KHALID PAUL KHWAJA, J:--On 27.5.1989 at 11.30 a.m a case under section 307/34 P.P.C was registered at Police Station City Sargodha against Muhammad Ashraf Nadeem and Mukhtar Ahmad accused at the instance of Khurshid Kamal complainant.
2. It was alleged in the FIR that on the same day at 10 a.m the complainant his father Kamal Ahmad and brother Tanvir Ahmad deceased were going towards Goal Chowk Sargodha, in connection with some personal piece of work. When they reached near Usman Drink Corner, suddenly, they were confronted with Muhammad Ashraf Nadeem alias Billa and Mukhtar Ahmad accused who were riding a motorcycle. The former was armed with a knife while the latter wis empty handed.
The latter raised a lalkara exhorting his co-accused to teach Tanvir Ahmad deceased a lesson for demanding money. Thereafter, Mukhtar Aitmad accused took the deceased into a Japha and placed his hand on his mouth. Muhammad Ashraf Nadeem accused then cut the throat of the deceased with his knife. On the alarm raised by the complainant and his father, Ijaz Ali and Muhammad Liaquat PWs, alongwilh many others, were attracted to the place of occurrence. They rescued the deceased from the assailants who ran away hurling threats. The deceased was removed to the hospital in a precarious condition. Motive for the occurrence was stated to be that Muhammad Ashraf Nadeem accused owed Rs.2000/- to Tanvir Ahmad deceased. A few days before the occurrence the deceased demanded the return of the said money which annoyed the said accused. The latter, therefore, threatened the former with dire consequences.
Tanvir Ahmad deceased succumbed to his injuries on 28.5.1989 at 8.30 a.m. As a result of which the case was altered into the one under section 302/34 P.P.C.
On 8.6.1989 both the accused were arrested.
4. Initially the investigation was conducted by Faiz Ahmad, Inspector Police Station City, Sargodha who on 22.6. 1989 conch aed that motive as alleged by the complainant in the FIR was not proved as that the cause of occurrence was an altercation between the deceased and Muhammad Ashraf Nadeem accused over the teasing of girls. The Investigating Officer also opined that the occurrence had not taken place in the manner as alleged in the FIR. According to him after the aforementioned altercation the deceased had hit Muhammad Ashraf Nadeem accused with an iron chair and the latter had picked up a piece of glass from a nearby shop and flung it at the deceased which hit him on his neck as a result of which he was injured. The Investigating Officer further declared that Mukhtar Ahmad accused had reached the place of occurrence after the infliction of the said injury.
5. Later on the case was reinvestigated by D.S.P City, Ch. Asghar Ali who confirmed the opinion of Inspector Faiz, Ahmad. Again the case was reinvestigated by Mehr Muhammad Nawaz-DSP Headquarter who confirmed the findings of his predecessors.
6. Inspite of the above conclusions drawn by the investigating agency, the police challaned Muhammad Ashraf Nadeem and Mukhtar Ahmad accused under section 302/34 PPC placing both of them in column No. 3 of the challan.
7. The challan was subjected to the necessary scrutiny by the office of the District Attorney. The Deputy District Attorney pointed out some infirmities in the prosecution case and stated that according to the investigation carried out by the investigating agency it was a case of sudden fight which fell within the purview of section 304 PPC and that Mukhtar Ahmad accused had not taken any part in the commission of the crime. Not agreeing with his Deputy, the District Attorney directed that the challan be submitted in court with the following remarks: "Let it be left to the court. Sent up"
8. Challan was submitted in the court of the Ilaqa Magistrate on 9.12.1989 and was received in the Sessions Court Sargodha on 4.1.1990. On 28.1.1990 the case was entrusted to an Additional Sessions Judge for trial.
9. On 11.2.1990 Khurshid Kamal complainant instituted a private complaint against the two accused on the allegations similar to the ones contained in the FIR. The accused raised an objection that in view of the pendency of challan case the said complaint could not proceed because the version, evidence and the accused were the same. This objection was repelled by the learned trial court vide order dated 17.3.1990 concluding the order the learned Addl. Sessions Judge held: "It is not out of place to mention here that procedure laid down for complaint case is yet to be completed. If the court is satisfied that there is sufficient ground for proceeding it will issue process as laid down in 204 Cr.P.C, otherwise the court will be at liberty to dismiss the complaint as empowered u/s 203 Cr.P.C, proceedings in the challan case, if necessary, will be conducted after the conclusion of the trial in the complaint case. Copy of this order will be appended with the challan case".
Mukhtar Ahmad accused has assailed the vires of this order through Crl. Revision No. 235 of 1990.
10. On 19.3.1990 the learned Addl. Sessions Judge recorded the statements of the complainant and two eye witnesses in the private complaint and on 1.4.1990 issued process to both the accused to stand trial under section 302/34 PPC. Mukhtar Ahmad accused has challenged the validity of the said order through Crl Revision No. 225 of 1990.
