' This criminal revision is directed against the order dated 11-7-2002 passed by an Additional Sessions Judge, Taxila.
2. The facts briefly are that on 20-9-1999 case F.I.R. No,460 was registered under section 302/34, P.P.C. Upon the complaint of Muhammad Gulzar son of Ahmed Din for the double murder of Nadeem Akhtar and Muhammad Akram, wherein, Abdul Rasheed petitioner, Saeed Akhtar, Javed Akhtar and Nahid Akhtar were nominated with specific roles. After usual investigation, conducted more than once, accused Saeed Akhtar, Javed and Nahid Akhtar who are sons of the , petitioner were declared as prima facie innocent and were placed in Column No,2 of the challan which was submitted in the Court.
3. Complainant Muhammad Gulzar, not feeling satisfied with the investigation conducted by the police filed a private complaint on 17-1-2000 in respect of the same occurrence, wherein, the same four accused were named. Specific role of causing fatal fire-arm injuries to the deceased were attributed to all the four accused.
4. As both the challan in case F.I.R. No,460 of 1999 and the private complaint mentioned above came to be fixed before the same learned trial Court, a question was raised as to which proceedings out of the two shall take precedence over the other. Vide order, dated 2-10-2000 the learned Additional Sessions Judge, Rawalpindi held that propriety demands that both the cases be consolidated together so however, that the proceedings in the complaint case shall be taken up first. On the same date the learned trial Court also charge-sheeted all the four accused.
5. Subsequently, the petitioner moved an application before the trial Court with the following prayer:--{{URDU TEXT}} ' This application in fact, amounted to seeking a review of the earlier order dated 2-10-2000 whereby it was held that the proceedings in the complaint case were to be taken up first and the.
State case would be taken up subsequently. The learned trial Court vide order dated 11-7-2002 dismissed the said application mainly on the ground that no such review was permissible.
6. Mr. Tariq Azam Choudhary, Advocate for the petitioner has oontended that the police conducted proper investigation in the case F.I.R. No,460 dated 20-9-1999 and found that the three accused namely Javed Akhtar, Saeed Akhtar .And Nahid Akhtar were found prima facie innocent and that in this view of the matter there was no justification for the complainant to file a private complaint. He also contended that the order of consolidation of the challan case with the private complaint was an irregular exercise of jurisdiction by the learned trial Court and had prejudiced the case of the petitioner and his co-accused. It was prayed that the order of consolidation of the private complaint with the challan case and holding trial in the complaint case first may be set aside.
7. Arguments have been heard and record perused.
8. It was as far back as 2-10-2000 that the learned trial Court had passed an order of consolidation of both the challan case as well as the case based upon the private complaint. It was also through this order that it was decided that the complaint case shall be taken up first and .The State case shall be taken up subsequently. The petitioner and his co-accused were charged-sheeted on 2-10- 2000. Neither the petitioner nor his co-accused challenged this order of consolidation etc. In any higher forum. The application which culminated in the impugned order dated 11-7-2002 was nothing more than an attempt to seek review of the order earlier passed by the same Court. The learned trial Court was correct in rejecting the prayer of the petitioner through the impugned order.
9. Even otherwise it is in accordance with the principles of criminal administration of justice that where a complainant who has initiated the prosecution machinery of the State through lodging an F,I.R. Is not satisfied with the investigating process carried out by the police, he may file a private complaint in respect of the same occurrence. The question as to the manner of trial of two cases relating to the same murder, one instituted by the police and the other made through private complaint came up for discussion in the case of Noor Illahi v. The State and 2 others PLD 1966 SC
708. Their Lordships of the Supreme Court ruled that a fair procedure would be for the trial Judge to take the complaint case first for trial. The modalities for the recording of evidence have also been laid down so that no prejudice is caused to either the complainant or the accused party. The following passage may be quoted with advantage:-- "During that case the learned trial Judge may call the witnesses mentioned in the police challan, if they were not already examined on behalf of the complainant, as court-witnesses under section 540-A of the Criminal Procedure Code, so that they can be cross-examined by both the parties.
This will enable the Court to have the whole relevant evidence included in one trial and a decision could be arrived at after a proper consideration of the entire material relied on by the parties. The accused persons would in addition obviously have the right to adduce defence evidence if they so choose.
' This procedure is being suggested to avoid a difficulty that might otherwise confront the complainant. If the police challan is taken up first for trial, the complainant would be under a handicap in so far as he would not be in a position to cross-examine the witnesses for the prosecution."
10. The learned counsel for the petitioner has attempted to distinguish the aforesaid case by making reference to the case of Raja Khushbakhtur Rehman and another v. The State 1985 SCM R 1314 and Zulfiqar Ali Bhutto v. The State PLD 1979 SC 53 to contend that rule laid down in the case of Nur Elahi (supra) has been departed or has at least been modified through the above quoted judgments by the apex Court.
11. I have gone through the judgment rendered by the apex Court in the case of Raja Khushbakhtur Rehman and another v. The State and the case of Zulfiqar Ali Bhutto (supra) but do not find that the principle laid down in Nur Elahi's case has been in any manner modified or diluted by the later dicta. Both the afore-cited cases were considered by the Honourable Supreme Court in Rasheed Ahmed v. Asghar Ali and others PLD 1986 SC 737 and after appreciating the facts of the two cases mentioned above and comparing with the proposition in hand, it was verily held that the principle laid down in Nur Elahi's case would still be applicable in the circumstances of the case.
' The present case falls squarely within the bounds of law as enunciated by the apex Court in Nur Elahi's case (supra). For the above reasons there is no merit in this criminal revision which is hereby dismissed.