2013 PLP 1599 (MLD)

ABDUS SATTAR ASGHAR, J.

This criminal revision under sections 435/439, Cr.P.C. is directed against the order dated 31-10-2011 passed by learned Additional Sessions Judge Vehari whereby petitioners' application to initiate the proceedings in the Challan case and to stop the proceedings in the complaint case was dismissed.

2. Succinctly the facts leading to this petition are that on the statement of Muhammad Nawaz son of Abdul Ghafoor case F.I.R No.60 of 2009, dated 1-3-2009, under sections 302/148/149, P.P.C., Police Station Machiwal, District Vehari with regard to murder of his real brother namely Muhammad Sarfraz was registered against Muhammad Sajjad and Muhammad Wasim petitioners Nos.1 and 2 and four unknown persons later on nominated as Muhammad Riaz, Muhammad Din, Muhammad Yousaf, Amir Rasheed and Muhammad Naeem respondents Nos.3 to 7 through supplementary statement. In the police investigation all the above seven accused were found innocent. In result of its own investigation police submitted the challan against accused Zulfiqar and Azam as actual culprits. The complainant party being dissatisfied with the police investigation and submission of challan lodged private complaint through Rab Nawaz the other real brother of Sarfraz deceased against present petitioners. Besides above, Muhammad Nawaz complainant of the F.I.R being real brother and other legal heirs of Sarfraz deceased submitted their affidavits in favour of Zulfiqar and Azam challaned by the police declaring them innocent at the bail stage. The learned trial Court after recording cursory evidence in the private complaint lodged by Rab Nawaz summoned the petitioners as accused who pleaded not guilty. Consequently, proceedings in the State case were stopped and proceedings in the private complaint case were taken up following the dictum laid down by the apex Court in Nur Elahi's case (PLD 1966 Supreme Court 708). Being dissatisfied petitioners lodged application before the learned trial Court to stop the proceedings in the complaint case and to initiate the proceedings in the challan case, which was dismissed through impugned order.

3. It is argued by learned counsel for the petitioners that in the State case police submitted three successive challans; that first incomplete challan was submitted on 16-5-2009 against Amir Rashed placing his name in Column No.2 of the challan, the second supplementary challan was submitted on 8-8-2009 against present petitioners while placing their names in Column No.2 and third supplementary challan was submitted on 29-7-2011 against Zulfiqar and Azam while placing their names in column No.3; that dictum laid down in Nur Ellahi's case PLD 1966 SC 708 is not applicable in this case as accused of the first two supplementary challans and accused of the private complaint are the same; that the learned trial Court fell in error while rejecting the petitioners' application through the impugned order; that in the given circumstances learned trial Court could have taken up the proceedings in the State case as well as in the private complaint simultaneously to avoid conflict of judgments. He has taken reliance upon Muhammad Asghar v. The State and 2 others (2006 PCr.LJ 486).

4. On the other hand learned counsel for the respondent has vehemently opposed this petition with the arguments that in the State case police has altogether discarded the complainant's version in the F.I.R. by declaring the nominated accused as innocent rather introduced a new set of accused namely Zulfiqar and Azam with different set of witnesses portraying a different version of the occurrence as compared to the private complaint, therefore, learned trial Court following the dictum laid down in Nur Elahi's case PLD 1996 SC 708 has rightly stopped the proceedings of the challan case while taking up proceedings of the complaint case in the first instance. He has further relied upon Syed Muhammad Hussain Shah v. Abdul Hamid and 5 others 1981 SCMR 361.

5. Arguments heard. Record perused.

6. It is obvious on the record that this is a case of two versions. Police while discarding the complainant's version as set forth in the F.I.R. has introduced a new set of accused comprising Zulifqar and Azam with new set of witnesses, therefore, I am of the considered view that the dictum laid down in Nur Elahi's case is fully applicable to the facts of the instant case. The Hon'ble apex Court in the Nur Elahi's case has categorically manifested that in such like circumstances complaint case is to be taken first and the prosecution witnesses listed in the police challan may be examined as Court witnesses under section 540-A, Cr.P.C. if so solicited. It further declared that police challan to be taken up only if compliant case results in acquittal and in case of conviction, police case to be withdrawn by Public Prosecutor under section 494, Cr.P.C. The afore referred dictum in Nur Elahi's case has been followed in Zulfiqar Ali Bhuto's case (PLD 1979 Supreme Court 53) as well as in another case of Syed Muhammad Hussain Shah's case 1981 SCMR 361 (Supra).

7. I have carefully gone through the facts of Muhammad Asghar's case (supra) cited by learned counsel for the petitioners. The facts of the cited case are altogether distinct and distinguishable from the facts this case thus of no avail to the petitioners.

8. For the above reason and discussions, I do not find any legal infirmity in the impugned order passed by learned trial Court. This criminal revision having no merit is dismissed. MWA/M-299/L Revision dismissed.