1. ' MIR HAZAR KHAN KHOSO, C.J.---By this revision petition, order dated 13-1-1993 passed by the learned Additional Sessions Judge, Bahawalpur Canip at Ahmadpur East has been challenged before this Court by Murid Hussain.
2. The facts giving rise to the petition are that on 12-2-1992 on the written complaint of respondent Mst. Noor Mai, F.I.R. No, 9/92 for offence under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) was registered at Police Station, Noushera Jadid. The coniplaint reads as under:--- {{URDU TEXT}}
3. During the investigation of the case, the police found respondent/complainant Mst. Noor Mai a consenting party to the sexual intercourse, hence ordered for her challan alongwith petitioner Murid Hussain and his conipanions for offence under section 10(2) of the Ordinance before the Court. In the nieantime Mst. Noor Mai disappeared, hence proceedings under sections 87 and 88, Cr.P.C. were taken against her and she was declared absconder. Thus on 29-6-1992 a challan against Mutid Hussain, his two companions and Mst. Noor Mai was presented before the Court of learned Additional Sessions Judge, where Mst. Noor Mai was placed in Column No, 2 with red ink.
2. The remaks of the investigating officer in the challan against respondent Mst. Noor Mai are as under:--- 1 2 3 4 5 6 7 Name, address and occupation of complainant Or informant.Name and address of accused persons not sent up for trial, whether arrested or not arrested, including absconders(show absconders in red ink).Name and address of accused persons sent for trial.
3. In custody.
4. On Bail or recognizanceProperty (including weapons found with particulars of where when and by whom found and whether forwarded to Magistrate.Names and address ofwitnesses.Charge or information:- Name and office and circumstances connected with it, in concise detail, and under what section of the law charged.
5. However, Mst. Noor Mai filed a direct complaint against Murid Hussain and his two companions for offence under section 10(3) of the Ordinance before the Court of learned Additional Sessions Judge, Bahawalpur. It may be seen that before any action was taken by the Court on the challan case filed by the police or the direct complaint, Mst. Noor Mai on 6-1-1993 moved an application before the Court of learned Additional Sessions Judge, Bahawalpur praying that her name be deleted from the array of accused and she be shown to be a prosecution witness in the case. The application moved by her before the Court reads as under:--- {{URDU TEXT}} ' After hearing the parties, the learned Additional Sessions Judge on 13-1-1993 allowed her application and ordered for her being a witness and resultantly dismissed her complaint. The order reads as under:--- "Perusal of the record verifies this fact that the case was registered on the instance of Mst. Noor Mai. She and her witnesses mentioned in the State case are strict to their statements and they verified the prosecution story set forth in the complaint. In this situation, in my humble opinion it was not fair to term Mst. Noor Mai as a consenting party in this case and to challan her as an accused, it will tantamount to spoil the prosecution case and to provide undue benefit to the actual culprits, especially when Murid Hussain accused was apprehended at the spot and he was got released from the custody of the P.Ws. later on with show of force by his co-accused. The statement of prosecution witnesses were recorded in the private complaint as well as the statement of the complainant. They had verified the actual story. In this situation, it will be fair and in the interest of justice to accede to the request of Mst. Noor Mai, petitioner. I term her as prosecution witness instead of the accused. Application stands accepted. The natural result of this order will be that the private complaint has become useless. It will be an exercise in futility to keep the same pending. That will be considered as stands disposed of accordingly."
6. ' Against the above-said order, the petitioner Murid Hussain has come in this revision petition before this Court.
4. We have heard Mr. Rau Ahmad Ghori, Advocate, for the petitioner, Mr. A.W. Butt, Advocate for the respondent and Mr. Masood Sadiq Mirza, Advocate, for the State.
5. At the very outset, the learned counsel for respondent Mst. Noor Mai challenged the maintainability of the revision petition on the ground that the impugned order passed by the learned Additional Sessions Judge was an executive order, hence not amenable to the revisional jurisdiction of this Court. In support reliance was placed on:
(i) PLD 1962 (W.P.) Lah.
7. 405.
(ii) 1970 SCMR 178.
(iii) PLD 1967 SC 425.
(iv) 1978 PCr.LJ 394.
(v) 1989 PCr.LJ 903.
