1. M. R. KHAN, J.--This appeal, by special leave, is directed against the order of a learned Single Judge of the Lahore High Court under section 561-A of the Code of Criminal Procedure staying the pronouncement of the judgment by the Sessions Judge, Rahimyar Khan, in the case of State v.
2. Wasoo and others.
3. The application under section 561-A of the Code was made by Hakim Taj Muhammad (respondent No, 2 herein) who was one of the accused persons in State v. Wasoo and others. The facts leading up to the filing of that application were as follows : One Atta Muhammad lodged First Information Report on the 4th February 1965 under sections 148, 302/307/149 of the Pakistan Penal Code, against 13 persons including Hakim Taj Muhammad for forming an unlawful assembly with deadly weapons in Chak No, 44/P, Tehsil Khanpur and for causing the murder of Sabir Hussain and injuring eight other persons. After completing the investigation, the police challaned 8 out of 13 accused persons. Of these 8 accused persons, 5 were injured by gunshots said to have been fired by Fayyaz of the deceased party in self-defence. The accused who had sustained injuries were Wasoo, Abdur Rashid, Yousuf, Younus and Shafi. The Sub- Divisional Magistrate, Liaqatpur, however, discharged all the 8 accused persons challaned in this case. On revision, the learned Sessions Judge, Rahimyar Khan directed commitment of all the 13 accused persons against whom the First Information Report had been lodged. Some of the accused persons moved the High Court in revision. A learned Single Judge accepted the revision of only Nur Muhammad and discharged him, but dismissed the revision in respect of the rest. The trial of the challan case thus proceeded before the Sessions Judge against Wasoo and 11 others for offences under sections 148, 302/307/149 of the Penal Code. The trial of this case was concluded and arguments of both the parties were heard on the 21st and 22nd December 1970, and the 5th of January 1971, was fixed for the delivery of judgment. Meanwhile, Hakim Taj Muhammad filed the application under section 561-A of the Code of Criminal Procedure on the 31st December 1970, praying for a direction on the trial Court not to deliver judgment in State v. Wasoo and others until after the hearings of the counter-case arising out of the same occurrence, pending in the Court of the Sub-Divisional Magistrate, Liaqatpur at Camp Khanpur.
4. The counter-case is a complaint case. Abdur Rashid, one of the accused persons in the challan case lodged a counter F.
1. R. on the 4th February 1965 under sections 148 and 307/149 of the Penal Code, against Muhammad Salim and others arising out of the same incident as in the challan case. After completing the investigation, the police found no merit in the counter-case and recommended for its cancellation. Thereafter, Muhammad Siddiq filed a private complaint against Muhammad Salim and 11 others under sections 148 and 307/149 of the Penal Code, in the Court of the Magistrate First Class, Khanpur. The accused in the complaint case are Muhammad Salim, Muhammad Yousuf, Muhammad Yaqub, Muhammad Hussain, Ibrahim and 7 others. These five accused were said to have inflicted injuries on Abdur Rashid, Yousuf and others on the side of the complainant. It was alleged in the complaint that Yousuf, in self-defence, opened fire killing Sabir Hussain, the deceased in the challan case. On this complaint, the Magistrate, by his order, dated the 3rd March 1966, summoned certain persons including some of the prosecution witnesses in the challan case under sections 148, 307/149 of the Penal Code. This complaint case has been pending in the Court of the Magistrate since 1965, and no witness on the side of the complainant has been examined so far.
5. In this state of things, the application under section 561-A was filed after the conclusion of the hearing of the sessions case State v. Wasso and others with the prayer to direct the Court of Session not to announce the judgment in the challan case until after the conclusion of the hearing of the complaint case. This prayer was allowed by the learned Single Judge for the reasons stated in h s order, dated the 12th April 1971, which runs thus :-- "It is no doubt true that each case has got to be decided in the light of the evidence before the Court. Nevertheless in the circumstances explained above, it would have been almost desirable if these two cross-cases were tried side by side in the same Court in order to avoid the danger of any conflict of judgments in them and also with a view to avoid any possible prejudice to the accused who may be found guilty even before his whole case was fully heard.
6. Under the peculiar circumstances in the interest of justice judgment is, therefore, necessary to stay the pronouncement a his judgment by the learned Sessions Judge, Rahimyar Khan reserved in the above case 'State v. Wasoo and others' for the present."
7. This order which is under appeal now made by the learned Single Judge having regard to the views of the various High Courts in regard to the procedure for the trial of counter-cases. The cases relied on by him are 24 Cr. L J 940, AIR 1934 Lab. 458, 26 Cr. L J 65, AIR 1930 Mad. 190, AIR 1936 Lah.
