1999 PLP 2698 (YLR)

15‑2‑1993.

2. On 7‑8‑1993 the challan case was pending when Muhammad Saleem complainant/respondent filed a private complaint against the petitioners on the charge under section 302/34, P.P.C. without disclosing that the challan of the case has already been submitted in the Court of Sessions Judge. On 25‑8‑1993 the learned Sessions Judge entrusted the complaint to Ch. Muhammad Mahmood, Additional Sessions Judge for disposal of complaint only, while the challan case was sent to the Court of Mr. Rustam Ali Malik, Additional Sessions Judge, Sheikhupura for trial. In complaint case pending in the Court of Mr. Muhammad Mahmood, few adjournments were sought by the complainant for recording of preliminary evidence. Ultimately on 1‑12‑1993 the learned Additional Sessions Judge, Mr. M. Mahmood Ch. passed the order stating therein that after going through the complaint, copy of P.I.R. No.323/92. and copy of post‑mortem report relating to Nawazish Ali, he found that prima facie the offence punishable under section 302/34, P.P.C. has been committed. The petitioners were summoned for 8‑12‑1993 to face the trial. On 19‑12‑1993 the learned Additional Sessions Judge recorded the joint statements of accused persons on which thumb marks of the petitioners were obtained for delivery of copies of the statement of witnesses, copy of the complaint and copy of the statement of the complainant recorded on I‑12‑1993 was also supplied. The case was adjourned for recording of evidence of the complainant patty. On objection of maintainability of the complaint raised by them, the petitioners prayed for hearing of the case by some other Court but the objection was overruled by the learned Additional Sessions Judge, who has been impleaded as respondent No. 2 in the present petition. The proceedings taken on the complaint by the learned Additional Sessions Judge have been sought to be quashed against the petitioners through the instant petition.

3. Mian Muzaffar Ahmad, learned counsel for tile petitioners argued that in view of pendency of the challan case, on the same statements of fact, same set of witnesses against the same accused the complaint is legally not maintainable and he placed reliance on Mst. Aziz Begum v. Muhammad Khushdil and another (PLD 1981 Kar. 141), Nur Ellahi v. The State and others (PLD 1966 SC 608) and Zulfiqar Ali Bhutto v The State (PLD 1979 SC 53). It is also argued that Illaqa Magistrate was not competent to send the complaint to the Court of' Sessions Judge as it is violation of provisions of sections 190(3) and 193, Cr.P.C as under the Law Reforms Ordinance, 1972, only the judicial Magistrate can send up the case for trial to the Court of Sessions Judge. Since the case had already been sent up to the Sessions Court by forwarding the challan and there was no fresh case which was to be sent up to the Sessions Court, therefore, the proceedings in the private complaint were not fair and proper in the Court of Additional Sessions Judge. It is further alleged by the learned counsel for the petitioners that the complaint has been filed to cause harassment to the petitioners with mala fide intention. It is clear abuse of the process of the Court. The purpose of complaint is only to oust the Public Prosecutor from conducting the case on behalf of the prosecution and to bring a private counsel which is not permissible under the law. The duality of proceedings is not legal, therefore, had prayed for quashment of the proceedings in the private complaint titled Muhammad Saleem v Abdul Sattar etc. on the charge under section 302/34, P.P.C.

4. Learned counsel appearing on behalf of the complainant has opposed the quashment petition and has stated that it is a settled law that since the two accused persons were declared innocent by the police during the investigation and the complainant was not satisfied with the investigation conducted by the police, under the law trial is to start first on the private complaint and all the witnesses cited in the challan case can be examined as Court witnesses under section 540, Cr.P.C. In case of acquittal of all the accused persons in complaint case the challan case can be taken up later on or in the case of conviction of the accused persons in the trial of the complaint the Public Prosecutor can withdraw the prosecution case. The State Counsel has also opposed the quashment of the proceedings.

5. I have considered the arguments of the learned counsel for the parties and have gone through the record.

6. It appears that the trial had commenced on the complaint and the learned trial Court had taken the cognizance by summoning the accused persons to face the trial. Reliance on the case of Nur Ellahi and Zulfiqar Ali Bhutto (supra) is unfounded. It is proper procedure that the trial on the private complaint should be taken first than the challan case, provided there is some material difference in the complaint and the challan case. In a case Raja Khush Bakhat ur Rehman v. The State 1985 SCMR 1314 it was held that the trial Court has got the Dower to summon the petitioners (accused who had been placed in Column No.2).

7. The learned counsel does not deny that the trial Court is possessed of such power. He has only contended that the trial Court had not taken proper note of the fact that the challan case has already been sent up and the complaint case cannot proceed in presence of the challan case. The contention has no force as the learned trial Court has were declared innocent by the police during the investigation and the complainant was not satisfied with the investigation conducted by the police, under the law trial is to start first on the private complaint and all the witnesses cited in the challan case can be examined as Court witnesses under section 540, Cr.P.C. In case of acquittal of all the accused persons in complaint case the challan case can be taken up later on or in the case of conviction of the accused persons in the trial of the complaint the Public Prosecutor can withdraw the prosecution case. The State Counsel has also opposed the quashment of the proceedings.

5. I have considered the arguments of the learned counsel for the parties and have gone through the record.

6. It appears that the trial had commenced oil the complaint and the learned trial Court had taken the cognizance by summoning the accused persons to face the trial. Reliance on the case of Nur Ellahi and Zulfiqar Ali Bhutto (supra) is unfounded. It is proper procedure that the trial on the private complaint should be taken first than the challan case, provided there is some material difference in the complaint and the challan case. In a case Raja Khush Bakhat ur Rehman v. The State 1985 SCMR 1314 it was held that the trial Court has got the Dower to summon the petitioners (accused who had been placed in Column No.2).

7. The learned counsel does not deny that the trial Court is possessed of such power. He has only contended that the trial Court had not taken proper note of the fact that the challan case has already been sent up and the complaint case cannot proceed in presence of the challan case. The contention has no force as the learned trial Court has summoned the petitioners after considering the evidence and documents available on the file in support of the allegations levelled against the accused and also after recording the statement of the complainant, has passed a speaking order which suffers from no legal infirmity and was not challenged by the petitioners in revision. This is a question of fact whether the complainant was satisfied with the investigation of the police in a challan case or the evidence was properly collected and placed on record.

8. The petitioners have an opportunity to ask for stay of proceedings in the complaint case or to ask for trial in the callan case, before the trial Court.

9. After commencement of the trial in a complaint case the proceedings initiated cannot be termed as abuse of process of the Court to invoke the inherent jurisdiction under section 561‑A, Cr.P.C. for quashment of the proceedings.

10. Generally the complaint case is to start first and then the challan case, if that is necessary. The trail Court is also competent to consolidate both the cases or start the trial simultaneously in both the cases. Reference is made to Atta Jillani v. The State and another 1980 PCr.LJ 901 and Aziz‑ur‑Rehman v. The State (PLD 1987 Lah 245)

11. I do not want to comment on the merits or demerit of the case. It is open to the patties to take any objection to the procedure E to be adopted by the trial Court in a complaint case or in the challan case submitted by the police.

12. The trial Court is directed to proceed with the trial of the case after considering the objection of the parties, if any. With the above observation this petition having no force is dismissed. N.H.Q./A‑113/L Petition dismissed.