1. ' This criminal revision arises out of an order, dated 13-12-1992 passed by Mr. Abdul Hamid Khattak, learned Additional Sessions Judge, Islamabad, whereby, a private complaint filed by the complainant under section 302/324/ 34/114, P.P.C. Against the respondents was consolidated with the challan case registered under the same offences vide F.I.R. No,198, dated 8-11-1990 at the instance of the petitioner at Police Station Secretariat, Islamabad against the said respondents Nos.1 to 3 for the purposes of trial.
2. ' The facts giving rise to this petition could be summarised as under. On 8-11-1990, Zia-ul-Haq, petitioner lodged an F.I.R. No,198 under section 302/ 324/34/114, P.P.C. At Police Station Secretariat, Islamabad against respondents Nos.1 to 3 for the alleged murder of his brother, namely, Ehsanul- Haq. Giving details of the occurrence, it was alleged that on the fateful day during the inspection of a local commissioner under the order of the Civil Court, a quarrel had ensued between the parties, when Noor Muhammad, respondent fired a rifle shot at Ehsanul Haq deceased and thereby caused his death, while All Wajid accused/respondent fired three shots on the complainant and Mushtaq P.W. But the same had gone ineffective. It was further alleged in the F.I.R. That the two accused, namely, Noor Muhammad and All Wajid had committed the offence under the directions of Dr. Maqbool Hussain, respondent No,1, and the accused/respondents Nos.2 and 3 were his security guards.
3. ' The investigation was conducted and as a result thereof Noor Muhammad, respondent No,3, was challaned to Court to face his trial, while the other co-accused/respondents All Wajid and Maqbool Hussain, were declared innocent and were placed in Column No,2 of the challan. Being dissatisfied with result of the investigation, the complainant/petitioner filed a private complaint on 174-1991 in the Court of the learned Ilaqa Magistrate against all the three accused/respondents, earlier named in the F.I.R. The said complaint was sent up to the Court of Session wherefrom it was entrusted to the learned Additional Sessions Judge, Islamabad, for necessary adjudication. After recording preliminary evidence in the complaint, the learned Additional Sessions Judge found a prima facie case against all the three accused/respondents, namely, Dr. Maqbool Hussain, All Wajid and Noor Muhammad, and summoned them to face their trial under section 302/324/ 34/114, P.P.C. Vide order, dated 3-3-1991.
4. 'It was at the time of resumption of the trial that the matter was taken up as to which case was to be tried first. Arguments from both the parties were heard by the learned trial Judge, who vide order, dated 13-12-1992 decided to consolidate the two cases i,e, the private complaint case as well as the police' challan case by making observations that as the parties are the same in the, two cases and version of the prosecution too is not different, so there would be no necessity for a separate trial of the two cases. It was also observed that the dictum laid down by the Honourable Supreme Court in the case reported as Noor Elahi v. The State PLD 1966 SC 708 was not applicable to the facts of the case in hand, thus, giving an indication that the police challan case was to be tried first.
5. ' Being aggrieved by the observations made in the impugned order passed by the learned trial Judge, the complainant/petitioner has filed this revision petition, which is being disposed of by this order.
6. ' Learned counsel for the petitioner has vehemently argued that the learned trial Judge has erred in passing the impugned order inasmuch as the same is against the dictum laid down by the Honourable Supreme Court in the cases reported as Noor Ilahi v. The State PLD 1966 SC 708 and Rashid Ahmad v. Asghar Ali etc. PLD 1986 SC 737 wherein it has been specifically laid down that in the similar circumstances, the complaint is to be given preference over the challan case at the time of hearing of the two cases. According to the learned counsel, if the complaint case is not taken up first, whole of the trial would be an exercise in futility and the case of the complainant would be materially prejudiced. Elaborating his point, learned counsel submits that the proceedings in the challan case would be conducted by the Public Prosecutor/District Attorney, whose main concern would be tp follow the lines given in the State case and he would be a last man to watch the interest of the complainant. Learned counsel for the petitioner further clarifying the position has argued that in the case in hand during the investigation, the police has declared the two respondents, namely, Ali Wajid and Dr. Maqbool Hussain as innocent and has placed them in Column No,2 of the challan. If the police challan case is taken up first, the Public Prosecutor would be obliged to produce those Investigating Officers as P.Ws., who had conducted the investigation and had declared the two respondents as innocent. In such a situation, the complainant would have no remedy even to cross-examine the said witnesses so as to challenge their veracity, as such, the case of the complainant would be adversely effected. Learned counsel for the petitioner has lastly submitted that mere summing of the accused/respondents in the challan case and framing of the charge against them by the learned trial Court would not bring the case of the two accused-respondents at par with the accused who stands challaned in Column No,3.
