefore, all have to be tried by one and the same court as a rule of propriety and to avoid conflict decisions by two courts. We therefore, direct that the cases pending in the court of ordinary jurisdiction shall be deemed to be returned to and pendin g in the Special Court forthwith and all the cases shall be tried side by side.
2. Facts of the case are quite relevant to understand the proposition which is as under: - i. About a police encounter First Information Report No. 260, on 10.11.2019, was recorded at Police Station Kot Mubarak District Dera Ghazi Khan on the complaint of Ch. Azhar Hussain SI (applicant ) under Sections 302/324/353/186/440/148/149/337- D PPC read with Section 7 of the Anti Terrorism Act, (XXVII of 1997) {Act} and Section 13 of the Punjab Arms ( Amendment ) Ordinance, 2015. ii. During the occurrence four accused lost their lives besides one Muhammad Salman Constable/1 114 whereas, remaining accused were succeeded to escape. iii. On conclusion of investigation, a report under Section 173 Cr.P.C (Challan ) was submitted in the Anti Terrorism court Dera Ghazi Khan (Special Court) titled as " State vs. Ghulam Shabbir & 2 others". iv. One Din Muhammad claiming to be one of the legal heirs of Abdullah and Ghulam Haider (the deceased accused ) came forward with a version that it was fake police encounter . His narrative was recorded, investigated and concluded in the manners that Riaz Hussain Shah/DSP and Kamran Saif SI were declared innocent whereas, Chaudhary Azhar Hussain SI (applicant) was an accused of abetment (109 PPC). The Challan in this context titled as "The State Vs. Riaz Hussain Shah & 2 others " was also submitted in the Special Court. v. Din Muhammad was not satisfied with the investigation, so he filed a private complaint against applicant and 2 others for their prosecution under Sections 302/34 PPC in the court of ordinary jurisdiction. On conclusion of preliminary inquiry , processes were issued against all accused by the learned Additional Sessions Judge Dera Ghazi Khan and they turned up. However , vide an order dated 09.04.2021, the case was transferred through proper channel to the Special Court for the reason that the trial in State case was pending in that Court. vi. The ultimate position was that two Challans and a complaint case came up for hearing before the learned Special Court. However vide an order dated 16.07.2021, passed by the said Court in Challan case against applicant and others, it was observed that Section 7 of the Act was not made out hence it was triable by the court of ordinary jurisdiction. In the light of same order , a verdict was recorded in the complaint case therefore both the cases were transferred to the court of ordinary jurisdiction. It will not be out of context to mention here that Challan against deceased accused was kept pending by the Special Court. vii. On 24.05.2021 the learned Special Court through a detailed order directed to Chief Secretary Punjab Lahore to constitute Joint Investigation Team ( JIT). viii. Syed Riaz Hussain Shah DSP being aggrieved from the order dated 24.05.2021 passed by the learned Special Court and notification dated 26.08.2021 issued by the Government had approac hed this Court through the writ petition. It was allowed. The impugned order and in consequence thereof, notification issued by the Government were declared illegal and without lawful authority .
3. It was in the above background that we observed that as in all three cases the occurrence was one and the same but with different versions, therefore , all had to be tried by one and the same court as a rule of propriety and to avoid conflict decisions by two courts and we directed that the cases pending in the court of ordinary jurisdiction shall be deemed to be returned to and pending in the Special Court and all the cases shall be tried side by side.
4. Learned counsel for applicant maintained that this court did not enjoy the powers to transfer the cases on the rule of propriety when jurisdiction was conferred upon two different courts those are of ordinary (Additional Sessions Judge) and special jurisdiction (ATC). He further added that rule of propriety will play no role when law has made it clear that jurisdiction in two cases lie with the ordinary court. In support of his contentions he has relied upon Muhammad Sadiq vs. The State and another PLD 1971 SC 713, Khair Din vs. Inayat and another 1974 SCMR 140, Ghulam Hussain & others vs. The State & others PLD 2020 SC 61 and the State vs. Hussain & others PLD 2001 SC 465 .
5. We are unable to understand that how the application under Section 12(2) CPC is maintainable when there is no fraud played with the Court, no misrepresentation has been made and that the order was not without jurisdiction.
Learned counsel for petitioner has completely failed to substantiate his plea in this regard therefore we declare that this application is not maintainable.
