' This judgment will dispose of Criminal Appeal No, 1308 of 2001 filed by Zaka Ullah appellant, who was, convicted and sentenced by learned Judge, Special Court (S.T.A.) 1975, Wazirabad to undergo imprisonment for life under section 302(b), P.P.C. And a compensation of Rs-.50,000 as required under section 544-A, Cr.P.C. On in default six months' S.I. With the benefit of section 382-B, Cr.P.C.
Vide his judgment, dated 31-7-2001,
2. Brief facts of the case as disclosed in the complaint Exh.P.D. Are that on 7-2-1997 at about 12-45 p.m. The complainant alongwith others was going for Eid shopping and when they reached near the Haveli of Naseem Ghuman, they were way laid by the accused who were duly armed with fire- arm, one of the accused, namely, Zaka Ullah fired a shot with his 44 bore gun, which hit Qaiser Mahmood on the right side of his back and he fell down.
' The motive alleged was previous litigation.
3. After recording the preliminary evidence, the process was issued against all the accused to face trial. It may be noted here, that the local police also submitted challan in the F.I.R. No, 18 of 1996. The police after investigation disbelieved the version of the complainant and held Ansar Mahmood to be real culprit.
4. At the trial, the complainant producd eight witnesses in all, thereafter, the state events of the appellant and his acquitted discused were recorded under section 342, :r.P.C. In which they pleaded innocence and claimed false implication. They also produced one Akthar Hussain as D.W.1 and Imdad Hussain, S.I. As D.W.2 and closed their evidence:
5. In support of this appeal, learned counsel for the appellant submits that learned trial Court has not followed the law laid down in Noor Elahi case reported in PLD 1966 SC 708. He further submits that prejudice has been caused to the appellant. Also submits that in challan case and in complaint case versions were totally different and accused were also different, that learned trial Court should firstly had consolidated both the cases and then should examine the witnesses mentioned in the calendar of witnesses in compliant case, thereafter, if any witness was not examined, mentioned in the challan case then they should have been summoned as Court witness which has not been done in this case. He submits that this is a criminal appeal and not a civil appeal, if even no ground has been taken by the appellant in the memo. Of appeal the same can be raised before this Court. Also submits that appeal is continuation of trial. He has also relied upon PLD 1995 SC 66 on the point that question of prejudice in the case can be raised at any time. Add that according tb Article 189 of the Constitution of Islamic Republic of Pakistan Courts in the country have to follow the law, laid down by the Hon'ble Supreme Court of Pakistan, that trial was held by the trial Court as S.T.A. Court but he had got no jurisdiction to try the same because according to sections 4 and 5 of the said Act, that trial Court has got no jurisdiction in this regard. He has also relied upon 1994 PCr.LJ 717 and 1997 PCr.LJ 1295. He lastly, submits that trial in the instant case is corum non judice and in this regard he has relied upon 1994 PCr.LJ 1992.
6. On the other hand, learned Additional Advocate-General assisted,. By learned A.A.-G., learned State Counsel and learned counsel for the complainant who has also filed Criminal Revision No, 611 of 2001 submits that question of jurisdiction should have been raised at the initial stage and not at this stage, that no prejudice has been caused to the accused-appellant that in this regard no ground has been taken in the memo. Of appeal, that against the acquittal of accused Ansar Mahmood in the challan case under section 249-A, Cr.P.C. No appeal against his acquittal has been filed. Learned Additional Advocate-General has also relied upon PLD 1981 Karachi 141 while learned counsel for the complainant has relied upon 1997 SCMR 334 and learned State Counsel has relied upon 2002 SCMR 203 relevant portion at page 208.
7. I have heard learned counsel for the parties and have also gone through the judgment cited by learned counsel for both the parties. In the instant case, F.I.R. Was lodged by Ghulam Haider P.W.2 against Inam Elahi, Zafar Ullah, Muhammad Riaz, Liaquat Ali and Zaka Ullah but during the course of investigation, police came to the conclusion that all these accused including the present appellant were innocent, they were got discharged and the police recorded the statements of Said Begum, Aziz Begum and Muhammad Arshad and challaned one Ansar Mahmood. The version in the challan case was that in fact there was a scuffle between Ansar Mahmood and ,Qaiser deceased on snatching the pistol and during that scuffle Qaiser received an injury and police submitted the challan against Ansar Mahmood but complainant sticked to his story and filed a complaint against all the five accused including the present appellant on 25-11-1998 but trial Court on an application under section 249-A, Cr.P.C. In challan case acquitted Ansar Mahmood, thereafter, learned trial Court held the trial of the present appellant alongwith his co-accused, acquitted four accused but convicted the present appellant. Now the law has been set right by the Hon'ble Supreme Court of Pakistan in PLD 1966 SC 708 titled as Noor Elahi v. The State, in which it was held by their Lordships that when there are two cases, one challan and other complaint case, different set of accused, different versions in both the cases then both the cases should be consolidated, complaint case should be taken first and after examining the witnesses in the complaint case, the Court shall summon remaining witnesses mentioned in the calendar of witnesses in challan case as C.W. But in the instant case, that law has not been followed. Under Article 189 of the Constitution of Islamic Republic of Pakistan which is reproduced below: "Any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other Courts in Pakistan."
' In the present Article, I will impress upon the word when it decides a question of law. (underlining is mine).
' The instant question of law was decided by the Hon'ble Supreme Court of Pakistan in 1966. Till today, that judgment still holds the field and that judgment has not been set aside or modified and in my view, the better and right course for the trial Court was to follow the said judgment but the same has not done in this case. The prejudice which has been caused to the accused in my opinion was that after consolidating the cases if the rial Judge had summoned the witnesses under section 540, Cr.P.C. Mentioned in the challan case, who were already not examined in the complaint case in that situation then appellant had a right to cross-examine the witnesses which opportunity was not afforded to him and in my opinion, this prejudice has been caused to the accused-appellant. Learned Addl. A.-G. At the very out set has also relied upon PLD 1981 Karachi
141. He has read before me the some portions of the said judgment and that judgment in fact supports the contentions raised by learned counsel for the appellant.
After having heard the learned counsel for the parties and going through the judgments cited by learned counsel for both the parties, I am of the considered opinion, as the law has not been followed in this case as reported in PLD 1966 SC 708 titled as Noor Elahi v. The State the judgment rendered by the learned trial Court is set aside. Case is remanded back and it shall be heard by learned Sessions Judge, Gujranwala himself, who will follow the law as enunciated in PLD 1966 SC 708 and will decide the case within three months on the receipt of order of this Court and appellant would remain behind the bars during that period. Copy of the judgment of this Court shall be transmitted to learned Sessions Judge, Gujranwala within seven days without fail.