7. ' On the other hand, learned counsel for respondents Nos.1 to 3 has vigorously opposed the contentions raised by the learned counsel for the petitioner. He submits that the version of the private complaint and that contained in the F.I.R. Lodged at the instance of the petitioner, the set of the P.Ws. And the accused being the same, it would not be legally permissible to proceed with the complaint case first. Reliance in this respect was placed on Zulfiqar All Bhutto v. The State PLD 1979 SC 53 and Mst. Aziz Begum v. Muhammad Khushdil and another PLD 1981 Kar.
141. Learned counsel for the respondents has laid stress on the point that after being charged under the offences mentioned in the complaint case, all the three accused/respondents would be on equal footing and there would be no difference as to who was declared innocent by the police, because according to the learned counsel, the opinion of the Investigating Officers was not binding on the Courts.
8. ' Learned Assistant Advocate-General appearing on behalf of the State has, however, supported the contentions raised by the learned counsel for the petitioner by submitting that the District Attorney/Public Prosecutor would only be interested to prosecute the State case to the extent of the accused who has been placed in Column No,3 of the challan and he would not be able to withhold the evidence of the Investigating Officers who have conducted the investigation and have reached the conclusion regarding innocence of the two respondents. It is further submitted that if the complaint case is taken up first, the complainant's counsel being incharge of the case, would produce whole of the evidence to prove the case against the respondents and he would also be in a position to cross-examine the Investigating Officers if summoned by the Court under section 540, Cr.P.C. As Court-witness in the challan case and thus would be able to challenge the veracity of their statements.
9. ' I have heard the learned counsel for the parties and have perused the record with their assistance. Admittedly, during the investigation conducted by the police in the State case registered vide F.I.R. No,198/90 at the instance of the petitioner, two accused/respondents namely, Dr. Maqbool Hussain and All Wajid were declared innocent and were placed in Column No,2 of the challan while Noor Muhammad accused alone was considered to be a culprit of the said offence and was challaned to Court to face his trial under section 302, P.P.C. It is also an admitted position that being dissatisfied with the result of the investigation, the complainant/petitioner has filed the private complaint against all the three accused/respondents, who were earlier named in the said F.I.R. The preliminary evidence was recorded by the learned trial Court and finding of prima facie case against all the three accused/respondents, they were summoned to face their trial under section 302/324/34/114, P.P.C. The crucial point to be decided by this Court is whether the dictum laid down by the Honourable Supreme Court in Noor Illahi's case PLD 1966 SC 708 and subsequently in the case of Rashid Ahmad v. Asghar Ali etc. PLD 1986 SC 737 would be applicable to the facts of the case in hand or the principle laid down in Zulfiqar All Bhutto v. The State PLD 1979 SC 53 and Mst. Anis Begum v. Muhammad Khushdil and another PLD 1981 Kar. 141 would apply to the facts of this case. I have carefully gone through the aforesaid precedents and the principle laid down by the Honourable Supreme Court therein. I feel that there is a nice distinction between the observations made in the cases cited supra as such criminal case stood factually distinguishable from the other, so the observations also varied according to the circumstances of each case. There is no cavil in the proposition that if the set of the P.Ws., the accused and the version of the complaint case as well as the challan case is the same, then both-the cases could be consolidated and there would be no necessity of holding separate trial, but if any of the aforementioned condition is not fulfilled then the observations made by the Honourable Supreme Court in Noor Ilahi's case would take the field and preference would be given to the complaint case at the trial. The facts of the case in hand are that according to the police challan case, Noor Muhammad respondent was the only accused to be tried for the murder of the deceased Ihsan- ul-Haq, while the other two respondents, namely, All Wajid and Dr. Maqbool Hussain were stated to have not participated in the occurrence and, thus, were declared innocent and placed in Column No,2 of the challan. This state of affairs strengthens the contention raised by the learned counsel for the petitioner duly supported by the learned Assistant Advocate-General that if the challan case is taken up first, the case of the complainant would be materially prejudiced, as the Public Prosecutor would only be interested to the extent of proving the case against the accused placed in Column No,3 of the challan and the respondents placed in Column No,2 thereof, though summoned by the Court would get the benefit of the evidence of the Investigating Officers, who will appear as P.Ws. And would support their findings regarding the innocence of the two respondents. I also feel persuaded by the contention raised by the learned counsel for the petitioner that in such an eventuality, the complainant would not have even the opportunity to challenge the veracity of the said Investigating Officers by cross-examining them regarding their mala fide investigations.
