' This order shall dispose of Criminal Miscellaneous No,557/0 of 1993 and Criminal Miscellaneous No,575/0 of 1994. In Criminal Miscellaneous No,557/Q of 1993, the petitioners have challenged the order, dated 23-8-1993 passed by learned Additional Sessions Judge, Bahawalpur whereby he accepted respondents' revision and set aside the order, dated 16-3-1993 passed by Magistrate 1st Class, Bahawalpur vide which respondent's private complaint against the petitioners was dismissed. In Criminal Miscellaneous No,575/0 of 1994 the petitioner has prayed that the learned Additional Sessions Judge, Bahawalpur who is seized of the Sessions Trial in F.I.R. No,271/92 under section 302, Police Station Yazman be directed to stay the proceedings till the decision in Criminal Miscellaneous No,557/Q of 1993 so that the trial in private complaint case (which private complaint is subject-matter of Criminal Miscellaneous No,557/Q of 1993) should precede the trial in police challan case as they pertain to the same occurrence.
2. Brief facts leading to Quashment Petition No,557/Q of 1994 are that respondent filed a complaint in the Court of the Judicial Magistrate, Bahawalpur under section 324/148/149, P.P.C. Alleging that on the fateful day and time the petitioners having armed themselves with deadly weapons attacked the complainant party and caused injuries to Akbar Ali and Akhtar Ali. During the occurrence, Arshad brought gun belonging to Akbar Ali with a view to scare off the assailants and Altaf petitioner allegedly tried to snatch the same and it accidently got fired resulting in death of Karam Dad of the petitioner/accused party. After recording preliminary evidence, the learned Magistrate found the complaint to be false and dismissed the same vide order, dated 16-3-1993.
The main grounds which found favour with the learned Magistrate were that:--
(i) There was a delay of four months in filing the complaint.
(ii) The medical evidence did not support the complainant's version as the medico-legal report qua injuries of Akhtar Ali was never placed on record.
(iii) That Akbar P.W. Who is an injured witness also has not fully supported the prosecution story.
(iv) The complainant has filed the private complaint with a view to create defence in police challan case which is pending trial.
3. The learned Additional Sessions Judge, Bahawalpur set aside the order of dismissal of complaint on a revision filed by the respondent-complainant by holding that the private complaint was fully supported by the witnesses including the injured witness; that a deeper appreciation of evidence was not called for at preliminary stage and that in view of the dictum laid down 1990 MLD 2073 and PLD 1984 Lah. 323 it was fit case in which the petitioners/accused should be tried on the offences alleged in the complaint.
4. The learned counsel for the petitioners has sought quashment of the impugned order on following grounds:--
(i) That the order of dismissing the complaint passed by Judicial Magistrate was correct in law as the evidence recorded at preliminary stage did not warrant trial of the petitioners. Reliance was placed on 1987 P Cr. L J 534 and PLD 1966 SC 178.
(ii) That the Legislature has envisaged limited powers for the revising Court under section 436, Cr.P.C. And in any complaint which has been dismissed under section 203, Cr.P.C., the law mandates the High Court or the Court of Sessions to direct further inquiry into the said complaint.
5. The learned counsel for the respondent-complainant submits that:--
(i) The powers of Court of Sessions are not fettered by what is stipulated in section 436, Cr.P.C. And the Court can order the summoning of the accused without directing any inquiry. In this connection refers to 1991 SCMR 2157 and 1985 P Cr. L J 292.
(ii) The medical evidence fully supports the ocular account.
(iii) The complaint filed by the respondent/complainant is relatable to the same occurrence qua which trial is pending in police challan case and it would be in the interest of justice that both the cases should be heard together.
(iv) The delay in filing the private complaint is not fatal in facts and circumstances of this case as the respondent-complainant was behind the bars in a connected murder case.
6. The learned State counsel has supported the impugned order and has contended:--
(i) That it would be in the interest of justice if the trial in both the cross-cases is held jointly.
Reference in this regard was made to 1984 P Cr. L J 2240, 1987 P Cr. L J 534, PLD 1966 SC 178, PLD 1966 BJ 6, PLD 1971 SC 713 and PLD 1981 SC 522.
7. From the arguments of the learned counsel for the parties the points that emerge for consideration before this Court are as follows:--
(i) Whether the learned Additional Sessions Judge could have directed retrial without "further inquiry" as envisaged in section 436, Cr.P.C.?
(ii) Whether in the light of evidence on record, the order of retrial was justified in the face of the well-established principles pertaining to the remand of cases for retrial in the cases of acquittal?
(iii) Whether it is an inflexible rule of procedure that the cross-case qua the same occurrence should be tried and decided together?
8. So far as the first point is concerned, the law has been well-settled now that a revisional Court while remanding a case for retrial can do so with or without "further inquiry" to be conducted by the trial Court. In section 436, Cr.P.C. The use of the word "may" is significant and it has the effect of making it optional for the learned Sessions Judge to order summoning of the accused after "inquiry" or without "further inquiry" by the trial Court to which the case is being remanded in revision. In a judgment of the Honourable Supreme Court reported in 1991 SCMR 2157, (page 2158) it has been held:-- "To sum up the Sessions Judge can order the summoning of the accused without an inquiry at all as under section 202, Cr.P.C. He can order summoning the accused on the basis of the inquiry, if any, held by the Magistrate before dismissal under section 203, Cr.P.C. He can also postpone the summoning of the accused as under section 202 by recording reasons in that behalf and can order the Magistrate to hold enquiry as further enquiry, if some enquiry was held before dismissal under section 203, Cr.P.C."
