Rafaqet Ali petitioner is one of the accused in case F.I.R. No. 85, dated 22-4-1883 under sections 302, 326, 324 and 452/148/149, P.P.C. Police Station, Kahna, District Lahore, pending in the Court of Ch. Iftikhar Hussain, Additional Sessions Judge, Lahore. The petitioner is also a complainant in a case under section 307/148/1499, P.P.C. Pending in the Court of Malik Muhammad Zawar, Magistrate Section 30, Lahore. He has filed the present petition under section 526, Cr.P.C. For transfer of the aforementioned case to the Court of Ch. Iftikhar Hussain, Additional Sessions Judge, Lahore.
2. Briefly stated, the relevant facts giving rise to the present petition are that in the occurrence which took place in the haveli/Dera of Hidayat Ali son of Ismail within the area of village Budhwar, on 22-4-1983 at about 4-00 p.m. Three persons from the petitioner's side and three persons belonging to Hidayat Ali's party were injured both the petitioner and Hidayat Ali approached the police and got registered cases according to their versions. The petitioner told the police that on 22-4-1983 at about 4-00 p.m. He, his brother Saeed Akhtar and .One Allah Ditta son of Waris All were cutting fodder from their field when they heard the noise of Mansab Ali son of boor Muhammad, who was grazing his cattle in the nearby field. They saw that Mansab Ali was being given beating by Hidayat Ali and his sons Maloka, Karamat Ali. Amanat Ali, Akram and Aslam. They were also dragging Mansab Ali for taking him to their house. The petitioner and his companions rushed towards Mansab Ali to rescue him, but before they could do so Hidayat Ali and his sons succeeded in taking Mansab All into their Dera. When the petitioner and his companions tried to rescue him they were attacked by Hidayat Ali and his sons. Maloka attacked the petitioner with a spear and inflicted injury on his left arm when he tried to ward of the blow aimed at his chest.
Petitioner's uncle Noor Muhammad, who had also joined him on hearing his alarm, received injury on his right hand when he tried to save himself from the spear blow of Maloka. Azmat son- of Noor Muhammad, who too had reached the place of occurrence alongwith his father on hearing the alarm raised by the petitioner was injured with Takwa by Azmat Ali son of Hidayat Ali. On the above statement of the petitioner, F.I.R. No. 84 under sections 307, 342/148/149, P.P.C. Was registered by the police against Hidayat Ali and his sons. Hidayat Ali, on the other hang, informed the police that the petitioner, his father Hasan Muhammad, his uncle Noor Muhammad and his sons Karamat, Azmat and Baboo attacked his son Maloka in his haveli as he had abused Mansab Ali son of Noor Muhammad for his giving slaps to his son Sane Ullah, who had asked Mansab Ali to drive away his cattle from the Shaftal field. Hasan Muhammad gave a spear blow to Maloka in his abdomen while Baboo and Azmat gave Sota blows to Mst. Allah Wasai were of Maloka when she tried to rescue her husband. Karamat injured Amanat with hatchet blows and Azmat caused injuries to him with Sota blows. According to Hidayat Ali, the petitioner and Noor Muhammad, who were armed with pistol and gun, respectively, fired shots threatening the persons present at the place of occurrence kept aloof. F.I.R. No. 85 under sections 307, 452/148/149, P.P.C. Was registered against the petitioner and his party by the police on the above statement of Hidayat Ali. Eight days after registration of tile case, Maloka died in the hospital whereupon charge under section 302, P.P.C. Was also added by the police.
3. The police, after investigating the case, challaned the petitioner and his party to stand trial under sections 302, 32ti, 324, 452/148/149, P.P.C. And got the other case, registered on -the statement of the petitioner, cancelled.
4. After cancellation of the case, the petitioner filed a complaint under sections 307, 148/149/324, P.P.C. Against Hidayat Ali and his sons in the Court of Ilaqa Magistrate, who after considering the preliminary evidence produced by the petitioner, summoned them to answer the charge under sections 307/148/149, P.P.C.
5. Meanwhile the case against the petitioner and his party was sent to the Court of Session for trial.
Before the commencement of trial the petitioner has moved this Court for transfer of his case pending in the Court of Ilaqa Magistrate to the Court of Session so that both the cases are tried by one Court. According to the petitioner, separate trial in these cases in different Courts are likely to result in conflicting decisions by the Courts. Even otherwise, the case of the petitioner and his party is likely to be prejudiced if the petitioner's complaint case is not heard by the Additional Sessions Judge to whom the case against the petitioner and his party has been entrusted for disposal.