10. ' The contention of the learned counsel for the respondents that after being summoned and charged by the learned trial Court in the police challan case, the case of the two respondents, namely, Ali Wajid and Dr. Maqbool Hussain, who were placed in Column No,2 of the challan would be at par with that of their co-accused Noor Muhammad, who is placed in Column No,3 of the challan, as such, the case of the complainant would not be prejudiced, is of no legal consequence as the same does not get support from the observations made by the Honourable Supreme Court in the cases mentioned above. Considering the facts of the case in hand, I am of the view that the case of the complainant/petitioner would be adversely effected if the proceedings in the challan case are commenced first, and whole of the evidence is recorded therein because, as observed earlier, the Public Prosecutor/District Attorney would not be able to withhold the Investigating Officers who will appear in Court as P.Ws. And will exonerate the two respondents, namely, All Wajid and Dr. Maqbool Hussain from the charges alleged against them, and the petitioner/complainant would also not be able to intervene at that stage, so as to get the Investigating Officers declared hostile and cross-examined. I am also of the considered view that simply summoning the accused placed in Column No,2 of the challan by the learned trial Court would not place them on equal position with that of the accused whose name fmd mentioned in Column No,3 of the challan. I am fortified in my above said views by the observations made by the Honourable Supreme Court in the case of Rashid Ahmad v. Asghar All etc. PLD 1986 SC 737 at page 739. It would be advantageous to reproduce the same as under:-- "Learned counsel, however, tried to show that the two sets of accused are not different.
11. ' We do not agree with him Name of Muhammad Shall is mentioned in Column No,3 of the challan submitted by the State. Not only this, the State wanted to prosecute the only one accused mentioned by the complainant in his F.I.R. And placed the other two in Column No,2. The fact that the trial Court had summoned the other two also would not make any difference in so far as the position adopted in the State case is concerned. Notwithstanding the summoning of the two accused by the trial Court, the State might pursue the line originally adopted in the challan. As compared to this, the complainant wants to prosecute all the three accused mentioned in the F.I.R.
12. And does not involve Muhammad Shall as an accused person in his complaint.
13. ' In the foregoing context it cannot be said that the same sets of accused persons are intended to be prosecuted in the State case and in the complaint case. Naturally, in view of the difference on the two main points, namely, the sets of the accused and the prosecution version, the evidence to be led by the State would be different from that intended to be led by the complainant. In the facts and circumstances of this, therefore, Nur Illahi's case is fully attracted and the order passed by the learned Single Judge in the High Court is unexceptionable. Accordingly, we fmd no merit in this petition and the same is dismissed."
14. ' A similar view was taken by this Court in the case of Aziz-ur-Rehman v. The State PLD 1987 Lah.
15. 245, wherein after considering Atta Jillani's case 1980 P Cr. L J 901 and Nur Elahi's case PLD 1966 SC 708, it was observed as under:-- "Where the prosecution story is the same, but only the number of accused connected with the commission of the offences differ, the rule in Atta Jillani's case (supra) is pressed into service to determine the mode of trial. Where, however, the prosecution story and the defence version basically differ and certain accused persons named by the complainant are found innocent or certain persons not named are found to be able for the offence committed, the rule in Nur Illahi's case (supra) is pressed into service. The view in Atta Jillani's case (supra) is that both such cases can be consolidated and tried together, but in actual practice what is done is that one of the two cases is taken up, in which the larger set of accused are named, and such witnesses not examined in the case taken up but whose names appear in the other case, are examined as Court-witnesses under section 540-A, Cr.P.C. Sometimes where the accused found innocent are mentioned in Column No,2 of the police challan, the trial Judge summons them to face trial, which obviates the difficulty of having to take up the private complaint case first. Basically, therefore, there is no consolidation, but figuratively perhaps the expression is used to indicate that both cases being connected with the same version, whichever case is tried first, whether the same succeeds or fails, the other will not be taken up later. This is in contradiction to the rule stated in Nur Elahi's case (supra), where the private complaint case has to be taken up first and after decision is given thereon, the Public Prosecutor can then decide whether to press for the trial of the State challan case or not. Thus, even applying the rule stated in Atta case (supra) in actual fact the semantics in the present case leads to the application of the rule laid down by the Supreme Court in Nur Ilahi's case (supra). The learned trial Judge in the instant case has proposed to take up the private complaint case first for trial. This is understandable as five accused are named in this case, whereas in the State challan case only three are named. There is no specific order by the learned trial Judge that he will call such of the witnesses named in the State challan case, who may not be examined in the private complaint case, as Court-witnesses under section 540-A, Cr.P.C."
16. ' For the foregoing reasons, I am of the view that the observation made by the learned trial Court vide the impugned order passed on 13-12-1992 to the extent that the dictum laid down by the Honourable Supreme Court in Nur tElahi's case is not applicable to the facts of the case in hand, are not in accord with the principle laid down in such-like cases, I, therefore, direct that the proceedings in the private complaint case be taken up first followed by the proceedings in challan case, if need be, so that if any evidence against the interest of the complainant/petitioner is led by the prosecution in the State case, the complainant would get the opportunity to challenge the same by putting questions in cross-examination.
17. ' This criminal revision stands disposed of accordingly.