(vi) PLD 1985 SC 62 ' The learned counsel for the State supported the contention of the respondent's counsel and adopted his arguments. In reply, the learned counsel for the petitioner urged that the impugned order was a judicial one, hence amenable to the revisional jurisdiction of this Court. To understand the quotations relied upon by the learned counsel for the respondent, it would be necessary to reproduce the relevant propositions laid down in the abovesaid authorities. (i) In case of Wazir v.
8. The State a Full Bench of West Pakistan High Court has taken the view as under:--- "In the case of an incomplete challan, as in this case, although the Magistrate could start the trial, if he keeps it waiting until another report should come or until whatever is wanting should be made up, he clearly does not take cognizance of the offence. If, therefore, the case is at that stage and a second report is received, showing that no offence is committed, the Magistrate can accept the report and cancel the case............. Such case does not fall within the revisional jurisdiction of the Sessions Judge."
(ii) In case of Muhammad Arif, Gulab Khan and 6 others and Imtiaz Khan and others v. The State reported in 1970 SCMR 178, the Supreme Court has taken the view as under:-- "Sardar Muhammad Zafarullah, learned counsel for the petitioners, has contended that under the provisions of the Criminal Procedure Code, the learned A.D.M. could not order the police to submit fresh challan and that in accordance with the provisions of section 190(b) of the Criminal Procedure Code,c the learned Magistrate could take cognizance of the case only upon a report in writing of such facts that would show that an offence has been committed. According to the learned counsel in the present case, the police had made report that the case against the petitioners be cancelled and, therefore, the order of the A.D.M. to proceed with the case was unwarranted by law. He contended that the view of the High Court that the Magistrate can take cognizance of an offence even though there is a negative report by the police officer is not in consonance with law. The contention of the learned counsel is without substance. This aspect of the question was considered by this Court in the case of Falak Sher and others v. The State PLD 1967 SC 425. It was held in that case that the Magistrate is not bound by the report submitted by the police under section 173, Cr.P.C. When the said report is received by the Magistrate, the Magistrate on the report itself may not agree with the conclusions reached by the Investigating Officer. There is nothing in section 190, to prevent a Magistrate from taking cognizance of the case under clause
(b) in spite of the police report. It was further held that the action of the Magistrate in issuing summons to accused despite the fact that Investigating Officer in his report under section 173, Cr.
9. P.C. had placed their names in column 2 thereof was correct."
10. In case of Falak Sher v. The State reported in PLD 1967 SC 425, the Supreme Court has taken the view as under:--- "In our opinion, the actior of the Magistrate in issuing summons to these appellants despite the fact that the investigating officer in his report under section 173, Cr. P.C. placed their names in column 2, was clearly correct. Section 173, Cr P.C. is in these terms:--- 173.---(1) Every investigation under this Chapter shall be completed without unnecessary delay, and, as soon as it is completed, the officer in charge of the police station shall--
(a) forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the Provincial Government, setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case, and stating whether the accused (if arrested) has been forwarded in custody or has been released on his bond, and, if so, whether with or without sureties, and
(b) communicate, in such manner as may be prescribed by the Provincial Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given.
(2) Where a superior officer of police has been appointed under section 158, the report shall, in any cases in which the Provincial Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the police station to make further investigation.
(3) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit.
11. (4)
12. Under subsection (1), when the investigation is completed the police officer is required to forward to the Magistrate a report in the prescribed form. Under subsection (3) when it appears from the report forwarded under section 1 that the accused has been released on his bond 'the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit". It is clear that under section 3 a Magistrate may agree or may not agree with the police report. It, however, does not say what step the Magistrate should take if he disagrees with the police report. If the Magistrate wants to start a proceeding against the accused, he must act under section 190 of the Code of Criminal Procedure."
13. ' Section 190 provides that a Magistrate "may take cognizance of any offence (a) upon a complaint,
(b) upon a police report, or (c) upon information received by himself.
14. ' Now, the question is, if he disagrees with the report, can he take action under clause (b) against those whose names have been placed under column 2 of the challan. As already pointed out, the Magistrate is not bound by the report submitted by the police under section 173. When the said report is received by the Magistrate, the Magistrate on the report itself may not agree with the conclusions reached by the investigating officer. There is nothing in section 190 to prevent a Magistrate from taking cognizance of the case under clause (b) in spite of the police report. This Court in the case of Sardar Ali and others v. The State P.S.LA. No, 66 of 1966, while dealing with a similar question, observed:--- "Reference to section 173, Cr. P.C., which prescribes the details that must go into a police report of the relevant kind shows that the requirements are of a factual nature, so that, irrespective of the investigating officer's opinion, a Magistrate takes cognizance on a police report, when he proceeds against a person whose name is mentioned therein as one accused of the offence reported upon.
