1997SCMR334 (PLP)

MUHAMMAD BASHIR KHAN JEHANGIRI, J.‑‑‑This appeal with leave of the Court arises from the judgment of a learned Judge in Chambers of the Lahore High Court, Multan Bench, Multan, whereby the appeal filed by respondents Nos.l to 4 herein was allowed, the convictions and sentences passed by the learned trial Judge were set aside and the case was remanded to the learned Sessions Judge, Dera Ghazi Khan, for trial afresh.

2. The brief facts as narrated in the leave granting order are that on 5‑6‑1992 the appellant lodged an F.I.R. alleging that he and Zulfiqar respondent No. 1 had jointly purchased ' DOIIa' pick‑up from one Pathan for a consideration of Rs.2 lacs. They had paid Rs.60,000 in cash and the balance was to be paid at monthly instalment of Rs.3,

000. He alongwith Zulfiqar plied the pick‑up for two months. Zulfiqar paid Rs.20,000 of his share while the appellant sold his share to Massu son of Elahi Bakhsh. Massu had to pay Rs.22,000 to the appellant but he paid Rs.18,000 and promised to pay the balance of Rs.4,000 later on. Zulfiqar and Massu were bound to pay instalments to the Pathan. On non‑payment, Pathan seized the pick‑up from Zulfiqar and Massu who later on settled the matter with him. Massu and Zulfiqar were paid off by Pathan who thereafter started demanding the amount from the appellant. It seems that there was some compromise talk with the intervention of one Irfanullah Khan in which Massu and Zulfiqar's claim was ‑treated to be false but Zulfiqar and Massu insisted to recover this money from the appellant. On the night when the incident occurred, the appellant alongwith Pandhi and Rahim Bakhsh real brothers were sleeping at Chah Choharwala while Muhammad Bakhsh son of Bagha was ploughing land in the nearby field. At midnight Zulfiqar and Massu respondents alongwith two unknown persons armed with guns appeared at the scene. Zulfiqar and Massu raising ' Lalkara' to teach lesson for non‑payment of price of the pick‑up fired one shot each with their respective weapons. The shot fired by Zulfiqar hit Rahim Bakhsh while the shot fired by Massu hit Pandhi. The appellant also received injuries as a result of firing of the accused. Rahim Bakhsh and Pandhi succumbed to the injuries at the spot. It was stated by the complainant that he had identified Zulfiqar and Massu in the light of lantren who alongwith their unknown culprits escaped after committing murder and causing injuries. It seems that during police investigation Suba and Hussain Bakhsh were found to be the unidentified culprits `and the police opined that Zulfiqar and Massu were innocent. The challan was accordingly filed in the Court in which Suba and Hussain Bakhsh were declared as the accused while Zulfiqar and Massu were not shown as such. The appellant then filed a private complaint on the same allegation as stated in the F.I.R. in which he named all the four respondents as accused. The learned trial Court convicted all the accused under sections 302‑b read with section 34, P.P.C., 324/34 and 452/34, P.P.C. The appellant filed a revision seeking enhancement of sentence. The respondents also filed appeals which were decided by the impugned judgment.

3. Leave was granted to consider, firstly, whether the learned Single Judge in the High Court was legally correct to rely on the dictum of this Court reported as Nur Elahi v. The State and 2 others (PLD 1966 SC 708) to hold that where there is a complaint case and a challan case in criminal trial, the complaint case shall be tried and decided separately from that of the challan case and, secondly, whether any prejudice had been caused to the respondent by joining the two trials.

4. We have heard Sardar Muhammad Latif Khan Khosa, learned counsel for the complainant‑appellant, Rana Abdul Rahim, learned counsel for respondents Nos. l and 2, Mr. Muhammad Munir Peracha, learned counsel for respondents Nos.3 and 4 and Ch. Muhammad Akram, learned counsel for the State.

5. The learned counsel for the parties have conceded at the bar that the learned Judge in Chambers of the High Court had erred to rely on the case of Nur Elahi (supra) for resolving the proposition raised in this case. According to them, the ratio in the cases of Zulfiqar Ali Bhutto v. The State (PLD 1979 SC 53) and Raja Khush Bakhtur Rehman and another v. The State (1985 SCMR 1314) escaped the attention of the learned Judge wherein Nur Elahi's case (supra) was considered and distinguished by this Court with the following observations:‑‑‑ "Learned counsel for the petitioners has also assailed the dismissal of the complaint, on the ground that there was no provision of law enabling the trial Judge to permit the withdrawal of a complaint in a murder case. In this connection he submitted that had the complaint not been dismissed, the complaint case could have been tried first in view of Nur Elahi v. The State (PLD 1966 SC 708). Nur Elahi's case, however, does not lay down any invariable rule that the complaint case is always to be tried first. Where the version and the accused are practically the same in both the complaint and the challan cases, even a separate trial may not be necessary. The point had come up for consideration in Zulfiqar Ali Bhutto v. The State PLD 1979 SC 53 (where it had been held):‑‑‑ 'Therefore, there was no necessity for a separate trial of the two cases when, technically speaking there were neither two sets of accused nor different versions nor any additional evidence to be examined by the complainant: It was only to avoid prejudice to the complainant that a particular procedure was devised in the reported case of Nur Elahi, but to say that invariably it should be followed even if the facts are distinguishable is not correct, as it does not amount to a declaration of law'. " In view of the law laid down by this Court in the cases of Zulfiqar Ali Bhutto and Raja Khush Bakhtur Rehman and another (supra), we are of the considered view that there was no need for separate trial as the accused and the allegations in the complaint as well as in the F.I.R. were the same.

6. As a sequel to what has been discussed above, we accept this appeal and set aside the impugned order of remand passed by the High Court In consequence, the case is remanded to the High Court for deciding it on merits. N.H.Q./K‑317/S Case remanded.