Brief facts of the case are that case FIR No.501/2021 was registered under sections 324, 148 & 149 PPC. During the occurrence Allah Ditta got injury, against that particular case the cross version was registered. Police after completing investigation, prepared report under section 173 Cr.P.C. and both parties were challaned. This particular case is now pending adjudication before learned Magistrate Section-30 Minchinabad. During the interregnum, the injured of the occurrence died, being dissatisfied with the police investigation the complainant of the FIR filed a complaint. The complaint was entrusted to the court of Mr. Abdul Qadoos, Additional Sessions Judge Minchinabad.
Accused were summoned, as the occurrence totally relates to case FIR No.501/2021 Police Station Minchinabad. In the complaint case, trial court summoned the judicial record of case FIR No.501/2021 from the court of learned Magistrate. The instant petition has been filed and through which it has been averred that the learned trial court could not have summoned the record of case FIR No.501/2021; further submits that the summoning of record tantamount to transfer of criminal case from one court to another and this jurisdiction can only be exercised u/s 528 Cr.P.C and not otherwise.
2. Learned law officer duly assisted by counsel for the respondent No.2 contended that the learned trial court has rightly exercised the jurisdiction in the matter and has summoned record of case FIR No.501/2021 as this is the relevant record for the determination of the pending trial.
3. Heard. Record perused.
4. The learned trial court has power to summon record under Section 94 of the Cr.P.C. which reads as under :- "Whenever any Court, or, any officer-in-charge of a police-station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document, or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order"
5. A bare reading of section 94 shows that there is no limitation as to the stage of the inquiry or trial when a court can, in the exercise of its power under this section, make an order for the production of any document. The only condition for the exercise of the power under section 94 Cr.P.C is that the production of the document must be necessary or desirable for the purposes of the inquiry or trial before the court. The word 'whenever' in section 94 clearly indicates that a court can exercise the power of requiring the production of any document under this Section at any stage of the inquiry or trial.
6. Further, section 94 does not restrict as to whose point of view, whether of the prosecution or the accused, the required document may be necessary or desirable for the purposes of the inquiry or trial. A court being a neutral arbiter does not act for either the prosecution or the accused but for the dispensation of justice. And for the dispensation of justice, the court is to ascertain the truth in respect of the matter under inquiry or trial before it. The production of a document that would facilitate the court in this regard is to be considered necessary or desirable for the purposes of the inquiry or trial. It is immaterial whether the production of such a document would support the prosecution case or the defence of the accused. Therefore, any party may at any stage of the inquiry or trial apply to the court, under section 94, for the production of a document and is entitled to its production if it satisfies the court that the production of that document is necessary or desirable for the purposes of such inquiry or trial[1].
7. In Shakeel Akhtar v. The State and others this Court determined that the word "thing" in section 94, Cr.P.C. should be broadly construed to encompass anything relevant to the offence, the production of which would promote the cause of justice. The relevant excerpt is reproduced below: "Section 94 Cr.P.C., Articles 24, 40, 59 and 164 of QSO [the Qanun-eShahadat 1984] and Rule 2 of Chapter 1-E, Volume III of the Rules and Orders of the Lahore High Court, must be given a purposive interpretation. In particular, the term "thing" used in section 94 Cr.P.C. and Article 161 of QSO must be given a broad meaning and understood to signify anything connected with the offence whose production will serve the interest of justice. In the case of Abdul Latif Aassi v. The State (1999 MLD 1069 : 2001 P.Cr.J. 548), Asif Saeed Khan Khosa J. stated that contrary to the general perception that we have an adversarial justice system, sections 245(1), 540, 428 and 561- A Cr.P.C., Article 161 of QSO and Rule 2, supra, cut over that paradigm and allow the courts to take an inquisitorial approach in certain circumstances. Therefore, in a criminal case, a trial court can rectify an intentional or unintentional lapse on the part of the complainant, the Investigating Officer or the prosecuting counsel by calling in evidence on its own if it can have a bearing on the determination of guilt or innocence of the accused person. Such authority must be granted to a criminal court in the larger interest of the community. The stage of the trial is irrelevant for this purpose. The only factor important for exercising such power is that the evidence called is relevant."
8. Bare reading of the above reveals that any document which is necessary for the purpose of the trial may be summoned by the trial Court. The term document includes record as well. There is only one exception which relates to banking documents mentioned in the first proviso the ibid Section, and those can be summoned only after fulfilling codal formalities. The learned trial court in its own wisdom has determined that both cases pertains to single incident, thus the record of the state case is imperative for determination of the complaint case and it is case of nobody here that record would not be relevant in complaint case.
9. Now, adverting to the second contention of the learned counsel that the summoning of record tantamount of transfer of proceedings. The real issue is there is one occurrence and there is a state case and a complaint case pending before two criminal Courts of different classes. The Code of Criminal Procedure is silent with respect to the procedure to be adopted in the trial of counter cases arising out of the same occurrence. It has not been laid down anywhere in the Code as an absolute rule that all charges and counter charges must be tried by the same court in the manner.
