' This is an application under section 561-A Cr.P.C. For quashing of two complaints one by respondent No,2 Mushtaq Hussain and other by Police Station Datote sub judice before Additional Tehsil Court of Criminal Jurisdiction Rawalakote, Poonch.
2. The facts culminated into above-titled petition are that petitioner No,1 Abdul Khaliq lodged a report at Police Station Datote and the police registered a Case No,2 of 1996 on 6-10-1996 for offences under sections 324, 337/34 P.C. The police after completion of investigation forwarded a challan against (Mushtaq Hussain) respondent No,2 along with three other persons namely Zulfiqar Hussain, Abdul Qayyum and Khadim Hussain. The aforesaid persons are facing trial before the Additional Tehsil Court of Criminal Jurisdiction, Rawalakote.
3. Mushtaq Hussain respondent No,2 also through two successive applications one on 4-11-1996 to D.I.G. Police M'abad and other on 10-11-1996 to Prime Minister of Azad Kashmir complaining that the police concerned did not register the case against the complainant party in F.I.R. No,2 of 1996.
Mushtaq Hussain in his application to D.I.G. Police, submitted on 4-11-1996 nominated as many as 12 persons as accused including the petitioner (herein) Muhammad Saleem, Khalid Mahmood and Muhammad Asid sons of Hassan Mahmood, Ghazanfar son of Muhammad Zaheen, Javaid Shah son of Shafiullah Shah, Sohail and Fasil sons of Abdul Aziz, Mst. Khalida, Mst. Zubaida and Mst.
Hafeeza daughter of Abdul Aziz. The respondent No,1 nominated as many as 10 persons as accused including the petitioner Abdul Khaliq and 9 other persons leaving aside two persons namely Ghazanfar son of Muhammad Zaheen and Mst. Khalida daughter of Abdul Aziz in his second application submitted to Prime Minister of Azad Kashmir dated 10-11-1996.
4. The police in accordance with the direction issued to them by the higher authorities registered the complaint in 'Roznamcha' and referred the complainant Mushtaq Hussain to the hospital by preparing the injury-sheet. The Doctor examined Mushtaq Hussain and found the injuries on his person as simple by blunt weapon. The police after receiving the medico-legal-report pertaining to the injuries sustained by. Mushtaq Hussain, opined that the complaint registered in 'Roznamcha' did not constitute a cognizance offence and as such along with some evidence filed a complaint in the Court under section 337, P.C. Against Mr. Khalid and Asid sons of Hassan Muhammad, Fasil, Sohail sons of Abdul Aziz, Mst. Saeeda, Hafeeza, Zubaida daughter of Abdul Aziz and Javeed Shah son of Shafiullah Shah meaning thereby that the police did not accept the applications on behalf of Mushtaq Hussain to the extent of accusation against Ghazanfar, Muhammad Saleem, Mst.
Khalida and Abdul Khaliq. This complaint was made by Police Station Datote on 17-11-1996.
5. Respondent No,2 feeling aggrieved by the act of the police filed another private complaint in District Court of Criminal Jurisdiction Rawalakote-Poonch on 4-12-1996. The private complaint and the challani case by opposite-party under F.I.R. No,2 of 1996 were initially submitted before the District Court of Criminal Jurisdiction Rawalakote-Poonch wherefrom these cases, on change of forum were transferred to Additional Tehsil Court of Criminal Jurisdiction Rawalakote-Poonch. The complaint on the part of Police Station Datote was directly instituted in the Tehsil Court of Criminal Jurisdiction. All the three cases one challani case on the report of petitioner Abdul Khaliq and other two complaints on behalf of Police Station Datote and a private complaint by Mushtaq Hussain are now sub judice before the Additional Tehsil Court of Criminal Jurisdiction Rawalakote-Poonch and the said Court has taken the cognizance of all the three cases.
6. The complaint on the part of Police Station Datote against eight persons namely Khalid, Asid, Fasil, Sohail, Mst. Saeeda, Zubaida, Hafeeza and Muhammad Javeed is sub judice in the Court with an allegation under section 337, P.C. Whereas the private complaint by respondent No,2 is pending in the Court as many against as 11 persons including those arrayed in the line of accused in the complaint filed on 17-11-1996 by Police Station Datote. The private complaint was instituted on 4-12- 1996 with an addition of three more persons as accused, namely Abdul Khaliq, Muhammad Saleem and Mst. Khalida Aziz. This private complaint contains the allegation for offences under sections 324, 337, 342, 34, 147, 148, P.C. Against the accused persons numbering 11 in total.
7. The perusal of the private complaint shows that it was filed expressing no confidence on the police concerned. The complainant felt dissatisfied with the act of the police as they, with the connivance of the accused-party, omitted as, many as three persons to he nominated as accused and furthermore the police also, with the ulterior motive, did not level the charge against the accused persons accurately in accordance with facts of the case.