6. Petitioner's application for transfer of case has been opposed by Hidayat Ali and his five sons, who have been summoned as accused in the, complaint case. Learned counsel for the respondents has contended that there is no provision in the Code of Criminal Procedure, 1898 under which the petitioner's complaint case pending before a Magistrate legally competent to try the same, should be transferred to the Court of Session for trial. Petitioner's apprehension 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. In this connection he hag referred to the decisions of this Court in Emperor v Karam Singh AIR 1930 Lah. 312 and Emperor v. Nathu AIR 1932 Lah. 168 and has relied on the following observations made in the last case:-- "An apparent connexion of a case under section 326 Penal Code, with a case under section 302 is no ground whatsoever for committing it to the Sessions Court when the offence involved is triable and can be adequately punished by a First Class Magistrate and one exercising powers under section 30, Criminal Procedure Code. If the object of the Magistrate is to avoid a possible conflict of decisions it can be achieved by awaiting the result of the Sessions trial in the case under section 302."
7. Learned counsel has also relied on the decision of the Supreme Court in Muhammad Sadiq v. The State PLD 1971 SC 713 and has referred to the following observations made at page 719:-- "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 circum--stances 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 own competency to inflict adequate sentence or if the complaint case ends in a discharge or acquittal the Sessions Court will be unnecessarily 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 outweigh the possibility of a conflict of decisions in the two cases and the prejudice apprehended by the accused persons in the challan case."
8. Learned counsel for the respondents has stated that there is no substance in the petitioner's contention that the case against him and his co-accused would be prejudiced if the trial of the complaint case and the challan case is not held simultaneously in the same Court because trial of these cases in different Courts is neither illegal nor improper. On the other hand the respondents would be adversely affected if the complaint case is tried by the learned Additional Sessions Judge as in case of conviction, they would be deprived of their right of appeal to the learned Sessions Judge and to move the High Court under section 439, Cr.P.C. In the event of dismissal of the appeal by the Sessions Judge.
9. Learned Additional Advocate-General, who has appeared on behalf of the State, has stated that there is no hard and fast rule regarding the trial of cross-cases as there is no express provision in the Code of Criminal Procedure, 1898 dealing with the subject. Rule of prudence, however, requires that cross-cases should be tried together by the same Court unless it is found that by following such procedure any party is likely to be prejudiced at the trial.
10. 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, prosecutes 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, 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. In this case both the parties involved in the fight were challaned and were sent up for trial to the Court of Session. Two members of the party were convicted under section 302 and sentenced to death while three persons from the other party were convicted under section 147. Although the convictions were set aside by the High Court on the ground that the learned trial Judge had committed illegality by using evidence of one case in the other, the trial of cross-cases by the Sessions Judge was not questioned by any party in the High Court. Similarly, Hayat and others v.
Emperor AIR 1928 Lah. 380 is another instance where cross-cases out of which one was not exclusively triable by the Court of Session, was tried by the Sessions Judge and no exception was taken to such trial by anyone. Khair Muhammad Pir Wali Muhammad and others v. Emperor AIR 1940 Lah. 466 is another reported case in which cross-cases arising out of one occurrence were tried by the Sessions Judge. It may be noticed that in all the aforementioned cases, the High Court has only considered the irregularities committed by the trial Judge during the trial of cross-cases, but no one had raised the question that the cross-cases should not have been tried by the Sessions Judge as one of these cases was not exclusively triable by him.
11. 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 D consideration in support of such practice has been that the trial of cross-cases by one Court avoids the risk of conflicting decisions. In Banappa Kallapa Ajwan and others v. Emperor AIR (31? 1944 Bom. 146, it was observed that:- "Where rival factions which have taken part in a riot are both prosecuted the two factions must 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 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 it may result in very serious injustice, one side or the other being wrongly convicted. The most desirable procedure in such cases would be that both the cases should be tried by the same Judge, though with different assessors or juries."
PLD 1981 SC 522 it has been held 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 no warrant that the said procedure must be followed, but the rule of property 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 parties are tried by different Courts there can be a serious possibility of a conflict in judgments resulting in two different Courts' giving two diametrically opposite findings about the same incident." .
"It is one of the cardinal principles that the two counter-cases arising out of the same occurrence should be tried and disposed of by the same Court simultaneously one after another for the sake of convenience. The two counter-cases having arisen out of the same occurrence, the ends of justice require that both the cases should be tried simultaneously one after another, weighing the evidence of each case independently without mixing and using the evidence of one in another:-- "it is true that there is no express provision in the Code of Criminal Procedure for adopting such a procedure in disposing the counter-cases but this has been a long-established practice for the sake of convenience and I find no reason to differ from that practice which has the usage of law There is of course no bar in law to the cases being tried by two different Courts but such a procedure is always open to risk of conflicting finding."
12. The view expressed in Emperor v. Nathu and others AIR 1932 Lah. 168, referred to by learned counsel for the respondents, does not appear to have been followed in subsequent cases, as in Khair Muhammad's case, referred to above, no exception was taken to the trial of cross-cases by one Court. Even otherwise, the question for determination in Nathu's case was whether the Magistrate was justified in committing a case to the Court of Session which otherwise was triable by him on the ground that prosecution story in the case could not be separated from the murder case pending in the Court of Session without considering merits of the said case. The question of transfer of the case from the Court of Magistrate to the Court of Session, so that both the cases be tried by the same Court, was not considered by the Court.