6. We, despite the fact that application is not maintainable, want to observe that it is an undeniable proposition that the provisions of the Code of Criminal Procedure, 1898 (Code ) are silent on procedure of trial of cross cases or cases outcome of one and the same FIR. Therefore, in such situation the court has to see that what can be the best way to come out from the said challenge because the ultimate duty of the court is to do the complete justice that means justice for all concerned to the cases without causing any miscarriage of justice or prejudice. The sole object of side by side trials in such cases is to give the trial Judge a complete picture of the whole situation with a view to help him in a proper assessment and appreciation of the evidence in each case, which must be decided on its separate evidence and record without any importation of the evidence of the other case.
7. Entertaining an identical proposition of trial of cross cases in Banappa Kallappa Ajawan & others vs. Emperor AIR 1944 Bom 146 it was observed as under:- "The question of the proper procedure to be followed in such cases, where rival factions which have taken part in a riot are both prosecuted is one of considerable importance. The two factions must obviously be prosecuted separately , since the common intention of each of the two parties to the riot would be different and they could not be tried in a single case. There is of course no objection in law to both the cases being tried by separate Judges with the help of separate juries or assessors, but such a procedure is always open to the risk of the two Courts coming to conflicting findings, and occasionally , as in the present case, it may result, in very serious injustice, one side or the other being wrongly convicted. In our opinion the most desirable procedure in such cases would seem to be that both the cases should be tried by the same Judge though with dif ferent assessors or juries.
"No hard and fast rule can be laid down, and we do not suggest that the procedure which we have recommended above should be invariably followed in the trial of counter cases arising out of one and same riot. But normally , we think that that procedure is the one least open to objection . The view which we have taken on this point is in accord with the view which was taken by the Madras High Court in Krishna Pannadi v. Emperor AIR 1930 Mad.
190 where it was observed that counter cases should be tried in quick succession by the same Judge, who should not pronounce judgment till the hearing of both cases is finished . The same view was taken by another Judge of the Madras High Court in Lakshminarayana v. Suryanarayana AIR 1932 Mad 502. A similar view was also taken by the Lahore High Court in Ujagar Singh v . Emperor AIR 1936 Lah 356"
(Emphasized)
8. Similar question then came up for consideration in Shahid Ali & others vs. the State PLD 1962 Dacca 576.
While responding to this situation it was held that: - "We would also like to point out that whenever there is a case and a counter case in respect to the same occurrence, it is desirable that they should be tried simultaneously by the same learned Judge ; yet the records of each case should be kept distinct and separate. The evidence or record of one case cannot be used in connection with the other case. Each case must be decided on its own evidence and record. The advantage of a simultaneous trial is that it gives the trying Judge a whole picture which will help him to appreciate properly the evidence in each case; but it does not enable him to use the records of one case for the purpose of disposing of the other case" (Reliance was also made on AIR 1944 Bombay 146, AIR 1930 Madras 190, AIR 1932 Madras 502 and AIR 1936 Lahore 356).
9. On this question that cross cases are to be tried by one and the same court, the honorable Supreme Court of Pakistan in Abdul Rehman Bajwa vs. Sultan & 9 others PLD 1981 SC 522 was pleased to observe as under: - "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 necessar y 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, but the rule of propriety which is the basis of the general practice mentioned above is founded on sound principle because if two cross cases about the same incident between the same partie s 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"
"We may, however , reiterate that propriet y demands that whenever the facts or circumstances permit, cross case, 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 "
10. Again similar proposition was taken into consideration by this Court in Rafaqat Ali vs. Hidayat Ali & others 1986 PCRLJ 989 where an argument was raised that trial of the two cases in different Courts may result in conflicting decisions is no ground for transfer of the complaint case from the Court of Magistrate and it was observed that: - "It is a matter of common experience that in a case of fight between two parties, it is not always easy for the police to find out during the investigation as to which of the two versions, given by the rival parties, is correct. The police in such cases prosecute members of both the parties and places different versions and evidence in support thereof before the Court. Where those counter cases are exclusively triable by one Court, the trial is held by that Court, though the trials are held separately and the cases are disposed of by writing separate judgments. Chapter IV of the High Court Rules and Orders, Volume III contains instructions which the Courts are required to follow in the trial of cross cases. Difficulty , however arise s where cross cases are not exclusively triable by one Court, as for instance, one case may be exclusively triable by a 1st Class Magistrate or a Magis trate empowered under Section 30 of the Code of Criminal Procedure. In such case, trials are sometimes held separately by the Courts competent to try these cases, but instances are not wanting where even in such cases trial is held by one Court inasmuch as cases triable by the Magistrate are committed or sent to the Court of Session in which the counter case is pending.