11. In Response to the process issued in the complaint the accused appeared before the learned trial court and requested for the supply of copies of the statements of all the witnesses examined during the investigation whether cited in the calendar of witnesses or not. Vide order dated 24.4.1990 the learned Addl. Sessions Judge refused to supply the said copies to them. Again Mukhtar Ahmad accused brought under challenge the said order of the court below in CrJ. Revision No. 234 of 1990.
12. On 26.6.1990 Mukhtar Ahmad accused filed Writ Petition No. 4807 c' 1990 urging this court to direct the concerned police officers and the prosecution branch to act in accordance with the law, sumbit report that the case against this accused persons fell under section 304 PPC, exclude the petitioner's name from the list of accused ^md send the case for trial before the court of competent jurisdiction in view of the secrutiny report/ objections raised by the Deputy District Attorney.
13. Both the accused applied for their bail in the Sessions Court. On 23.11.1989 Mukhtar Ahmad accused was admitted to bail by the learned Sessions Judge, Sargodha while this concession was refused to Muhammad Ashraf Nadeem accused who subsequently moved an application in this Court (Crl. Misc. No.4557- B-89) for his bail which was dismissed on merits by my learned brother Raja Afrasiab Khan, J. Vide order dated 8.1.1990 announced on 27.1.1990. It was given out before the learned court that the case had been fixed for trial on 25.1.1990 on which the learned trial court was directed to conclude the trial within three months. Subsequently, the learned Sessions Judge Sargodha informed the court that the case had never been fixed for trial, whereafter, on 22.5.1990, Muhammad Ashraf Nadeem accused moved fresh application (Crl. Misc. No. 2039-B-1990) for his bail. The said bail application came up for hearing before my learned brother Raja Afrasiab Khan J but later on for personal reasons, his lordship declined to hear the said application and the same alongwith connected matters was entrusted to me by the order of my Lord the Chief Justice.
14. As all the matters are interconnected and arise out of the same case I propose to dispose them of by this judgment.
Crl. Misc. No. 2039-B-1990.
15. Bail of Muhammad Ashraf Nadeem, accused petitioner is sought on the following grounds: a) that the motive, as set up by the prosecution in the FIR, had not been proved and the Investigating Officers had successively declared that the occurrence was the result of an altercation between Muhammad Ashraf Nadeem accused and Tanvir Ahmad deceased over the teasing of girls, b) that the participation of Mukhtar Ahmad co-accused had been disbelieved which casts a thick shadow of doubt on the whole of the prosecution case, c) that according to the Investigating Officers the occurrence had not taken place in the manner as narrated in the FIR, but was the result of a sudden fight, d) . That from the investigation it was established that initially the deceased had attacked the accused-petitioner who in self defence had flung a piece of glass at him which accidently hit the deceased on hit neck and caused his death, and e) that the prosecution had suppressed the injuries of the accused petitioner which indicates that the complainant party was concealing the fact that the deceased was the aggressor.
16. Learned counsel for the State vehemently opposed the bail application and submitted that the same could not be entertained in view of the dismissal of the previous bail application on merits by this court. Learned counsel for the petitioner contended that the previous bail application was dismissed mainly on the ground that the case had been fixed for trial and therefore, it could not be said that the same had been dismissed on merits.
17. Perusal of the order dated 8.1.1990, where by the previous bail application of the accused- petitioner was dismissed, reveals that almost all the grounds which have been raised in the present bail application were raised in the said application and considered by my learned brother Raja Afrasiab Khan, J. The case law which the learned counsel for the petitioner has cited before this court was also cited by him in the previous bail application. After going through the case law cited at bar and hearing the parties' counsel at considerable length his Lordship repelled the contentions raised by the learned counsel for the accused and concluded: "Apart from the above, the learned counsel has brought to my notice that the trial of the petitioner is already fixed for 25.1.1990 for recording evidence. In these circumstances, I do not at all find it a fit case for bail at this stage. According I proceed to dismiss the petition being without substance."
Thereafter, the following direction was issued to the trial court: "The trial court is directed to commence trial on 25.1.1990 and continue till it is brought to an end within next three months without fail. Compliance report shall also be sent to this court through the Registrar."
18. It is abundantly clear from the above mentioned order that the previous bail application was not only dismissed on the ground that the case had been fixed for trial but had also been dismissed on merits. In these circumstances, I have no hesitation in sustaining the objection raised by the learned counsel for the State with regard to the maintainability of the present bail application. It is an established principle of law that a fresh bail application would lie only on a fresh ground which element is missing in the present application. A ground available to an accused at the time of the first bail application but not raised, could not be considered as a fresh ground in the subsequent application for bail. Resultantly hold that the present bail application does not to in view of the dismissal of th accused-petitioner's previous bail application by this court.
