2006 P Cr (PLP)

KHAWAJA MUHAMMAD SHARIF, J.

Facts of the case are that the petitioner lodged a F.I.R. No.106 of 2000, dated 14-3-2000 at Police Station Shakargarh under sections 302/199/34, P.P.C. for the murder of Lutaf Ullah. During the course of investigation the police came to the conclusion that the accused mentioned in the F.I.R. are innocent so they were not arrested. Feeling aggrieved the complainant filed a complaint on 1-8-2000. After recording the preliminary evidence the respondents were summoned. Learned trial Court took the cognizance and framed the charge on 15-10-2004. Thereafter recorded the statements of three witnesses on 19-10-2004. In the meanwhile after taking cognizance the learned trial Court also summoned the challan file. In the challan file all the three respondents were placed in Column No.2 of the challan form because report under section 173, Cr.P.C. indicated that respondents are innocent and the case may be filed as untraced. Learned trial Court on the application of the respondents ordered to start the proceedings in the challan case with further order that the complaint case should also be annexed with the challan case. Petitioner has challenged the impugned order, dated 11-11-2004.

2. Learned counsel for the petitioner in support of this petition submits that it is correct that accused in both the challan case and the complaint case are the same and even version in both the cases is the same but finding and opinion of the police regarding the innocence of the present three respondents has prejudiced the case of the petitioner so he felt necessity of filing the complaint. He has relied upon PLD 1966 SC 708; 1984 SCMR 221; 1981 SCMR 361; PLD 1980 SC 168; 2001 PCr.LJ 244 and PLD 2004 SC

219. The consideration which has been laid down before this Court is that the proceedings in the complaint case should be started first following the rule laid down in the above said law books specially PLD 1966 SC 708.

3. On the other hand learned counsel for the respondents submits that accused are the same, witnesses are the same and even version is the same so there is no need to start the complaint case first and moreover, the learned trial Court has consolidated the challan case and complaint case and the learned trial Court has rightly consolidated both the cases. He has also tried to distinguish the present case from Noor Elahi's case PLD 1966 SC 708; and he has relied upon PLD 1979 SC 53; 1984 SCMR 221; 1985 SCMR 1341; 1981 SCMR 361 and 1997 SCMR 334.

4. Learned Acting Advocate-General is also of the view that complaint case should be started first and the witnesses mentioned in the complaint case may be examined as prosecution witnesses and then the witnesses mentioned in the challan case should be examined as C.W. following the rule laid down in the Noor Elahi's case.

5. I have heard the learned counsel for the parties. The grievance of the petitioner who lodged the complaint in the above said F.I.R. was that police with mala fide intention declared the accused mentioned in the F.I.R. as innocent and never arrested them so he felt the necessary to file the complaint before the learned trial Court and the learned trial Court after recording the preliminary evidence summoned the accused persons. The Court framed the charge as mentioned above and then statements of three P.Ws. were recorded. Thereafter the Court also summoned the challan case and on the application of the respondent started the proceedings in the challan case which have been challenged through this revision petition. The Investigating Officer who was mentioned as witness in the challan case figures nowhere in the complaint case. Now if the challan case is to be taken up first then the petitioner will have no right to cross-examine the Investigating Officer to bring the truth on the record because Investigating Officer had declared the respondents innocent without any material on the record. So I am of the considered opinion that the law laid down in Noor Elahi's case is totally applicable in the instant case result is that the impugned order, dated 11-11-2004 is set aside. Learned trial Court is directed to stop the proceedings in the challan case and to start the proceedings in the complaint case. All the witnesses mentioned in the complaint case shall be examined as P.Ws. while the remaining witnesses which are mentioned in the challan case shall be allowed to be examined as court-witnesses in order to bring the truth on the record. With these observations this petition stands disposed. H.B.T./M-366/L Order accordingly.