15. ' In conclusion, we may observe that this has been the consistent view of the High Court of West Pakistan and that Court has correctly interpreted the meaning and scope of sections 173 and 190 of the Code of Criminal Procedure in Muhammad Nawaz Khan v. Noor Muhammad and others (1).
16. ' For the reasons stated above, we see no ground for interference with the order of the High Court and accordingly dismiss this appeal.
(iv) In case of reference made by District Magistrate, Sargodha reported in 1978 P Cr . L J 394 the Lahore High Court has taken the view as under:--- `5. In accordance with this verdict of the Full Bench which has been persistently followed by this Court such orders are deemed to have been passed under section 173 read with section 190 of the Criminal Procedure Code and amount only to an administrative order regarding the cancellation of the case and not to the discharge of the accused in judicial proceeding which could operate as a bar against their fresh prosecution. In Amir Ali's case PLD 1968 Lah. 537 one of us following an Indian authority J.O. Bowla v. Sorab Rustamji Engineer (AIR 1941 Born. 294) was pleased to take a different view about the nature of such orders, but had re-affirmed the legal right of the informant whose case is cancelled under section 173, Cr.P.C. that he can seek his remedy by filing a complaint against the accused discharged under this order'."
17. ' In the case in hand we are only concerned with the latter aspect and in the view that I have taken I am duly supported by this judgment as well. This Court has gone still further in the matter by holding that even a fresh investigation can be launched against a person who had been found innocent in an earlier enquiry by the police on a similar report. See Atta Muhammad's case PLD 1969 (W.P.) Lah. 734, Muhammad Hayat's case PLD 1970 Lah. 729 and Alam Din's case PLD 1973 Lah.
18. 304.
6. Learned District Magistrate has relied on four authorities, namely, Mst. Tirathbai v. Mt. Sugmbai AIR 1929 Sindh 61 (1), Chellomal and others v. Kewalmel Jeramdas AIR 1939 Sindh 38, Abdul Hossain Sana v. Suwalal Agarwala and another PLD 1962 SC 242 and State v. Syed Masood Ahmad 1971 PCr.LJ 1216 which are clearly distinguishable from the facts of the present case. In the first two cases the complaint on similar facts had already been dismissed under section 203, Cr.P.C. by a judicial order passed by another Magistrate and entertainment of a fresh complaint would, in fact, amount to re-opening of the case as in appeal, revision or a review petition, which was beyond his jurisdiction or scope of his authority. These cases were, therefore, not applicable at all to this case.
7. In the third case too the discharge order had been passed under section 253, Cr.P.C. holding that the charge was groundless, pertinent remark of their Lordships in the body of this judgment is being reproduced below to indicate their viewpoint about it:-- "The difference between the view we are taking and the view which was taken in the Full Bench cases (of pre-partition Indian Courts) is not so great as it may at first sight appear. It had been accepted in these cases that if there has been a discharge, after hearing of evidence, there should not be a second prosecution and that is substantially the basis of this judgment."
19. ' The observation clearly envisaged a discharge order passed on merits under section 203/253, Cr.P.C. i.e. after taking cognizance and recording some evidence therein and not merely based on a perusal of the police report or for that matter the police file, as done in the present case.
8. In the fourth case State v. Syed Masood Ahmad even enquiry had been taken in hand and of the three witnesses, who appeared, one did not support the prosecution and the remaining two were given up, but the case was later withdrawn under section 494, Cr.P.C. resulting in the discharge of the accused under section 494(a), Cr.P.C. This case was likewise inapplicable to the facts of the present case.
