' I have heard the learned counsel for the appellants, learned counsel for the complainant and learned counsel for the accused persons in the challan case, Mansha and Khushi Muhammad, on the legal objection concerning the legality of the trial of the appellants, Muhammad Bohra and Muhammad Hussain.
2. Barkat Ali deceased was killed in an incident which took place at 12.30 p.m. On; 20-8-1982 in the area of Village Dhuttaya of Police Station, Kanganpur, Tehsil Chunian, District Kasur. The incident was reported to the police by Asif Ali, a son of Barkat Ali deceased. In the F.I.R. Asif Ali claimed to have eye-witnessed the incident alongwith Muhammad Arif and Muhammad Siddique, and named Muhammad Bohra and Muhammad Hussain, appellants, and Muhammad Ashiq as culprits. Muhammad Ashiq, it should be noted here, was killed during the trial. In the police investigation, however, it was found that all the three above-named accused persons were innocent of the offence, and that the persons responsible for killing Barkat Ali were Mansha and Khushi Muhammad. Accordingly, in the final report under section 173 of the Code of Criminal Procedure the names of Mansha and Khushi Muhammad were placed in column 3 and those of Muhammad Bohra and Muhammad Hussain in column 2 of the challan. The police also recommended for the discharge of the accused persons mentioned in the F.I.R., Muhammad Bohra, Muhammad Hussain and Muhammad Ashiq, and on their report a Magistrate's order dated 9-3- 1983 was obtained discharging them. On 2-4-1983 A,sif complainant, filed a private complaint against Muhammad Bohra. Muhammad Hussain and Muhammad Ashiq; in that complaint he reiterated the facts as given in the F.I.R. And named himself, Muhammad Arif and Muhammad Siddique as the eye-witnesses.
3. Both the challan case and the complaint case were entrusted to the Additional Sessions Judge, Kasur, for trial. On 15-12-1984 an objection was raised by the appellants' counsel before the learned Additional Sessions Judge that as the accused persons in the two cases were dif.Erent, the complaint case should be tried first. The learned Additional Sessions Judge agreed and he directed the trial of the complaint case first. This shows that the learned trial Court was not only aware of the pendency of the challan case in his Court but was also aware of the procedure laid down in Nur Elahi v. 'The State PLD 1966 Supreme Court 708, to which reference will presently be made.
4. In support of his case the complainant called nine witnesses; he also tendered some documents and closed his case on 13-3-1985. On the next date viz. 17-3-1985, the statements under Section 342 of the Code of Criminal Procedure of the appellants were recorded, and the case was adjourned to 26-3-1985 for defence evidence, with the observation that the learned defence counsel wanted to submit the list of the defence witnesses. Before the next date viz. 26-3-1985, the appellants made an application praying that the persons mentioned therein should be summoned as defence witnesses. They were eight in number, namely, Muhammad Shaft, Muhammad Yaseen, Muhammad Anwar, Liaquat All Shah, Ch.Iftikhar Ahmed, S.S.P. , Syed Kafait Hussain Shah, D.S.P., Muhammad Mansha and Muhammad Tufail, H.C., of Police Station, Kanganpur. Of them, Ch.Iftikhar Ahmed, S.S.P., Kafait Hussain Shah, D.S.P., Liaquat Ali Shah, S.I. , Muhammad Tufail, Head Constable, Muhammad Shafi and Muhammad Yaseen were called and examined as D.Ws. As to the remaining D.Ws. Mansha and Anwar, the appellants made statements on 24-9-1985 giving them up as having been won over by the complainant party.
5. It should be mentioned here that all the D.Ws., other than Kafait Hussain Shah, D.S.P. , had been cited as prosecution witnesses in the challan case.
6. By the learned Additional Sessions Judge's judgment, dated 6-10-1985, the appellants, Muhammad Bohra and Muhammad Hussain, were convicted under Section 302 read with Section 34 of the P.P. C., and sentenced to life imprisonment and fine. As regards the challan case, the learned Additional Sessions Judge acquitted Mu hammad Mansha and Khushi Muhammad, accused persons, under Section 265-K of the Code of Criminal Procedure with the observation that "the complainant had not supported the version placed by the Investigating Officers in this case, and the accused named in the F.I.R, namely, Muhammad Bohra and Muhammad Hussain, have been convicted by me as mentioned above".
7. Thus, it was a case in which the prosecution case as laid in the F.I.R. And in the private complainant was the same. Briefly stated, it was that on 20-8-1982 at 12.30 p.m., the deceased alongwith Asif Ali, Muhammad Siddique and Muhammad Arif (P.Ws.) was going, when near the Dera of one Muhammad Anwar, Councillor, the accused persons, Muhammad Bohra, Muhammad Hussain and Muhammad Ashiq, emerged from a Charri crop, armed with hatchets, chased the deceased and the P.Ws. , and then near a water-course killed the deceased within the view of the P.Ws.
8. The facts as found by the police and as deposed to at the trial by Muhammad Shafi and Muhammad Yaseen D.Ws. Were that Muhammad Shafi D.W. Had seen two persons running away; that on being overtaken by Muhammad Shafi, they had told him that they had killed their enemy, Barkat Ali; that he returned to where Barkat Ali lay injured and on being asked by Anwar (he and Muhammad Sharif were also cited as P. Ws. In the challan case) as to who had caused him injuries, the deceased had said that it was Khushi Muhammad and Mansha.
9. The ratio in Nur Elahi's case is that where there are two sets of the accused persons, and the versions in the complaint case and challan case are different, then "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".
