1998 PLP 652 (SCMR)

R.A. Awan, Advocate Supreme Court and Muhammad Aslam Ch., Advocate‑on‑Record for Petitioner. Kh. Muhammad Sharif, Advocate‑General, Punjab for the State. Date of hearing: 2nd January, 1998. SH. IJAZ NISAR, J. ‑‑‑Leave is sought against the judgment and order, dated 3‑4‑1997 and 6‑5‑1997, passed by the Lahore High Court, Lahore, dismissing Criminal Revision No.297 of 1996 and Criminal Miscellaneous No.683‑M of 1997 filed by Muhammad Dildar Malik, petitioner herein.

2. The relevant facts are that F.I.R. No.101 of 1993, dated 7‑6‑1993, under section 302, P.P.C. was lodged at Police Station Gujjarpura, Lahore, by Tahir Mahmood respondent/complainant for the murder of his brother Nasir Mahmood, against Muhammad Dildar Malik petitioner citing Hafiz Imtiaz Ahmad and Tariq Aziz alias Tara as prosecution witnesses. The police during investigation found Dildar Malik to be innocent and instead challaned Hafiz Imtiaz Ahmad and Tariq Aziz. Feeling dissatisfied with the findings of the police Tahir Mahmood respondent filed a private complaint against Muhammad Daildar Malik petitioner reiterating the version given by him in the F. I. R. citing Hafiz Imtiaz Ahmad and Tariq Aziz as his witnesses. Following the rule laid down by this Court in Nur Elahi v. The State and others (PLD 1966 SC 708) the learned trial Court commenced proceedings in the complaint case first. When on the request of Tahir Mahmood respondent/complainant the Court proceeded to examine Hafiz Imtiaz Ahmad and Tariq Aziz as witnesses an objection was raised by the learned counsel for the petitioner that since they were accused in the challan case they could not be administered oath and examined as witnesses unless pardoned, discharged or acquitted. The objection was overruled by the learned trial Court vide order dated 15‑7‑1996.

3. Challenging the said order. Dildar Malik respondent filed a revision petition in the High Court, which was dismissed on 3‑4‑1997. Thereafter, he filed Criminal Miscellaneous No.683‑M of 1997, which too was dismissed. Hence this petition.

4. Learned counsel for the petitioner sticks to his stand that since Hafiz Imtiaz Ahmad and Tariq Aziz alias Tara have been challaned as accused in the police case, they cannot be examined as witnesses in the complaint case pertaining to the same occurrence. for, no oath can be administered to them unless pardoned or acquitted. Learned Advocate‑General Punjab has relied on Nur Elahi's case (supra) which, according to him, lays down the procedure for the trial of case m the private complaint and the challan submitted by police. According to him the complaint was taken up first in accordance with the said procedure.

5. It is laid down in Nur Elahi's case for the application of the dictum therein that there should be two different sets of accused with different versions and different evidence. In the present case too, different versions with different sets of accused and witnesses have been put up. Hafiz Imtiaz Ahmad and Tariq Aziz have not been shown as accused in the complaint but as witnesses, therefore, no objection can be taken to their examination as witnesses after administration of oath to them in the complaint case. In this view of the matter, rule laid down in Noor Elahi's case is fully attracted and the orders passed by the learned Trial Court and the learned Single Judge in the High Court are unexceptionable and do not warrant any interference. Accordingly, this petition is dismissed and leave declined. N.H.Q./M‑71/S Leave refused.