8. It is quite evident on the face of the private complaint lodged on 4-12-1996, and the complaint by Police Station Datote on 17-11-1996 that as many as eight persons namely Javaid, Mid, Fasil, Sohail, Mst. Saeeda, Zubada and Hateeza, Javeed Shah are arrayed in the line of accused in both the complaints. The allegation levelled against them is for offences under sections 337/324/34, 147, 148, P.C. In the private complaint by Mushtaq Hussain whereas the allegations against them in the complaint by Police Station Datote is for offence under section 337, P.C. It means that aforesaid persons i,e, the accused in the complaint filed by Police Station Date on 17-11-1996 are vexed twice for the offence under section 337, P.C. As both complaints arise out ,of the same incidence that took place on 6-.16- 19,96.. The trial Court is proceeding with al k the three cases arising out of one and the same incidence.
9. An application was moved in the trial Court on 29-1-1997 for dismissal of the complaint lodged by Police Station Datote. The trial Court after hearing the parties dismissed the aforesaid application vide its order dated 28-4-1998 and directed the complainant to produce evidence in support of his claim.
10. The petitioner who moved the application for dismissal of the complaint did not challenge the order of the trial Court dated 28-4-1996 before a competent forum. However, they along with other persons (accused in complaint) resorted to section 561-A Cr.P.C. By invoking the inherent jurisdiction of this Court. Hence this application under section 561-A Cr.P.C. For quashing of complaint by Police Station Datote and the proceedings initiated by the trial Court on the aforesaid complaint.
11. The learned counsel for the 'petitioner while submitting his arguments contended that both the complaints, under law, are deemed to be the private complaints for one and the same occurrence.
According to the learned counsel, the trial Court while taking cognizance of both the private complaints acted contrary to law on the subject and thus abused the process of the Court as the subsequent complaint filed on 4-12-1996 by the complainant was brought before the Court with a grievance against the police and the same including all those persons in the line of accused who were accused in, the complaint by Police Station Datote. Therefore, to proceed with the police complaint lodged on 17-11-1996 was' a futile exercise, the learned counsel maintained. It was further submitted that the complaint by Police Station Datote contained only an allegation for offence under section 337, P.C. Whereas the subsequent private complaint included, along with other allegations, the allegation for offence under section 337, P.C. Also. Thus the complainant, if succeeded to prove the allegation levelled against the accused party in his private complaint, naturally they would be punished for offence under section 337, P.C. Too along with the sentence for other offence mentioned in the private complaint and, if he did not succeed to prove his complaint, the accused persons would stand acquitted, the learned counsel contended. A person once convicted or acquitted could not be tried again for the same offence constituted under the same facts during same incidence, submitted the learned counsel. .
12. As against this the learned counsel for the respondent No,2 and the learned Assistant Advocate- General contended that the private complaint and the other complaint brought by the Police Station under a non-cognizable offence could go side by side and the trial Court committed no illegality while taking cognizance of both the complaints. To elaborate their point of view, the learned counsel relied upon a case from Pakistan Jurisdiction, i,e, PLD 1966 SC 708. According to the learned counsel, the above-referred case was helpful in resolving the controversy in hand. The perusal of the case-law cited by the learned counsel shows that per majority view it was held by honourable Supreme Court of Pakistan that when there are two complaints one on behalf of a private complainant and other by the police in shape of challan about the same incidence against two quite different sets of accused in both the complaints, the private complaint will be taken first by the Court and in case of acquittal or conviction, as the case may be, the prosecution shall he at liberty to choose whether or not, they want to proceed with--the challani case.
13. In the instant-case there is a police report under section 173, Cr.P.C. And two other complaints one by police in a non-cognizable offence and other a private complaint by the accused party in F.I.R. No,2 of 1996.
14. The respondent No,2, by challenging the bona fides of the police, instituted a private complaint by arraying all the accused in the police complaint (other than challani case) in the line of accused with an addition of three more persons as accused. Morever, the respondent No,2 in his private complaint has added some more offences under sections 324, 342. 147, 148 along with section 337 P.C. Meaning thereby that the accused person namely Khalid, Asid, Fasil, Sohail, Mst.
Zubada, Hafeeza, Saeeda and Javeed are arrayed in the line of accused twice on the basis of same facts and more ever, during one and the same incidence.
15. The report submitted by the police after investigation into a non-cognizable offence without the permission of a Magistrate is not a police report under section 173, Cr.P.C. But in fact it is a complaint only No doubt there are divergent views by the superior Courts from Indian jurisdiction on this law point but the case-law available from Pakistan jurisdiction mostly favours the view that a report by the police after investigation into a non-cognizable offence without the permission of a Magistrate is not a police report under section 173, Cr:P.C.
