1. ' This is a revision application whereby the applicant All Sher has called in question the order of the Ist Additional Sessions Judge, Nawabshah dismissing his direct complaint. The applicant's case in the direct complaint is that on the night between 5th and 6th of September, 1983 he accompanied by his brother Noor Muhammad alias Nooral, Ghulam Haider and Abdul Hakeem went to take their turn of water for their fields. At about midnight while Nooral was on round of watercourse, his companions heard his cries and gun shots from the side of tube-well culvert. They ran towards that direction and saw on the torch light that five persons namely Bashir, Ghulam Shabbir, Muhammad Bachal, Husain and Ali Hasan, Tunios by caste were carrying away Nooral across the said culvert. They further saw that two of the accused party namely Sadiq and Bachal were armed with guns and the others had hatchets. It was also noticed by them that Sadiq, the accused's own man was also injured and he too was being carried away by them. The applicant/complainant and his witnesses raised cries but did not pursue the accused because of threats held out by them.
2. The direct complaint further shows that the accused took Nooral to their village which is situated at a distance of few 'Athas'. The complainant and his witnesses found that the hatchet and torch belonging to Nooral were lying on the ground where some blood was also noticed by them.
3. Ultimately they came back to their village and narrated the facts to Wadero Muhammad Ishaque and others. At about dawn time the complainant went to lodge report at the police station. He, however, found some influential persons of the accused's side already sitting there. The police, according to the complainant's allegation, declined to register the complainant's report. On the contrary he and his relatives were detained by police. The complainant came to know that accused party had managed to have them involved in a false theft case. He also learnt that one of the accused Ghulam Shabbir was Sub-Inspector in Anti-Corruption Department, therefore, the police was reluctant to take action against him and his party. The direct complaint further shows that it was after the release of the complainant from the police custody that he sent telegram to High Officers. When he did not succeed in such efforts he was constrained to file direct complaint.
4. As stated in the direct complaint the relations between the parties were strained prior to the aforesaid incident as a fight had taken place between them in which Ghulam Muhammad from the complainant side and Sikandar from accused's side were killed and the cases relating to their murders were pending.
5. ' After holding the preliminary inquiry the learned Additional Sessions Judge dismissed the direct complaint by the impugned order, though the case challaned in Court on the basis of F.I.R. Lodged with police was still pending. After hearing the learned counsel for the parties the Revision Application was allowed by short order dated 5-5-1985 and consequently the impugned order was set aside. The following are the reasons in support of the said short order.
6. ' It was first contended by the learned counsel for the applicant that the trial Court erred in disbelieving the sworn testimony of the complainant and his two witnesses particularly when it was admitted by the accused party that they had killed Noor Muhammad. He further submitted that even though Nooral had received three injuries, the F.I.R. In the counter case of the accused disclosed only one injury on his person and thus attempt was made by the accused party to suppress the true facts. He also urged that when two counter-versions are put forward it would be in the interest of justice that both the cases arising from the said versions be decided simultaneously.
7. ' On the other hand the learned counsel for the private respondents saw no defect in the impugned order which according to him was based on correct appraisal of evidence available on the record.
8. The learned counsel vehemently opposed the view that the trial Court cannot embark upon detailed examination of the evidence at the stage of preliminary inquiry and record definite finding as to guilt or innocence of accused. He also did not think it necessary for the Court to decide two cross cases simultaneously. The learned counsel for the respondents further submitted that the direct complaint filed by the applicant cannot, in strict sense, be regarded as counter version of the incident disclosed in the police case. He further submitted that the delay in lodging direct complaint is indicative of the fact that it was filed only as a shield against the police case. Finally the learned counsel contended that normally High Court does not interfere with the order of the lower Court based on factual premise in exercise of its revisional jurisdiction.
9. ' First of all it has to be examined whether the two versions, one given in the direct complaint filed by the applicant and another in the F.I.R. Lodged by the respondents' side relate to one and the same incident or they speak of two entirely independent occurrences. It is an admitted position that occurrence took place on the night between 5th and 6th September, 1983 in which Nooral from the applicant's side and Muhammad Sadiq from respondents' side lost their lives and Bashir Ahmad also from respondents' side sustained injuries. The case of the respondents who were first to bring the occurrence to the notice of the police is that Nooral accompanied by two persons came to commit theft from the respondents' house but while they were attempting to cross the hedge around the house the timely arrival of Bashir and his deceased brother Sadiq, frustrated their attempt. However, when Bashir Ahmed and Sadiq shouted at Nooral and his companions, Nooral fired a pistol shot which hit Sadiq and in reply the gun shot fired by the latter hit Nooral who fell down. Thereafter Ghulam Qadir, Nooral's companion gave hatchet blow to Muhammad Sadiq and the other companion whose name was not known caused hatchet injuries to Bashir Ahmad.
