SALEEM AKHTAR, J.---The petitioner seeks leave to appeal against the judgment of the learned Judge in Chamber, whereby the appeal filed by respondents Nos. l to 4 was allowed and the conviction and sentence passed by the learned Trial Court were set aside. The case was remanded to the learned Sessions Judge, Dera Ghazi Khan for fresh trial.
2. The brief facts are that on 5-6-1992 the petitioner lodged an F.I.R. Alleging that he and Zulfiqar respondent No. l had jointly purchased Dolla pick--up from one Pathan for a consideration of Rs.2 lacs. They had paid Rs.60,000 in cash and the balance was to be paid at monthly instalment of Rs.3,000. He alongwith Zulfiqar plied the pick-up for to months. Zulfiqar paid Rs.20,000 of his share while the petitioner sold his share to Massu son of Elahi Bakhsh. Massu had to' pay Rs.22,000 to the petitioner but he paid Rs.18,000 and promised to pay the balance of Rs.4000 later on. Zulfiqar and Massu were bound to pay instalment to Pathan. On non-payment Pathan seized the pick-up from Zulfiqar and Massu who later on settled the matter with him. Massu and Zulfiqar were paid of by Pathan who thereafter started demanding the amount from the petitioner. It seems that there was some compromise talk with the intervention of one Irfanullah Khan in which Massu and Zulfiqar's claim was treated to be false but Zulfiqar and Massu insisted to recover this money from the petitioner. On the night when the incident occurred, the petitioner alongwith Pandhi and Rahim Bakhsh real brothers were sleeping at Chah Choharwala while Muhammad Bakhsh son' of Bagha was ploughing land in the nearby field. At midnight Zulfiqar and Massu respondents alongwith to unknown persons armed with guns appeared at the scene. Zulfiqar and Massu raising Lalkara to teach lesson for non-payment of price of pick-up fired one shot each with their respective weapons. The shot fired by Zulfiqar hit Rahim Bakhsh while the shot fired by Massu hit Pandhi. The petitioner also received injuries as a result of firing of the accused. Rahim Bakhsh and Pandhi succumbed to the injuries at the spot. It was stated by the complainant that he had identified Zulfiqar and Massu in the light of lantern who alongwith their unknown culprits escaped after committing murder and causing injuries. It seems that during police investigation Sooba and Hussain Bakhsh were found to be the unidentified culprits and the police opined that Zulfiqar and Massu were innocent. The challan was accordingly filed in the Court in which Sooba and Hussain Bakhsh were declared as the accused while Zulfiqar and Massu were not shown as such. The petitioner then filed a private complaint on the same allegation as stated in the F.I.R. In which he named all the four respondents as accused. The learned Trial Court convicted all the accused under section 302-B read with section 34, P.P.C., 324/34 and 452/34, P.P.C. The petitioner filed a revision seeking enhancement of sentence. The respondents also filed appeals which were decided by the impugned judgment.
3. It was contended on behalf of the respondents that there were to separate sets of accused and therefore the learned Trial Court was not justified to proceed with the complaint case together with the challenged case. Reliance was placed on Noor Elahi's case (PLD 1966 SC 704). On concession being given by the learned counsel for the State the learned Judge set aside the conviction and sentence of respondents Nos. l to 4 and remanded the case to the learned Sessions Judge for fresh trial.
4. Mr. Sardar Muhammad Latif Khan Khosa, the learned Advocate Supreme Court contended that Sooba and Hussain Bakhsh respondents who were identified as unknown culprits mentioned in the F.I.R. Were lawfully tried alongwith Zulfiqar and Massu respondents and the complaint was necessitated because the police had declared Zulfiqar and Massu innocent in the case. It was contended that version in the F.I.R. And in the complaint were the same. There were not to sets of accused as all the four accused (to named and to unnamed) were mentioned in the F.I.R. And named in the complaint but in the challan produced by the prosecution Zulfiqar and Massu were shown as innocent with which the learned Trial Court did not agree and proceeded against all the four accused. The learned counsel contended that the dictum laid down in Noor Elahi's case is not applicable to the present case. In this case leave was granted to consider whether special procedure laid down by the High Court for trial of to cases relating to same murder instituted respectively by police and a private complainant against to quite separate sets of accused had the sanction of law. It was ordered that in such situation the complaint case should be tried first and the challan case should be taken afterwards. The learned counsel for the petitioner referred to Raja Khushbakhtur Rehman and another v. The State (1985 SCM R 1314) in which Nur Elahi's case was considered and distinguished and following observation was made:- "Learned counsel for the petitioners has also assailed the dismissal of the complaint, on the ground that there was no provision of law 'enabling the Trial Judge to permit the withdrawal of a complaint in a murder case. In this connection he submitted that had the complaint not been dismissed, the complaint case could have been tried first in view of Nur Elahi v. The State PLD 1966 SC 704. Nur Elahi's case, however, does not lay down any invariable rule that the complaint case is always to be tried first. Where the version and the accused are practically the same in both the complaint and the challan cases, even a separate trial may not be necessary. The point had come up for consideration in Zulfiqar Ali Bhutto v. State PLD 1979 SC 53 where it had been held: "Therefore, there was no necessity for a separate trial of the to cases when, technically speaking, there were neither to sets of accused nor different versions nor any additional evidence to be examined by the complainant. It was only to avoid prejudice to the complainant that a particular procedure was devised in the reported case of Nur Elahi, but to say that invariably it should be followed even if the facts are distinguishable is not correct, as it does not amount to a declaration of law. "
5. The learned counsel contended that in the present case there was no need for separate trial as the accused and the allegations in the complaint as well as in the F.I.R. Were same. Leave is granted.