(v) In case of Abdul Hamid and 5- others v. The State reported in 1989 PCr.LJ 903, the Lahore High Court has taken the view as under:--- "The instant case does not fall under section 190, para. 1, clause (c), Cr.P.C. because where cognizance is taken by a Court of a case on the basis of a negative report under section 173 of the Code, such cognizance is obviously taken on the police report and not upon his own knowledge or suspicion. Furthermore, the opinion of a Police Officer submitting a report is not binding on the Sessions Judge. The Court taking cognizance of the offence becomes seized of entire case and cognizance extends not only to person against whom challan has been submitted but to other persons as well who might appear implicated therein. The Court is competent to summon persons mentioned in column No, 2 of the challan submitted by the police and it shall be deemed that the Court had taken cognizance on a report in writing of such facts made by the Police Officer and the case falls under section 190, para. 1, clause (b), Cr.P.C. and not under section 190, para. 1, clause (c), Cr.P.C. The same principle was enunciated in Muhamad Haneef and another v. The State 1979 PCr.LJ 1078, Qurban Ali v. Punhoon and 2 others 1982 PCr.LJ 52 and Ali Mardan v. The State 1986 PCr.LJ 1206. In this manner, there was no necessity to adhere to the provisions embodied in section 191, Cr.P.C."
(vi) In case of Bahadur and others v. The State reported in PLD 1985 SC 62 the Supreme Court has observed as under:--- "The revisional powers under the Criminal Procedure Code (sections 435, 436, 439 and 439-A, Cr.P.C.) are exercisable only in respect of any proceeding conducted by 'inferior', 'Criminal Court'.
20. The order' cancelling a case qualifies as proceeding, equally so the Magistrate passing the order as an inferior, in relation to Court of Session and the High Court. The only question requiring determination is whether the Magistrate in cancelling the case acts as a Criminal Court. The Criminal Procedure Code contains no defmition of Court nor does the Penal Code. In section 20 of Penal Code 'Court of Justice' is defined as 'a Judge who is empowered by law to act judicially as a body when such Judge or body of Judges is acting judicially'. This definition is of avail for the purposes of Criminal Procedure Code as subsection (2) of section 4 thereof provides 'all words and expressions used herein and defined in the Pakistan Penal Code, and not hereinbefore defined shall be deenied to have the meanings respectively attributed to them by that Code'. The High Court has taken the view, and we think rightly so, that under the Criminal Procedure Code a Magistrate is entrusted with diverse duties and in discharging the same does not always function as a Court, conduct judicial proceedings or is amenable to the revisional jurisdiction. Some of his powers and duties under the Code are administrative, executive or ministerial and he discharges these duties not as a Court but as a persona designata. Mere name or designation of a Magistrate is not decisive of the question because as observed `Judges often administer and administrators often judge'. Robsen (Justice and Administrative Law p. 15) has after noticing the difficulties and the limitations provided a basis for classification of judicial functions to serve practical purposes. It is reproduced hereunder as follows:--- '
21. "With so delicately graded a scale of authorities it is scarcely surprising if we find it difficult to discover an infallible test which shall immediately tell us which functions are judicial and which administrative. It is, however, necessary for practical purposes to have some kind of a classification; and we may accordingly suggest that the primary characteristics of 'pure' judicial functions, by whomsoever exercised, are:---
(1) The power to hear and determine a controversy.
(2) The power to make a binding decision (sometimes subject to appeals) which'may affect the person or property or other rights of the parties involved in the dispute.
22. ' Admmstrative functions, on the other hand, consist of those activities which are directed towards the regulation and supervision of public affairs and the initiation and maintenance of the public services."
23. ' Reid and David in Administrative Law and Practice, 2nd Edition, Canadian Legal Text Series observe at p. 52:--- "One hardly needs to be reminded of the pervasiveness of the doctrine that the nature of the function governs all questions. It touches such diverse issues as the application of the doctrine of res judicata which has been held not to apply in the exercise of administrative power, and the doctrine of functus officio which has been held in effect not to apply to prevent the exercise of administrative powers".
24. ' De Smith Administrative Laws, 3rd Edition expresses himself on the subject in the following words: "A judicial decision made within jurisdiction is binding and conclusive in so far as it cannot be impeached in collateral proceedings and it cannot in general be rescinded by the tribunal itself' (p.
25. 65).
26. "A non-judicial act, order, or decision, on the other hand is potentially open to attack for any material error of law or fact in either directed or collateral proceedings and it cannot reconstitute res judicata. In addition, it is sometimes said that a legislative act may always be rescinded by the body making it whereas a valid judicial determination cannot save on very limited grounds."