Reference in this connection may be made to Allu and others 'v . The Emperor AIR 1924 Lah 104"
"Although no hard and fast rule can be laid down with regard to the trial of cross cases, there has been a long established practice which has been followed by the Courts that ordinarily cases arising out of the same occurrence should be tried by one Court . Main consideration in support of such practice has been that the trial of cross cases by one Court avoids the risk of conflicting decisions" ( Emphasized )
11. The view taken by apex Court in Abdul Rehman Bajwa' s case was also followed by this Court in Abdul Shakoor vs. the State 2005 PCRLJ 1160 and Abdul Shakoor vs. the State & another 2012 PCRLJ 231 by holding that rule of prudence requires that cross cases should be tried together by the same Court unless by such procedure any party is likely to be prejudiced.
12. We have also gone through the prece dents relied by learned counsel for applicant. In Muhammad Sadiq vs. The State & another PLD 1971 SC 713 the proposition and circumstances were entirely different. The trial before the Sessions Judge against accused was concluded and was fixed for announcement of judgment. At that point of time one of the accused filed an application praying for a direction to trial court not to deliver the judgment until the decision of cross case pending in the court of Magistrate. It was allowed by the High Court on the reason that it was desirable that two cross cases were to be tried side by side in order to avoid conflict of judgments. The apex Court reversed the decision of High Court by observing as under: - i. It is the general practice to try the counter cases side by side by the same Court till their conclusion and to pronounce judgment in each case simult aneously , it cannot be said that this is an absolute rule to be adhered to strictly in every case. ii. The special facts and circumstances of a particular case may warrant a different procedure for the ends of justice. iii. In the present case, special circumstances are there for which the judgment in the challan case whose trial has already come to an end should not be postponed till the comp letion of the hearing of the complaint case. 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 applicatio n under section 561-A was made in order to prevent the delivery of the judgment in that case. iv. The complaint case is triable by a Magistrate of the First Class invested with the powers under Section 30 of the Code. That being so, the complaint case in question may not be at all committed to the Sessions. v. Not a single witness has been examined so far in the complaint case pending since 1965. vi. The Court of Sessions having already completed the trial of the challan case need not in the attending circumstances of that case wait till the completion of the trial of the complaint case. vii. In fact accused in challan case made no grievance that ever about the prejudice to be apprehended by them.
13. Similarly in Khair Din vs. Inayat and another 1974 SCMR 140 the circumstances were the same as in Muhammad Sadiq' s case that one case was pending before a Magistrate and the murder case was subjudice in the court of Sessions. The High Court while relying on Muhammad Sadiq' s case directed that Magistrate should wait till the conclusion of murder case.
14. Reference to Ghulam Hussain & others vs. The State & others PLD 2020 SC 61 it has no relevancy to the proposition before us as in that case it was concluded and declared that for an action or threat of action to be accepted as terrorism within the meanings of section 6 of the Anti Terrorism Act, 1997 the action must fall in subsection (2) of Section 6 of the said Act and the use or threat of such action must be designed to achieve any of the objectives specified in clause (b) of subsection (1) of section 6 of that Act or the use or threat of such action must be to achieve any of the purposes mentioned in clause (c) of subsection (1) of section 6 of that Act.
15. It appears that learned counsel for petitioner is under an impression that as the cases are to be tried by ATC therefore petitioner has also to face the charges under any of the schedule offences. It is not the correct position because the cases against petitioner and others were sent back to ATC not for the reason that these are exclusively triable by that court but only by following the rule of propriety so as to avoid the conflict judgments. It must not go unnoticed here also that the cases against petitioner and others were not pending in the court of any Magistrate but were in the court of an Additional Sessions Judge D.G Khan so question of losing one right of appeal also does not arise.
16. Even in the State vs. Hussain & others PLD 2001 Lahore 465 relied by learned counsel for applicant it was not held that in all circumstances cross cases are not to be tried by same court but it was observed that: - "It may be observed here that the rule that two or more cases pertaining to the same incident but advancing different versions thereof should ordinarily be tried together and before the same Court is only a rule of propriety and not one of any statutory requirement. It goes without saying that a rule of propriety cannot be inflexible because a situation may arise where adherence to a rule of propriety may be an impossibility as is the situation in the present case"
17. Fact remains that in all the referred precedents there is consensus on the principle that cross cases those are outcome of one and the same occurrence are to be tried by one and the same court unless there are compelling circumstances to do otherwise.
18. Concluding the discussion made above we find no worth and merit in this application hence it is dismissed.