SH.MUHAMMAD ZUBAIR, J:- The petitioner has assailed the order dated 21.7.1991 passed by the learned Addl. Sessions Judge, Sheikhupura through this petition.
2. The brief facts relevant for the disposal of this petition are that a case under section 302 PPC arising out of F.I.R.No. 419/91, dated 20.9.1990, P.S. Saddar Muridke, was registered against the petitioner on the statement of Muhammad Tufail respondent No.1\. After the investigation the challan was submitted against the petitioner. Thereafter on a subsequent investigation, supplementary challan was submitted against' the petitioner on 2.1.91 under section 304 PPC before the learned Judicial Magistrate Section 30, Ferozewala (copy attached as Annex-B). The learned Magistrate took up the cognizance and on 4.4.1991 recorded the evidence of four witnesses and on 15.4.1991 P.W.5 the I.O. Was also examined.
3. On 11.2.1991 Muhammad Tufail respondent No.1\ filed a criminal complaint in the Court of learned Ilaqa Magistrate under section 302 PPC and ultimately the same was sent to the Court of Sher Zaheer Ahmad Khan, learned Addl. Sessions Judge, Sheikhupura. The learned Addl. Sessions Judge recorded the preliminary evidence of three P.Ws, on 23.4.1991 and also recorded the statement of Iman Ullah, S.H.O as P.W.6 on 16.6.1991. On transfer application bearing Crl.Misc.88-T/91 titled "Muhammad Tufail V&.Tasawar and another", the learned Judge of this Court vide order dated 20.4.1991 stayed the proceedings pending before the learned Magistrate Section-30, Ferozewala with the directions that "in case the said Court decides to issue process to the respondent then this case shall also stand transferred to the same Court".
4. The learned Additional Sessions Judge on 16.6.1991 summoned the petitioner under section 302 PPC and directed that both these cases; complaint case as well as challan case be consolidated and following the dictum of their lordships of the Supreme Court of Pakistan in Noor Elahi Versus The State (P.L.D. 1966 S.C. 708) directed that the complaint case would be taken up first and later on evidence of challan case would be recorded.
5. The learned counsel for the petitioner has assailed the aforesaid order of the learned trial Judge.
I have heard the learned counsel at length and perused the documents attached with this case.
6. The learned counsel has vehemently argued that the procedure adopted by the learned trial Court is contrary to law and is likely to prejudice the case of the accused/present petitioner. He has submitted that the view of their lordships of Supreme Court of Pakistan referred above, has undergone a material change in a case reported as Zulfiqar Ali Bhutto Versus The State (P.L.D.1979 S.C.53) in which their lordships laid down that if the accused are same and the witnesses are the same, then, there is no necessity to take up the complaint case first the case can proceed on the basis of the challan submitted by the prosecution. On the basis of the aforesaid observations of their lordships of the Supreme Court of Pakistan the learned counsel contended that in the present case, direction may be issued that the challan case should start first and thereafter the complaint case may be taken up because the witnesses and the accused are almost the same. He has also placed reliance on 1980 P.Cr.LJ. 901 and P.L.D. 1981 Kar.141 in support of its contention. He has further urged that the procedure which is being adopted by the learned trial Judge, while hearing these two cases is against the interest of the accused and is likely to prejudice the case of the defence.
7. I have considered the above contentions of the learned counsel carefully. I find, all these contentions are mis-conceived in law because the procedure laid down in Noor Elahi's case has not undergone a material change and it would be in the interest of both the parties that the complaint case should be decided first. The complainant will produce his evidence in the Court and defence will have the right of cross-examination and if after the conclusion of the complaint case, the order is announced either acquitting or convicting the petitioner/accused then it would be open to the Public Prosecutor to see the feasibility of either with drawing the case under section 494 Cr.P.C, or to proceed with the trial in accordance with law, if the accused is acquitted in the complaint case. There is some difference between the evidence which the complainant or the prosecution is likely to adduce in support of its case. The complainant's case is that it is a case of murder per se, whereas the case of the accused is that the occurrence took place all of sudden in a heat of passion, hence the offence falls under section 304 PPC and alteration of the offence from section 304 PPC is legally justified, In the presence of this deviation, it cannot be said with certainty that in both the cases the evidence would be similar. The I.O. While coming to this conclusion that the case falls under section 304 PPC must have recorded some evidence to the effect that the occurrence took place all of a sudden without premeditation over a trivial matter.
8. In impugned order was passed on 21-7-1991, but the revision was filed on 27-11-1991, thereafter, after removing office objection, it was again filed on 9- 12-1991. The above facts shows that this revision was primarily filed with the purpose of delaying the progress of the case which is at evidence stage. The apprehension of the learned counsel that the defence would be prejudiced by the procedure which the learned trial Court is going to adopt is misconceived as the learned trial Court has not committed any material irregularity while passing the impugned order, hence this petition is devoid of force and is dismissed in limine.