19. Another argument which the leamed counsel for the accused petitioner advanced is that as the accused-petitioner has been summoned in th complaint case, the challan case would be brushed aside and as in the case q!f Mukhtar Ahmad co-accused, his client would be entitled to be released from custody on furnishing bail bonds. This submission, which was vehemently opposed by the learned counsel for the State, does not appear to be either convincing or tenable. The institution of complaint and the issuance of process to the persons complained against in the complaint case would not mean that the challan cast had been dropped or evaporated. The challan case is very much in the field and would be disposed of according to law. It is true that ordinarily in a complaint case when an accused is summoned by the court he is released on furnishig bail bonds but this bail is of no avail to him in the connected challan case. If the argument advanced by the learned counsel for the accused-petitioner is accepted it would mean that every accused in a State case would be able to get bail on manoeuvring a private complaint.
20. Even otherwise on merits it is not a good case for the grant of bail. The contentions raised by the learned counsel for the accused-petitioner would more appropriately be considered and dealt with during the trial after material evidence has been recorded.
The bail application, in view of the above discussion, is dismissed.
Crl. Rev. 234 of 1990
21. By order dated 24.4.1990 the learned trial Judge, in the complaint case, refused to supply to the petitioner the copies of the statements of the witnesses examined during the investigation of the challan case. Mukhtar Ahmad petitioner has questioned the validity of the said order. Learned counsel for the State did not oppose the revision petition for in view of the established law laid down by the superior courts, he did not find himself in a position to defend the impugned order.
Consequently the order dated 24.4.1990 is set aside and the learned trial court is directed to supply to the accused persons copies of the statements of all the witnesses examined during the investigation of the challan case.
22. Revision petition is disposed of accordingly.
Writ Petition No. 4807 of 1990.
23. Learned counsel for the petitioner has argued that where a certain thing is required to be done in a certain manner it should be done in that manner otherwise it shall be assumed that it had not been done at all and when such a lapse is found in a criminal case it would render the trial to a nullity on the basis of the principle of prejudice. He maintained that in view of the law laid down in Mazhar Hussain Vs. Ishtiaq Hussain (PLD 1990 Lahore 249) it was the duty of the District Attorney to put a criminal case into the concerned court in the best possible manner but in the present case he had not discharged his legal obligation for which a direction should be issued to him in the terms enumerated in para No.12 of this judgment. Learned counsel is of the view that instead of expressing his opinion in the words" Let it be left to the court" the District Attorney should have given definite opinion as to under what provision of law the accused were to be tried. Learned counsel urged that the District Attorney be directed to apply his mind to the objections raised by the Deputy District Attorney and submit supplementary report under proper provisions of law before a proper court without being influenced by his earlier note which amounts to abdication of hie own authority and jurisdiction.
24. Learned counsel for the State, on the other hand, maintained that that notes of the Deputy District Attorney and the District Attorney, referred to by the learned counsel for the petitioner did not form part of the court record or the judicial record which is to be submitted to the court by the prosecuting agency. Learned counsel explained that the aforementioned notes were made under Rule 27.1 (3) of the Punjab Police Rules, 1934 and relate to inter-office arrangement. She (Miss Yasmeen Saigal, Advocate) was of the view that the District Attorney had considered and rejected the opinion of the Deputy District Attorney and had very clearly given his opinion endorsing the view of the investigating agency that the case fell under section 302/34 PPC.
25. It is true that it is the duty of the prosecution branch to submit in court a criminal case for trial in the best possible manner without being influenced by the opinions or views of other agencies. In the present case I do not think that the District Attorney in his capacity as the head of the prosecution branch of the District had in any way failed to perform his duty. His note on the opinion of the Deputy District Attorney, though not elaborate, clearly shows that he had considered the said opinion and had not agreed to it. In his opinion the case as submitted by the investigating agency was to be put up under section 302/34 PPC and left to the court under which provision of law it charges the accused. He was not required to make a detailed speaking order. His note, being an office note, sufficiently shows that the District Attorney had done his duty and therefore, no direction as prayed for was necessary. Moreover, I feel that when the challan has been submitted in court the trial court should be allowed to proceed with the trial without any further loss of time.
After considering the material available on record the trial court would be free to form any opinion as to under which provisions of law the accused have to be charged. It would not be bound by the opinion of the investigating agency or the prosecuting agency. Therefore, when the opinion of the District Attorney was of not much consequence for the court it would be an exercise in futility to issue the direction prayed for at this stage. It will unnecessarily delay the disposal of the case.
Consequently finding no substance in the writ petition I dismiss the same.
Crl. Rev: No. 225 of 1990.
