' ASLAM R1AZ HUSSAIN, J.-This petition is directed against the order of the learned Single Judge of the Lahore High Court, dated 25-1-1983, dismissing the petitioner's criminal revision against the order of the learned Additional Sessions Judge, Bahawalnagar, summoning them as accused persons in a complaint case under sections 148, 302 and 149, P. P. C.
2. The facts leading to this petition, briefly, are that Mansoor Ahmad lodged a report under sections 148 and 307/149, P. P. C. Against 9 persons, for making murderous assault on his father Manzoor Ahmad. The latter subsequently died and the F. I. R. Was converted to one under section 302/ 149/148, P. P. C. Six persons namely, Muhammad Amjad, Mahmood son of Nawab, Mahmood son of Ghulam Rasool, Sajjad, Ghulam Nabi and Mumtaz, were accused of active participation in attacking the deceased, while 3 persons namely, Muhammad Yaqoob, Ghulam Rasool and Riaz, were accused of criminal conspiracy in furtherance of which the attack in question was made.
' After the investigation the police found all the accused, except Amjad and Mahmood son of Ghulam Rasool, to be innocent. They, however, found two other persons namely Tarez alias Pervaiz and Muhammad Afzal, as being involved and sent them for trial alongwith Amjad and Mahmood, placing them in col. No, 3 of the challan.
' On this the complainant filed a private complaint against the above-mentioned 9 persons giving the same version. An inquiry under section 202, P. P. C. Was conducted by a learned Magistrate 1st Class, who found a prima facie case against the 6 accused named above who had been attributed active role, and sent them up for trial before the Court of Sessions.
3. The learned Additional Sessions Judge, Bahawalnagar thereupon issued summons to the 6 accused in the private complaint and wanted to proceed with the trial when the petitioners filed a criminal revision against the order of the learned Additional Sessions Judge, Bahawalnagar, dated 3-12-1981 summoning them as accused in the complaint case. The same was, however, dismissed vide the impugned judgment. The operative portion of the impugned judgment reads as follows :- "A case under section 302/148/149, P. P. C. Is already pending against the accomplices of the petitioners. It has been contended on behalf of the petitioners that the petitioners were placed in Column No, 2 of the challan and there was a discharge report and the learned Additional Sessions Judge could have summoned these persons in the challan case. It may be true but they are to be summoned at any stage when sufficient material to summon them is found against them. The challan case is still pending and the complaint case shall be decided first according to law. The learned Additional Sessions Judge is to see that this case does not become of double jeopardy. I see no illegality in the order summoning the petitioners on the basis of a private complaint.
' The Revision Petition stands dismissed".
' Feeling aggrieved the petitioners have filed the present petition.
4. The main contention raised by the learned counsel for the petitioners before us is that since the same persons are accused in the complaint case a in the F. I. R. And the allegations contained in it are also the same, therefore, they should be tried jointly and the learned High Court has erred in directing that the complaint case shall be decided first.
5. We have heard the petitioners' counsel as well as the learned Assistant Advocate-General who was required to assist the Court.
' We find that the learned Judge in Chamber has followed the procedure suggested by this Court in Nur Elahi v. The State , wherein it has been observed as follows :- "The question then is what should be the procedure to be adopted by the learned trial Judge in disposing of these two cases ..
' After considering all aspects of the matter, we hold 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 included in one trial and a decision could be arrived at after a proper 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...."
' No doubt in the private complaint the same 9 accused as mentioned by him in the F. I. R., have been named, and the learned Additional Sessions Judge could also, summon the accused persons shown by the police in column No, 2 as accused persons, yet in view of the fact that two new accused have been added by the police, which have not been mentioned by the complainant in the private complaint, we feel that the procedure suggested by this Court in the Nur Elahi's case would, indeed, be the appropriate procedure to be followed in this case.
' The petition is, therefore, dismissed as being without any merit. PLD 1966 SC 7081 1