10. Kaikaus, J. Wrote a dissent and would have directed "that the two proceedings be consolidated and that there be a single hearing, that the whole of the evidence be produced before the Sessions Court and then a decision recorded".
11. If I may venture to say, the procedure which commended itself to Kaikaus, J. Has this advantage that both the sets of accused persons will be before the Court, and both will have the opportunity to cross-examine all the witnesses that are proposed to be produced in the complaint case, and the police challan case. Taking this case as an example, suppose that in the trial of the complaint case the P.Ws. In the challan case had been called and examined as Court witnesses, and the trial had resulted in the acquittal of the appellants. It is obvious that in recording the acquittal the Court would have considered all the evidence, including the evidence of the Court witnesses, whom the accused persons in the challan case, Mansh and Khushi Muhammad, had, had no opportunity to cross-examine. As the second trial, that is the trial of the challan case, would be by the same Judge, Mansha and Khushi Muhammad would, not unnaturally, go to their trial with a feeling that probably their fate has, by the verdict in the complaint case, been already sealed.
12. Nur Elahi's case was explained in Zulfiqar Ali Bhutto v. State PLD 1979 SC 53. It was held that "there was no necessity for a separate trial of the two cases when, technically speaking, there were neither two sets of accused nor different versions nor any additional evidence to be examined by the complainant. It was only to avoid prejudice to the complainant that a particular procedure was devised in the reported case of Nur Elahi, but to say that invariably it should be followed even if the facts are distinguishable is not correct, as it does not amount to a declaration of law".
13. That the present case falls squarely within the procedure laid down in Nur Elahi's case admits of no doubt. Learned counsel for the complainant as also learned counsel for Muhammad Mansha and Khushi Muhammad, however, referred to Section 537 of the Code of Criminal Procedure, and argued that as the appellants had raised no objection before the trial Court, and had themselves asked for the P. Ws. In the challan to be summoned as their defence witnesses, they cannot now be heard to say that any illegality was committed and that they were in any way prejudiced in their defence. Learned counsel for the appellants did not dispute the application of Section 537 of the Code of Criminal Procedure. He was, however, of the view that in the facts of the case the appellants should be presumed to have been prejudiced in their defence by the mere failure of the learned trial Court to follow the procedure laid down in Nur Elahi's case. On being asked as to what particular prejudice was in his view suffered by the appellants, he maintained that if the learned trial Court had followed the procedure prescribed in Nur Elahi's case, then Muhammad Anwar and Mansha would have been examined as Court witnesses, and the appellants would have had a right to cross-examine them.
14. Section 537 of the Cr.P.C. Provides that no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision on account--
(a) of any error, omission or irregularity in the complaint, report by police officer under Section 173, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or
(b) of any error, omission or irregularity in the mode of trial, including any misjoinder of charges.
' The explanation to the Section is that "in determining whether any ()Mission or irregularity in any proceeding under this Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings".
15. That Section 537 of the Code of Criminal Procedure applies to a case like this is vouched by the following observations in Zulfiqar Ali Bhutto v. State.
"Having held so, we might also point out that the objection to the trial, if any, should have been taken before the trial Bench; and not having done so, it is too late in the day to urge that it has caused prejudice to the appellant, when factually none is shown."
16. As observed above, and as it appears clearly from the learned Additional Sessions Judge's order dated 15-12-1984, referred to above, the learned Additional Sessions Judge was aware of the pendency of the challan case in his Court, yet, after the conclusion of the complainant's evidence in the complaint case he did not, as he was required to do, summon the prosecution witnesses in the challan case as Court witnesses. The appellants, are, therefore, right in complaining that the procedure laid down in Nur Elahi's case was not followed. But as has been seen above, after the conclusion of the complainant's evidence, when the learned Additional Sessions Judge adjourned the case for defence evidence, the appellants raised no objection; instead, they made an application summoning the prosecution witnesses in the challan case as their defence witnesses.
The appellants and their counsel fully knew what the requirements of the procedure laid down in Nur Elahi's case were; it was on their objection, obviously based upon Nur Elahi's case, that the learned Additional Sessions Judge had tried the complaint case first. The defence witnesses in their testimony said all that they were supposed to say as prosecution witnesses in the challan case, and, therefore, merely because they were examined as defence witnesses, it could not have made any difference to the appellants' case. In other words, their examination as defence witnesses could not possibly cause any prejudice to the appellants' case. As to Muhammad Anwar and Mansha, who were B summoned as defence witnesses but were given up as having been won over by the complainant party, their examination either as Court witnesses or as defence witnesses would not have been of any use to the appellants.
17. In this behalf reference may again be made to Zulfiqar Ali Bhutto v. State PLD 1979 SC 53, at page 77. As regards the rule of procedure laid down in Nur Elahi's case it was said that "it was only to avoid prejudice to the complainant that a particular procedure was devised in the reported case of Nur Elahi, but to say that invariably it should be followed even if the facts are distinguishable is not correct, as it does not amount to a declaration of law". This it seems to me had reference to the following observations in Nur Elahi's case: "This procedure is being suggested to avoid a difficulty that might otherwise confront the complainant. If the Police challan is taken up first for trial, the complainant would be under a handicap in so far as he would not be in a position to cross-examine the witnesses for the prosecution."
' In this view of the matter also, it cannot be said that the failure of the learned trial Court to follow the procedure laid down in Nur Elahi's case has in any way occasioned a failure of justice to the appellants.
18. For these reasons, I find no merit in the objection and dispose it of accordingly.
19. The appeal and the connected matters shall now come up on 1st November, 1988, for hearing.
Objection disposed of.