13. There is no legal bar to the cross-cases being tried by two different Courts and if no steps are taken for transfer of the case pending in the Court of Magistrate, to the Court of Session, it is necessary that trial in these cases should be held in such a way that, there should be no conflicting decisions in the two cases. This can be done by postponing the trial of the case pending in the Court of Magistrate till decision of the other case pending in the Court of Session. This course was approved in the case of Muhammad Sadiq v. The State PLD 1971 SC 713, where prayer for postponing the pronouncement of judgment by the Sessions Judge in the case tried by hits till the hearing of counter-case initiated on a complaint was concluded in the Court bf Magistrate was disallowed and it was observed that it was the Magistrate before whom the counter-case was pending, who should normally await decision of the Sessions judge in the case pending in his Court. Similar course was followed in Khair Din v. Inayat and another 1974 SCMR 140, where the High Court's Direction to the Sessions Judge to conclude trial of the case pending in his Court expeditiously and staying the proceedings in section 307 case till conclusion of the trial of the Session case, was approved. It may be noticed that in both the cases, neither the accused nor the complainant had taken any steps for transfer of the case pending is these was Magistrate to the Court of Session. In Muhammad Sadiq' only at conclusion of the trial they had approached the High Court with a request for postponement of the decision in the Session case till conclusion of hearing of complaint case by the Magistrate. This request, however, was not considered reasonable as it was observed:-- 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 comp 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 be available for one reason or the other with the result that the possibility of the failure of justice cannot be ruled out."
14. The practice regarding trial of counter-cases by the same Court was approved in the aforementioned case and it was laid down that:- "While it is the general practice to try the counter-cases side, by side by the same Court till their conclusion and to pronoun; 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 far the ends of justice."
The above view was followed in Abdul Rehman's Bajwa v. Sultan a--nd 9 others and it was added that the general practice of trial counter-cases by the same Court was founded on sound principle inasmuch as it avoided the possibility of a conflict in judgments if the case were tried by the different Courts.
15. In the present case, the petitioner has moved this Court for transfer of the complaint case pending in the Court of Magistrate Section 30 before commencement of trial in the case against him and his co-accused pending in the Court of the learned Additional Sessions Judge. There is no doubt that the complaint case has also arisen out of the same) occurrence which forms the basis of the case registered against the' petitioner and his co-accused, vide F.I.R. No. 85, dated 22-4- 1985, The petitioner had narrated his version of the occurrence to the police) prior to registration of F.I.R. No. 85, dated 22-4-1983 against him and, his co-accused. It was only after the police had got F.I.R. No. 84/831 cancelled that complaint was filed by the petitioner in the Court of Ilaqa Magistrate on the basis of preliminary evidence produced by the IF petitioner before the Magistrate, the respondents were summoned asp accused to stand trial under sections 307/148 and 149, P.P.C.'
Undoubtedly, the petitioner's version of the occurrence would be considered by the learned Additional Sessions Judge, even if the complaint case pending in the Court of Magistrate is not transferred to his Court. However, it would be more convenient to the parties and I would also be in the interest of justice that the, two cases are tried by the learned Additional Sessions Judge. This would also be in consonance, with the generally established practice based on sound rule of prudence, that conflicting decisions in counter-cases arising out of one occurrence) should be avoided.
16. Respondents apprehension that the trial of case against that petitioner and his co-accused is likely to be adversely affected if the complainant is also tried by the learned Additional Sessions Judge, is, not well-founded, because the trial in both the cases would be separate' and the evidence recorded in one case will not be used or considered in the other case. Similarly, there is no force in the respondent's the case of transfer of the complaint case to the contention that to Court of Session, they would be deprived of their valuable legal right of seeking intervention of the High Court under section, 430, Cr.P.C. In case they are convicted by the Magistrate and their appeal against) the order of conviction is dismissed by the Sessions Judge because the revisional powers of the High Court vested in it by section 435, Cr.P.C. Do not create any right in the litigant as the object of these provisions is to confer a kind of paternal or supervisory jurisdiction to correct miscarriage of justice, in matters coming up for adjudication before the criminal Courts. As long as the respondents right of appeal remains intact, they should have no objection to the trial of their case by the Additional Sessions Judge.
For the foregoing reason, the petitioner's prayer for transfer of case Rafaqat Ali v. Hadayat Ali and others under section 307/148/149, P.P.C. Pending in the Court of Mr. Zawar Ahmad, Magistrate to the Court of Ch. Iftikhar Hussain, Additional Sessions Judge, Lahore is allowed.