27. ' A Magistrate even while concurring in cancellation of a case is required to judicially examine the report submitted under section 173, Cr.P.C. AIR 1968 SC 117 and this has led to the impression that he must while doing so be acting and functioning as a Court 1972 Cr.0 1446, 1971 Cr.LJ 194, AIR 1969 A.P.
28. 281 etc. This obviously is a mistaken impression and the mistake will transparently surface from what has been observed by Robson and what was held in the case of Royal Aquarium (1892) 1 Q.B.
29. 431 Robson at page 39 observes: "We are inclined to go so far as to suggest, indeed, that the whole modern conception of economic and social democracy involves the exercise of discretions which shall be 'judicial' in that they are not to depend on individual caprice and shall be free from personal favour and individual self- interest; and this may imply an extension in certain respects of the judicial mind, an application of mental habits common among those who administer the judicial process."
30. ' In the Royal Aquarium case it was held that: "The word 'judicial' has two meanings. It may refer to the discharge of duties exercisable by a judge or by justices in Court; or to administrative duties which need not be performed in Court, but in respect of which it is necessary to bring to bear a judicial mind---that is, a mind to determine what is fair and just in respect of the matters under consideration. Justices, for instance, act judicially when determining in their private room what is right and fair in some admimstrative matter brought before them, as for instance, levying a rate.
31. ' Though a Magistrate in cancelling a registered criminal case is required to act judicially in that he has to act fairly, justly and honestly, a duty common to the exercise of all State power, there is no lis before him, there is no duty to hear the parties, there is no decision given, no finality or irrevocability attaching to the order. The party is left free to institute a complaint on the same facts, and the same Magistrate does not even after passing such an order renders himself functus officio. On the contrary he is quite competent to entertain and deal with such a complaint on material presented to him. These peculiarities establish beyond any doubt that in so concurring with a report submitted under section 173, Cr.P.C., he does not function as a Criminal Court. For that reason his order is not amenable to revisional jurisdiction under sections 436 to 439, Cr.P.C. This appeal is, therefore, allowed, and the impugned order of the High Court is set aside, as one without jurisdiction."
32. ' In case of Mst. Amtul Mubin alias Mubin Karim v. Magistrate, Illaqa, South Cantt., Lahore, reported in 1991 PCr.LJ 1075, the Lahore High Court besides has taken the view as under:--- "In the case registered vide FIR No, 2 of 12-1-1991 under section 302/307/34, P.P.C. read with section 324 of Oisas and Diyat Ordinance, 1990 at Police Station South Cantt., Lahore against respondents 3 to 5 alongwith two others alleging murder of petitioner's son Khurram Karim, the respondents were discharged by Magistrate, Factory Area, Lahore vide the impugned order dated 20 1-1991, granting the police request in the following terms:--- {{IMAGE}} ' legality whereof was assailed in these proceedings by contending that the learned Magistrate has acted purely mechanically solely on the police report without application of independent mind, whereupon the respondents were summoned to join the proceedings, during the course of hearing whereof the learned. Additional Advocate-General frankly stated that the impugned order is unsustainable while learned counsel for the respondents stated that not only the matter is being reinvestigated at the complainant's instance but also she can avail of the alternative remedy of lodging a private complaint, with which I am not persuaded for the reason that irrespective of the fact that the order impugned is administrative in nature, the Magistrate is not supposed to render his discretion subservient to the police dictate and to act in a pure mechanical fashion, rather is obliged to apply his independent mind to the facts adduced on the record by the investigating agency and to formulate his own opinion, which in the instant case admittedly is lacking; consequently, the inipugned order is set aside and the matter is deemed to be pending before the Court concerned who shall pass such order as may deem fit in accordance with law. The petition stands disposed of with no order as to costs."
6. It may be seen that the facts of the case in hand are quite distinguishable from the facts involved in the abovesaid authorities. The points involved in this case are that:---
(1) Respondent Mst. Noor Mai had filed FIR for having been subjected to forcible sexual intercourse.
(2) During the investigation she was found to be consenting party to the sexual intercourse.
(3) A challan was submitted before the Court against her and her paramour and his two conipanions under section 10 (2) of the Ordinance.
(4) She had absconded, hence she was placed in Col. No,2 with red ink as absconder in the challan.
(5) She filed a complaint before the Court for offence under section 10(3) against Murid Hussain and others,
(6) On her application, the learned Additional Sessions Judge has transposed her from the column of accused to that of witnesses.
