The necessary facts giving rise to the present petition filed under section 561-A, Cr.P.C. Are that on 26-9-1998 F.I.R. No-301 was registered at Police Station Abdul Hakeem, District Khanewal for an offence under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 at the instance of Mst. Riffat Parveen, respondent No.3 herein, wherein it had been alleged by respondent No.3 that her father namely Muhammad Aslam Fauji had been committing Zina with her against her wishes for a long time and as a .Result of which respondent No.3 had become pregnant. During the investigation the present petitioner namely Allah. Ditta as well as one Allah Din had also been implicated in this case. Upon completion of investigation a report under section 173, Cr.P.C. Was submitted by the local police on 10-7-1999 wherein the petitioner and the above mentioned Allah Din were opined to be guilty. On the basis of the challan submitted in that regard the Court of Session, Khanewal took cognizance of the case and the matter was entrusted to an Additional Session Judge, Khanewal for holding the trial. Subsequently on 16-2-2000 another report under section 173, Cr.P.C. And a challan were submitted by the local police before the learned trial Court wherein the local police had opined that Allah Din accused was innocent and besides Allah Ditta petitioner Muhammad Aslam Fauji accused was also found to be guilty by the police. Unfortunately the learned trial Court did not notice submission of Two separate challans arising out of the same F.I.R. And resultantly, in a mech4.Nical manner, on the basis of both such. Independent challans separate trials there initiated and charge was framed in both the said trials independently. It has been brought to the notice of this Court that four prosecution witnesses have already made their statements in the trial against Muhammad Aslam Fauji accused whereas no prosecution witness has so far been examined in the trial against the present petitioner and Allah Din co-accused.
2. The present petition has been filed by Allah Ditta petitioner before this Court under section 561-A; Cr.P.C. Praying therein that "in view of foregoing submissions it is respectfully prayed that both the challans i.e. State v. Muhammad Aslam Fouji and State v. Allah Ditta, etc., in the F.I.R. No.301 of 1998 dated 26-9-1998 of Police Station Abdul Hakeem may kindly be ordered to be consolidated and the trial Court be directed to try the same together/jointly." During the hearing of this petition on 27-6- 2000 it was felt by this Court that a report ought to be submitted by the learned Trial Court wherein the trial Court should explain under what circumstances it was proceeding with two trials and two cases arising out of the same F.I.R. The requisite report has already been received by this Court from the learned trial Court i.e. Additional Sessions Judge, Khanewal wherein the following comments have been made by the trial Court on the matters involved in this case:-- "2. True, the F.I.R. Was confined to incest only, but on the basis of developments during investigation, including allegations of sexual commission against the applicant and his co-accused on various occasions, they both had been sent up through an independent challan in the first instance.
Cognizance of their offence was accordingly taken against both of them in accordance with law. It was on their motion that the father, exonerated during investigation by the Prosecutrix herself, was subsequently challan separately. On this view of the matter, the supplementary challan ought to have been formulated by the police against the father. Procedural irregularity has, therefore, been committed by the police, insofar as the father is concerned who ought to have been challaned alongwith the applicant for want of his discharge by competent judicial forum. There is nothing wrong either with the challan submitted against the appellant or with the charge-sheet framed against him and his co--accused or the proceedings conducted in their case todate.
3.Adverthig to contents of Paragraphs Nos. 13 to 15, it may be submitted that though all the three ought to have been tried jointly and both the cases now merit to be consolidated to prevent duplication of proceedings, yet no illegality has so far been committed insofar as the applicant is concerned especially because no witness of the calender has as yet been examined in their case.
He shall be afforded with full opportunity to cross-examine each and every witness underneath and he shall be at liberty to impeach the character and credibility of each amid a test of truth.
4The applicant could conveniently seek leave of the Court to cross--examine the prosecutrix but he had obtained adjournment by denying to cross-examine the lady in the witness-box. No conviction can be based upon the deposition in chief against the applicant or his co-accused in a different trial nor had he otherwise made any written request for leave of the Court to cross- examine the prosecturix and the averment in that context is hereby denied vehemently.
3. During the arguments addressed by the learned counsel for the parties before this Court today consensus had emerged between all concerned that an unusual and bizarre method had been adopted by the learned trial Court to proceed with the trial of the above mentioned reports under section 173, Cr.P.C. Which had resulted in holding of two separate trials of two separate sets of accused persons arising out of the same F.I.R. Not only that two separate charge-sheets have been prepared in both these cases but also witnesses produced by the prosecution are separately examined and no opportunity is being provided to the accused persons of one' case to cross-- examine the witnesses in the other case. This mode of trial cannot be countenanced by this Court to be either fair or proper in the circumstances of this case. The learned counsel for both the parties to this case have also stated in so many words before this Court today that in the peculiar circumstances of this case it shall be fair and proper if the entire proceedings of the learned trial Court in both these cases are scrapped and a de novo trial ordered by this Court so as to secure the ends of justice.
4. For what has been discussed above this petition is admitted to regular hearing and allowed. The proceedings of both the trials which have so far taken place before the learned Additional Sessions Judge, Khanewal arising out of F.I.R. No.301 registered at Police Station Abdul Hakeem, District Khanewal on 26-9-1998 for an offence under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 are hereby set at naught and the learned trial Court is directed to start de novo proceedings while framing one charge on the basis of both the reports submitted under section 173, Cr.P.C. And then to record evidence in one trial alone rather than holding two trials in this case. With this direction the present petition is disposed of.
5. The parties are directed to appear before the Additional Sessions Judge Khanewal on 9-11-2000.