In Nur Elahi Vs. The State's case (PLD 1966 SC 708) a situation of such nature arose but the situation in hand is bit different from Noor Elahi's case because there were three accused nominated in the FIR, whereas two of them were mentioned in the Column No. 2 of the State case and an accused of F.I.R Ch. Ikram and one Banaras were accused in State case. Complainant filed a complaint and reiterated the version set forth in the complaint. The matter eventually reached before the Supreme Court and it was held that complaint case would proceed first and thereafter state case would start in the same trial. However, it is be noted that both cases, complaint and State case were murder trials and were essentially to be tried by the Court of Sessions but it is inapplicable on the case in hand as facts of cases are different.
10. In "Emperor v. Karam Singh" (AIR 1930 Lah. 312), Shadi Lal, C. J. took the view that a case triable by a Magistrate and not exclusively triable by a Court of Session should not be committed to the Court of Session merely to avoid possible conflict of decisions and the proper course in such a case is to await the result of the Sessions trial. This decision was followed by Tek Chand, J. in "Emperor v. Nathu and others" (AIR 1932 Lah. 168). In the view of the learned Judge, an apparent connection of a case under section 326 of the Penal Code with a case under section 302 thereof is no ground for committing it to the Sessions Court when the offence involved is triable and can be adequately punished by a First Class Magistrate or one exercising enhanced powers under section 30 of the Code of Criminal Procedure.
11. The Honourable Supreme Court discussed this issue in great detail in the case titled "Muhammad Sadiq v. The State and another"(PLD 1971 SC 713) wherein it has been held as under:- "While 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 simultaneously, it cannot be said that this is an absolute rule to be adhered to strictly in every case. The special facts and circumstance of a particular case may warrant a different procedure for the ends of justice A Magistrate, before whom a counter case is pending, being inferior to the court of Session should normally await the decision of that Court."
12. Facts of the matter in this case were that one case was being tried by the Court of Sessions and its counter case was pending in the Court of Sub-Divisional Magistrate, Liaqatpur at Camp Khanpur. The High Court in revision ordered to stay the pronouncement by the learned Sessions Judge and desired that both cases be tried side by side to avoid conflict. The Supreme Court of Pakistan permitted Court of Sessions to pronounce judgment and permitted not to wait for the conclusion of the Magisterial Trial.
13. This judgment was followed in "Khair Din v. Inayat and another" (1974 SCMR 140) where the circumstances were the same as one case was pending before a Magistrate and the murder case was being tried in the court of Sessions. The High Court relied on Muhammad Sadiq's case and directed that Magistrate should wait for the conclusion of Sessions case.
14. This Court in "Rafaqat Ali v. Hidayat Ali and others" (1986 PCr.LJ 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 arises 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 Magistrate 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.
15. It may be advantageous to refer to some cases decided by our courts following the Noor Elahi's case. In Syed Muhammad Hussain Shah v. Abdul Hamid and 5 others (1981 SCMR 361), the Supreme Court of Pakistan upheld the High Court's decision, following Noor Elahi's case and held that "where cross-cases arise out of the same incident but involve materially different allegations, different sets of accused, and different versions of events, both cases cannot be tried jointly under section 239 of the Criminal Procedure Code. In such circumstances, the complaint case- which is typically filed after the police challan should be taken up for trial first". In Mumtaz and 3 others v.
Mansoor Ahmad and another (1984 SCMR 221) by following the procedure outlined in Noor Elahi v. the State (PLD 1966 SC 708), the Apex Court observed that when there are parallel proceedings of a police challan case and a private complaint arising from the same incident involving the same accused and allegations, but the police have added or substituted some accused in their report who are not mentioned in the complaint, the proper procedure is to try the private complaint case first. In Karim Bakhsh v. Zulfiqar and 4 others (1997 SCR 334), the Supreme Court of Pakistan held that "the complaint case should be tried first does not apply rigidly to all cases and is not a declaration of law. It should only be followed when facts justify it, especially to avoid prejudice".
16. From the above survey of case laws it is clear that Magisterial trial cannot take precedence over Sessions trial and has have to wait for the conclusion of the later or there are a few instances when Magisterial trials have also been transferred to the Court of Sessions.
17. So above analysis clearly reveals that trial court can certainly summon the record and only pre- condition to invoke the Section 94 Cr.P.C is that the court is to be satisfied production of documents or thing which is necessary for just decision of the case. Moreover, scope of section 94 Cr.P.C is very wide[2] and word whenever suggests that the court could exercise powers conferred to it at any stage or inquiry or trial. It is not the case of the petitioner that the record so summoned by the learned trial court is not necessary for determination of the trial. Moreover, relying upon case laws titled as "Muhammad Sadiq v. The State and another"(PLD 1971 SC 713) and "Khair Din v. Inayat and another" (1974 SCMR 140) that trial of sessions would complete and during the interregnum the trial of the counter case pending before the learned magisterial court would await the decision of the sessions trial.
18. In view of the above, no interference is required. The Criminal Revision in hand is dismissed in the above terms.
1. 2023 SCMR 1676 The State Vs Chaudhary Muhammad Usman
2. Muhammad Asif Ali Usama v. The State and 2 others ( 2022 P Cr.LJ 59)