8. 356, AIR 1944 Bona. 146, PLD 1962 Dacca 576 and 1970 P Cr. L J 448.
9. The generally accepted view as regards the procedure for the trial of the counter-cases was summed up by a Division Bench of the Bombay High Court in AIR 1944 Born. 146 as follows : "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 different assessors or juries. The first case should be tried to a conclusion and the verdict of the jury or the opinion of the assessors taken. But the Judge should post-pone judgment in that case till he has heard the second case to a conclusion, and he should then pronounce judgments separately in each case. He would of course be bound to confine his judgment in each case to the evidence led in that particular case and would not be at liberty to use the evidence in one case for the purpose of the judgment in the other case and to allow his findings in one case to be influenced in any manner to the prejudice of the accused by the views which he may have formed in the other case.
10. It would be obviously necessary that he should try the two cases in quick succession one after the other. It may be that in some particular cases he might feel some difficulty about trying both cases and in such a case it would always be open to him to get the second case transferred."
11. The order of the learned Single Judge, no doubt, finds supports from the view quoted above, but this is not an absolute rule to be followed in the trial of a case and its counter-case. The Code of Criminal Procedure is silent with regard 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 as laid down in AIR 1944 Born. 1946. Even the learned Judges of the Bombay High Court observed: "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."
12. In AIR 1932 Mad. 502, the Madras High Court, while accepting the soundness of the procedure for the trial of counter-cases by the same Court side by side, stated that there may be a departure from this procedure in the facts of a particular case in order to avoid delay and possible miscarriage of justice. In the case reported in AIR 1932 Mad. 502, the challan case had been committed to the sessions, but the counter-case based on a private complaint which was triable by a Magistrate was pending in a Magistrate's Court. The Magistrate proceeded with the trial of the complaint case, but he subsequenly changed his mind and committed that case also to the sessions. As, however, there were certain special circumstances in that case, the High Court quashed the commitment and directed the trial of the complaint case by the Magistrate himself. In AIR 1925 Cal. 1260, the Calcutta High Court took the view that the Code of Criminal Procedure being silent with regard to the procedure for the trial of counter-cases, it should not laid down as an absolute rule of law that a particular course must be adopted. Each case, in the opinion of that Court, has to be decided according to its requirements.
13. 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 case simultaneously, it cannot be said that this is an absolute rule to be adhered to strictly in every case. The special facts and circumstances of a particular case may warrant a different procedure for the ends of justice. 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 completion 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 application under section 561- A was made in order to prevent the delivery of the judgment in that case.
14. The complaint case being one under sections 148 and 307/149 and the penalty imposable under section 307, in the facts of that case, not being death, is triable by a Magistrate of the First Class invested with the powers under section 30 of the Code of Criminal Procedure. Mr. Nasim Hassan, learned counsel for the respondent No, 2 concedes that in this region the cases under section 307 of the Penal Code not involving the death penalty are usually tried by the Magistrates invested with the powers under section 30 of the Code of Criminal Procedure. That being so, the complaint case in question may not be at all committed to the Sessions, a Section 30 Magistrate himself being competent to impose adequate sentence. Another important fact is that not a single witness, as conceded by Mr. Nasim Hassan, has been examined so far in the complaint case, although it has been pending from as early as 1965. A Magistrate, before whom a counter-case is pending, being inferior to the Court of Session should normally await the decision of that Court. The Court of Session 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. If the accused persons in the complaint case are not committed to the Sessions on the ground of the Magistrate's own competency to inflict adequate sentence or if the complaint case ends in a discharge or acquittal, the Sessions Court will be unnecessary deferring its judgment in the challan case without any real advantage. If, however, the pronouncement of the judgment in the challan case is at all postponed, it may ultimately happen that by the time the complaint case has come to an end, the Sessions Judge may not be available on account of his transfer from the station or retirement or for some other reason. In such a case, a de novo trial of the challan case shall be necessary, but, by then, all the important prosecution witnesses may not be available for one reason or the other with the result that the possibility of the failure of justice cannot be ruled out. All these considerations appear to out weigh the possibility of a conflict of decisions in the two cases and the prejudice apprehended by the accused persons in the challan case. In fact, the accused persons in the challan case made no grievance whatever about the prejudice said to be apprehended by them and defended themselves in the trial of that case without any objection.
15. In support of this appeal, learned counsel for the appellant has cited the cases reported in AIR 1930 Lah. 312 and AIR 1932 Lah.
168. In 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 AIR 1932 Lab.
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.
16. For the reasons already stated, we do not find any justification for staying the pronouncement of the judgment in the challan case. In the result, we allow this appeal, set aside the order of the High Court and direct the trial Court to prepare its judgment in the case State v. Wasoo and others and pronounce it as early as possible.