10. Thereafter the dead body of Nooral who died of the gun shot injury was carried away by his two companions who, however, abondoned the dead body at a distance of 200 paces on seeing witnesses and fled away. On the other hand the direct complaint filed by the applicant shows that soon after Nooral left to check up the flowing of water the applicant and others heard his cries.
11. When they went towards the cries they saw Nooral being carried away by five persons from whom Sadiq and Bachal were armed with guns and others had hatchets.
12. ' It appears that according to both versions the occurrence took place on the same night. The names of Nooral and Ghulam Qadir of the applicant's side and the names of Bashir Ahmad and Sadiq of the respondents' side transpire in both the versions. Again Nooral is shown to have been physicelly carried away in F.I.R. As well as in direct complaint. His dead body was not found exactly at the place where according to the F.I.R. The incident had taken place. There have been casualties of both sides as Nooral died on the applicant's side and Sadiq was killed and Bashir Ahmad was injured on the respondents' side. On the basis of this material it would not be entirely unjustified to hold that the F.I.R. As well as the direct complaint referred to one and the same incident although the parties have described the occurrence in their own way. It was yet to be determined as to which of the two versions was true or in the alternative whether neither of them could be believed for taking any positive action. Such exercise could be undertaken only by keeping both the cases in juxtaposition and deciding them simultaneously. No doubt the Court is not under legal compulsion to adopt such course because there is no law or rule compelling the Court to decide the cross cases at one and the same time. Nevertheless while deciding the case the Courts have to keep in mind the well known principle of law that justice should not only be done but it should seem that it has been done. In keeping with this principle the Courts will be well advised to avoid a course which may have the effect of prejudicing the case of any party. If counter cases are decided on different dates prejudice is bound to result and the losing party can justifiably raise the plea of prejudice in support of its claim at higher forum.
13. ' While dismissing the direct complaint the Additional Sessions Judge has made the following observations:- "In view of the above facts and circumstances I am of the opinion that the version advanced in this direct complaint much after the incident is afterthought and concocted one".
14. ' The above observations clearly show that the learned trial Judge gave his finding with regard to the version given in the direct complaint without saying anything about the truth or falsehood of the other version contained in the F.I.R. Even though the learned Judge has not expressed his views about the latter version yet. In view of his observations referred to above about the applicant's case contained in the direct complaint he may be held to have indirectly declared the version of the respondents' party as true. Such a declaration was obviously premature and was bound to prejudice the applicant's party in the police case. It appears that the learned Judge in making the above observations was influenced more by delay in lodging the direct complaint. Although the applicant has attempted to explain the delay yet the learned Judge had to examine its effect in the light of whole mass of material to be considered for arriving at definite conclusion. In my opinion it was premature to dispose of the case of the applicant on the ground of delay.
15. ' On the other hand the learned trial Judge had not given due thought to other factors which were equally important for reaching the correct decision. He had to consider if it was feasible to outright reject the evidence of applicant and his two witnesses on oath although they were not subjected to cross-examination and nothing was brought out in their evidence to show that they were either interested witnesses or their evidence was unreliable for any other reason. He also seems to have overlooked that at least one person namely Nooral had lost his life on applicant's side and that the respondents' side had yet to justify having killed him particularly when his dead body was found 200 paces away from the house where the deceased Nooral and his two companions had allegedly come for committing theft. It was also a matter for serious attention for the learned trial Court that even though they had come for committing the theft yet they were found not inside the house but outside it. The learned Judge had also to consider that despite the above position how and in what circumstances fire was exchanged and two human lives were lost, one on applicant's side and another on respondents' side as a result of the firing. It was also to be determined by the learned trial Judge if the respondents' party who went to the extent of taking life of Nooral had right of self-defence available to them particularly when the said deceased had not trespassed into their house but on the contrary his dead body was found 200 paces away from the said house. The learned trial Judge was also to look into the allegation if Nooral's companions who, according to police case were found carrying away the dead body of Nooral, would abandon the same at 200 paces away from the house of the respondents. It was also to be appreciated whether as is mentioned in the F.I.R. It was possible for Ghulam Qadir from applicant's side to have caused hatchet injuries to Sadiq who was admittedly armed with gun because in that case the question would arise if he could dare to go so closer to Sadiq so as to cause him hatchet injuries knowing that he had gun and he might shoot at him. Again if he showed his foolhardiness by going near Sadiq, what prevented the latter in foiling his attempt by firing at him as he had fired at Nooral.
16. Thus for arriving at right conclusion all the above factors are to be taken into consideration. This is possible when both the versions are before the trial Court. In such circumstances it was ill advised to make unilateral decision by deciding the fate of one case leaving the other case to be pending. I am, therefore, of the view that this is a fit case to be remanded to the lower Court as there is a scope for further inquiry. Accordingly as stated above the impugned order was set aside and the case is remanded for further inquiry to the trial Court.