33. ' On face of it, the authorities relied upon by the learned counsel for the respondent do not come to her rescue for the reasons:--
(I) In PLD 1962 (W.P.) Lah. 405, by second report under section 173, Cr.P.C. the police had asked for cancellation of the earlier report. The Magistrate acceded to such request of the police. The Court found the order of cancellation as administrative one and held not to be amenable to revisional jurisdiction of the High Court or revisional Court.
(ii) In case reported in 1970 SCMR 178, the Supreme Court has observed that a Magistrate was competent to take cognizance of the case even though the report of the police was in negative.
(iii) In case reported in PLD 1967 SC 425, the Supreme Court has held that Magistrate was competent to take cognizance under section 190(b) of case of accused shown innocent in column No, 2 of report submitted under section 173, Cr.P.C. Here in the case in hand, accused was placed in column No, 2 as an absconder.
(iv) In case reported in 1978 PCr.LJ 394 the order of Magistrate cancelling, on police report, challan filed earlier was found not be amenable to revisional jurisdiction of the Court.
(v) In case reported in 1989 PCr.LJ 903, taking of cognizance by Magistrate on negative report of police under section 173 was not found to be defective one.
(vi) In case reported in PLD 1985 SC 62 cancellation of Challan by Magistrate on 2nd report was not found to be amenable to the revisional jurisdiction of the Court.
(vii) In case reported in 1991 PCr.LJ 1075, the discharge of accused person on 2nd police report though found to be an order of administrative nature was yet set aside.
34. ' It may be seen that nowhere in the abovesaid authorities there is a slightest indication that a Criminal Court has power to treat an accused person as a witness. It may be observed that in Criminal Procedure Code, no provision parallel to Order I, rule 10, is available to the Court whereby Court can strike out or add at its own discretion parties. In PLD 1962 Lah. 114, the Court has observed:--- "Civil Procedure Code (V of 1908), 0.I, R. 10---Transposition of parties---Discretionary---Power may be exercised at any stage---Plaintiff disagreeing with other plaintiffs and identifying himself with defendant---To be transposed to defendants' side."
35. It may be pertinent to observe that once police submits report under section 173, Cr.P.C., a Court has no jurisdiction to cancel it on its own instance but has to proceed with the case, to issue process hold enquiry or trial, as the case may be. But the Court is competent to frame a charge or not as it finds fit. We are therefore, inclined to observe that the learned Additional Sessions Judge was obviously not competent to treat Mst. Noor Mai as a witness. The impugned order as such is illegal and without jurisdiction. Indeed in such cases where a complainant is aggrieved against police decision, he can lodge a complaint directly before the Court against the culprits. In the instant case the complainant had rightly approached the Court by filing a direct complaint. The police case and the direct complaint case were pending before the Court of the learned Additional Sessions Judge. Respondent Mst. Noor Mai indeed had moved misconceived application before the Court and succeeded in getting an illegal order which cannot be sustained. In such situation the learned Additional Sessions Judge while following the principle laid down in PLD 1966 SC 708 had first to proceed with the complaint case and then, if necessary, with the police case. The settled principle laid down therein is as under:--- "The question how the two cases should be proceeded with so as to cause no prejudice to either party, is one of difficulty in the circumstances mentioned and has caused us some concern. The learned Advocate-General suggested that we might issue directions similar to those embodied by the Lahore High Court in the unreported case cited above. The learned Judges observed therein that it would be desirable, should the trial Judge decide to hear first the case based on the Police version, to summon the witnesses supporting the counter version as Court witnesses under section 540-A of the Code of Criminal Procedure, so that the record contains all the relevant evidence.
36. Similar procedure was directed to be adopted during the trial of the complaint case. 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 had 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 utilising the material placed on the record of the earlier trial, by way of cross-examination of the relevant witnesses, as permitted by law.
37. ' This procedure is being suggested to avoid a difficulty that might otherwise comfort 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."
7. In such view of the facts, we observe that the impugned order passed by the learned Additional Sessions Judge, Bahawalpur, on face of it, is illegal and is set aside. The case is remanded to the learned Additional Sessions Judge for disposal of the complaint case and then police case in accordance with the principle laid down in PLD 1966 SC 708. These are the reasons of our short order dated 29-7-1993. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.