26. In this revision petition the petitioner has questioned the legality of the order dated 1.4.1990 whereby the accused persons in the complaint case had been summoned. Learned counsel has maintained that in view of the law laid down in Muhammad Ibrahim Vs, Qudratullah Chaudhry (PLD 1986 Lahore 256) it was the duty of the court trying the private complaint to examine the Investigating Officer or peruse the police record before making any order for the issuance of process against the accused. He submitted that as that had not been done the impugned order had been rendered illegal.
27. Conversely, learned counsel for the State contended that before making the impugned order the learned court below had duly enquired into the complaint as required under section 202 Cr.P.C, and thus had not committed any illegality. He maintained that the dictum laid down in Muhammad Ibrahim's case was not applicable in the present one for the facts of both the case were totally different.
28. A Magistrate or a court of Session can make an inquiry under section 202 Cr.P.C in any way, he/it thinks proper. The purpose of holding preliminary inquiry is to find out the truth and bonafides of the allegations made in the complaint and not to hold a regular trial to adjudge guilt or otherwise of person complained against. The court holding such inquiry has to satisfy itself if a prima facie case existed against the person complained against and as and when it attains that satisfaction, from the preliminary evidence recorded by it, it issues the process. In the present case the learned trial court had not only recorded the statements of the three eye witnesses namely Muhammad Khurshid Kamal, Liaquat Ali, Ijaz Ali but had also recorded the statement of Muhammad Yaqoob a witness about motive. The learned court had also considered the documents marked A to Z which form part of the record of the challan case and include medico- legal report and postmortem examination report of the deceased, site plan, recovery memos, statement of the complainant on the basis of which the FIR was recorded, the formal FIR etc. In my opinion the material made available before the learned Addl Sessions Judge was sufficient to satisfy him that a prima facie case existed against the persons complained against i.e. Muhammad Ashraf Nadeem and Mukhtar Ahmad. In the circumstances of the present case I am of the opinion that omission to examine the investigating officer by the learned trial court did not amount to illegality. With utmost respect I am of the opinion that the dictum laid down in Muhammad Ibrahim's case is not applicable in the present case as the facts of both the cases are totally different. For instance in the cited case the persons complained against had been declared innocent by the investigating agency during the investigation, discharged and placed in column No. 2 of the challan but in the present case both the accused have been held guilty and placed in column No. 3 of the challan. It would have been proper arid advisable to examine the investigating officer in this case if he had declared the accused persons innocent and had placed them in column No.2 of the challan, so that the court could know as to on the basis of what data the Investigating Officer had let them off.
29. The upshot of the above discussion is that the impugned order does not suffer from any illegality. The revision petition is consequently dismissed.
Crl. Rev: 235 of 1990.
30. As already pointed out earlier the accused had agitated before the learned trial court that in the presence of the challan case against them the complaint case could not proceed be cause the version, evidence and the accused were the same. Vide order dated 17.3.1990 the learned court below rejected their plea and held that although the set of accused in both the cases was the same yet the version put forth by the investigating agency in the challan case with regard to the mode of occurrence and motive was totally different from the version given in the complaint.
Perusal of the calendar of witnesses in the challan case and the list of witnesses in the complaint case would reveal that the witnesses are also not the same. Faiz Muhammad Khan, Inspector SHO City, Sargodha whose name appears in the calendar of witnesses at Sr. No. 14 has not been cited as a witness in the complaint case. Sh. Muhammad Yaqoob and Irshad Ahmad have been cited as witnesses in the complaint case with respect to motive. However, their names do not find any mention in the challan case. In this view of the matter, the learned trial court was perfectly justified in holding that both the private complaint and the challan case could validly proceed. It was also rightly held by the learned court that in case the persons complained against were summoned in the complaint case the complaint case would be taken up first. This decision has the support of Noor Elahi's case (PLD 1968 S.C. 708), Bhutto's case. (PLD 1979 S.C. 537), Abdul Hameed's case /1980 P.Cr.L.J 905 (Lahore)/, Raja Khachaturian Rehman's case (1985 S.C.M.R. 1314) and Rashid Ahmad's case (PLD 1986 S.C. 737). The principle laid down in these cases is that where a private complaint and a challan case relating to the same incident are pending and the versions, sets of accused and the witnesses in both the cases are the same, then the challan case would be taken up first and there would be no necessity of holding separate trials but where the two versions or the two sets of accused or the witnesses are different the complaint case shall be tried first. As already pointed out since the versions and the witnesses in both the cases are different the learned trial court was justified in holding that the complaint case would be taken up first. The impugned order does not suffer from any infirmity and therefore, is upheld. The revision petition is dismissed.
31. All the matters are disposed of accordingly.
32. Records of both the cases alongwith the police file shall immediately be sent back to the learned trial court with the direction to dispose them of, in accordance with the law, before the first of March, 1991. The cases shall be heard day to day and no unnecessary adjournments shall be granted. The trial shall commence before 10th December, 1990.