16. As earlier stated that there are one challani case and two complaints about the same incidence and the trial Court is proceeding with the same. Both the complaints filed by or on behalf of the accused party in the cross-case (Police Report under section 173, Cr.P.C.) are instituted at the instance of respondent No,2. It means that are two complaints before the trial as a counter version to the report ted by the police under section 173 C. On the application of opposite-party seed in the complaint).
17. As it has been pointed out that the respondent No,2 Mushtaq Hussain initially moved two successive applications to Prime Minister of Azad Kashmir and D.I.-G. Police on the basis of which the police submitted a complaint in the Court on 17-11-1996 under section 337, P.C. Against a set of accused, but subsequently he lodged another private complaint in the Court on 4-12-1996 challenging the bona fides of the police. In his private complaint, he arrayed all those persons nominated as accused in the complaint on 17-11-1996 with an addition of three more persons. The private complaint contained section 337, P.C. Along with few other sections stated in earlier part of judgment.
18. The above stated facts show that the 8 persons arrayed in the line of accused in the complaint lodged on 17-11-1996, are also included in the private complaint filed on 4-12-1996. Morever, it is also evident that the aforesaid eight persons are also accused for offence under section 337, P.C. In both the complaints arising out of same incidence.
19. Let us see what relevant law says on the subject. The relevant provisions of law is section 403, Cr.P.C. Under the aforesaid section an accused when tried for a certain offence and is convicted or acquitted he cannot again be tried for the same offence on the same facts. In the instant case, let us say that the complainant succeeds to prove his private complaint lodged on 4-12-1996.
Naturally the accused persons shall stand convicted and, if he fails to establish his case, the accused will be acquitted. It means that section 403, Cr.P.C. Shall operate as a bar to proceed with the complaint instituted before the trial Court on 17-11-1996. Therefore, it will be a futile exercise to keep the complaint lodged by Police Station Datote on 17-11-1996 alive on the file of the Court.
20. The trial Court fell in error to understand the controversy between the parties. The trial Court has opined that the trial of the complaint filed by the police for a non-cognizable offence did not vitiated merely on the ground that the investigation was without the order of the Magistrate.
According to the learned Court, it could be treated as complaint/private complaint under section 190, Cr.P.C. The question here is not the one pointed out by the trial Court. The controversy is whether two complaints arising out of the same incidence and facts and against the same set of the accused can go side by side. The answer definitely is in negative as it is not permissible under section 403, Cr.P.C.
21. The persons nominated as accused in the complaint by police on 17-11-1996 are included in the private complaint by respondent No,2 on 4-12-1996. The offence under section 337, P.C. Also finds place in the private complaint subsequently filed on 4-12-1996 by challenging the bona fides of the previous complaint lodged by the police on 17-11-1996. The grievance of the complainant Mushtaq Hussain (respondent No,2) can easily be redressed through his private complaint if he succeeds to prove the same.
22. The nutshell of the above discussion is that the trial Court can proceed with or try the accused only in one complaint. As the complainant Mushtaq Hussain has posed no confidence on the complaint instituted by Police Station Datote on 17-11-1996 and has also added three more persons along with an addition of few more offences under sections 324, 342, 34, 147 and 148 P.C., the legal course would be to allow the trial Court to proceed with the private complaint filed on 4-12-1996 as counter version to the police report under section 173, Cr.P.C. Submitted at the instance of an application by opposite-party i,e, petitioner herein.
23. I have the honour to go through the case-law referred by the learned counsel for the respondent (PLD 1966 SC 708). Without going into the debate as to what extent the majority view expressed in the aforesaid judgment could help to resolve the controversy happened to arise in that case, the same is not applicable to the instant case. In that case, there were two complaints one police report under section 173, Cr.P.C. And other a private complaint against two quite different sets of accused. The accused persons in police report were quite different from those arrayed as accused in the private complaint, therefore, the case law referred above is not helpful in resolving the controversy in the instant case.
24. The conclusion that emerges out of the above discussion is that to proceed with the complaint filed by the police on 17-11-1996 is not warranted under law in the presence of the private complaint brought in the Court on 4-11-1996 with the same story against almost the same set of accused by enlisting the same set of witnesses. The impugned order obviously offends the law and to continue with the complaint instituted in the trial Court on 17-11-1996 is nothing but an abuse of process of the Court. Therefore, by exercising the inherent powers under section 561-A, Cr.P.C., the complaint filed by the police on 17-11-1996 along with all the subsequent proceedings by the Court after its institution are hereby quashed. The trial Court now shall proceed with a police report under section 173, Cr.P.C. And the private complaint instituted by the respondent No,2 on 4-11-1996.