9. Coming to the second point the principles relating to and the considerations to be weighed by a revisional Court while remanding cases of acquittal for retrial have been elucidated by Courts in several judgments. In a celebrated judgment of the Honourable Supreme Court reported in PLD 1955 FC 18 it has been laid down:-- "It has been held, technically, therefore, the power of the High Court to examine the evidence on which a finding of a fact is based is unlimited, though in adopting that course it will naturally pay due regard to the opinion formed by the acquitting Judge about the witnesses who gave evidence before him and the corresponding disadvantages from which the High Court itself suffers is not having them before it. No artificial rules can, therefore, be laid down defining the classes of cases in which the High Court should or should not order a retrial. The matter is essentially in the discretion of the High Court and the only limitation on the exercise of that discretion, apart from the legal restriction contained in subsection (4) of section 439, is that the exercise of such discretion is to be in accordance with the dictates of justice and not arbitrary or fanciful. The trial Court's view of the evidence, the nature of the error committed, the magnitude or apprehended miscarriage or failure of justice, the possibility and extent of prejudice to the accused, the chance of conviction, the expenses of a retrial are all relevant factors to be duly weighed."
' Similarly in Khan and 6 others v. The Crown reported in 1971 SCMR 264, the Honourable Supreme Court upheld an order of retrial following a precedent case reported in I L R 1936 Lah. 125 wherein it was observed:-- "The Court seldom exercises its discretion except as laid down in a number of rulings, namely, that an order of acquittal will not as a rule be interfered with merely because the High Court disagrees with the finding of the Magistrate. It is only when the record is incomplete, or there is a flaw in jurisdiction or where the finding is manifestly wrong or perverse that the High Court will interfere in such cases."
10. Keeping in mind the aforementioned principles it seems that the order of the learned Additional Sessions Judge is based on non-reading and misreading of material evidence on record and the finding arrived at is perverse. The learned Court lost sight of the fact that the complainant party is facing trial in police challan case (for the murder of Karam Dad) qua the same occurrence wherein admittedly almost the entire prosecution evidence has already been recorded. The complaint was filed after a delay of four and a half months of the lodging of F.I.R. (No,271/92, dated 2-10-1992 registered under section 302/34, P.P.C. Police Station Yazman). The complainant did not give any tenable explanation for the same. To say that the complaint was not filed as attempt was being made to effect a compromise is not convincing as it is a matter of common observation that counter-complaints are lodged with a view to put pressure so that the other party affects a compromise and it is not the other way round. The medical evidence also did not support the prosecution case. For instance the account given by Akbar P.W. In preliminary evidence that ILyas accused gave a Dang blow on his head, Altaf accused gave a hatchet blow on his head and as he fell down, the accused kept be labouring him to the extent that he became unconscious is not born out from the number and nature of the injuries shown in the medical evidence. Akhtar Ali P.W. Says that he was given beating to such an extent that he fell unconscious but surprisingly he was not medically examined. The complainant admits that Akbar Ali's son Arshad Ali brought a licensed gun from inside the house and he aimed the barrel towards the accused whereupon Altaf accused tried to snatch the gun from him and in the scuffle that ensued the gun was accidently fired and it hit Karam Dad (deceased) whose murder is subject-matter of the police challan case. I will restrain myself from commenting any further upon the story in complaint lest the same may not prejudice the case of either side in the police challan case. Suffice it to say that it betrays an attempt to create a defence version which if taken up in the afore-referred case shall of course be treated in accordance with law but cannot form basis of a credible prosecution case.
11. The question of joint trial in cross-cases about one occurrence would of course be a valid point to agitate speaking generally. Though it is not mandatory rule but the Supreme Court has, in more than one judgments, held that if facts and circumstances warrant, this is a desirable course to be followed and is in line with norms of judicial propriety. This was so held in PLD 1966 SC 178 and 1991 SCMR 2157. In the present case the question of joint trial would arise only if the evidence in private complaint justifies issuance of summons to the petitioners/accused and their trial. As the order passed by the learned trial Court acquitting the petitioners/accused is neither perverse nor illegal and is being restored, the issue of joint trial would be merely academic and not relevant in the instant case.
12. In Criminal Miscellaneous No,575/Q of 1994 Akbar Ali petitioner has prayed that the trial in police challan case registered vide F.I.R. No,271/92 under section 302/34, P.P.C. Police Station Yazman pending in the Court of learned Additional Sessions Judge be stayed till the trial in private complaint case is directed to be conducted with the said police challan case jointly. As Criminal Miscellaneous No,557/Q of 1993 is being accepted and the order of acquittal of accused named in the said private complaint filed by Khushi Muhammad is being restored through the above detailed judgment, this petition (Criminal Miscellaneous No,575/Q of 1994) is infructuous and has no merit which is, therefore, dismissed.
13. In the light of what has been discussed above, this petition (Criminal Miscellaneous No, 557/Q of 1993) is accepted and judgment, dated 23-8-1993 passed by the learned Additional Sessions Judge, Bahawalpur, whereby he set aside the order of the trial Magistrate, dated 16-3-1993 and directed retrial of the complaint, is declared to be without lawful authority and is hereby quashed.