1988 P Cr (PLP)

1970 P Cr. L J 133; P L D 1966 SC 708 and 1981 S C M R 36 ref . Ghulam Haider Memon for Applicant Nemo for the State. Date of hearing: 6th October, 1987. This criminal revision application under section 439, read with section 561‑A, Cr.P.C., has been filed against the two orders, dated 28th October, 1986, and 18th May, 1987, of learned III Additional Sessions Judge, Nawabshah. Facts are that one Mahiwal lodged report at Police Station Naushero Feroze against Abdul Qadir, Ghulam Sarwar, Amanullah, Asadullah and Ali Murad. Police during investigation let of applicant, Ali Murad. His name has been shown in Column No. 2 of the challan while other accused were sent up for trial. Complainant, Mahiwal filed direct complaint and after holding preliminary enquiry, the learned III Additional Sessions Judge brought the case on file and issued bailable warrants against the applicant on 28‑10‑1986. Police case and direct complaint were amalgamated by the learned Judge by order, dated 18‑5‑1987, on the grounds that the incident is the same. I have heard Mr. Ghulam Hyder A . Memon, at length. It is argued by the learned counsel that during the preliminary enquiry in direct complaint, the Investigating Officer was not examined, and process was issued. He submitted that before the issuance of process, the Investigating Officer should have been examined and order is not a speaking order. He has referred to the cases reported in P L D 1986 Lah.

256. It is also argued that joint trial is illegal and referred to the cases reported in 1970 P Cr. L J 133 Mr. Memon submitted that the procedure for the trial of complaint case and police case is given in P L D 1966 SC 708; and 1981 S C M R

36. It is also argued that direct complaint is to be conducted by a private Advocate while police case is to be conducted by a Government Advocate. Therefore, the case of applicant will be prejudiced if cases are to proceed together. With regard to the process, it may be observed that name of applicant and part of instigation appears in the First Information Report lodged by Mahiwal. The contention of Mr. Memon is that police did not challan the applicant as his defence on the point of alibi was taken. Evidence against the applicant, Ali Murad and other accused is also same. I have gone through the challan and the direct complaint and find that same set of witnesses are given in the direct complaint as well as in the police Challan. No additional witness has been cited in the complaint. Therefore, no additional evidence is to be examined or taken in both the cases. The witnesses in the preliminary enquiry except Investigating Officer, as stated by the learned counsel have fully supported the case as given in the F.I.R. In my view, the learned Additional Sessions Judge has rightly issued the process in the light of the statement of the complainant and the eye‑witnesses. In these circumstances, complainant has no alternate but to file direct complaint. The stage was of an enquiry in which it was not necessary for the complainant to examine all the witnesses. Only prima facie case is to be made out, and it is to be seen from the evidence of the witnesses of prima facie case was made out the process was rightly issued. Not only this, but the Court has the power even to summon a person who is shown in column No. 2 of the challan. Moreover, at the trial, the accused has got full opportunity to cross‑examine the Investigating Officer who is also shown witness in the challan as well as in the direct complaint. His case, therefore, not prejudiced in any way. The order, dated 28‑10‑1986, is proper one. It may also be pointed out that this order was passed on 28th July, 1986, and revision application has been filed after one year and two months and the laches have not been explained. This revision has been filed when the cases were amalgamated. Now I come to the other legal aspect of the case. Firstly, I would like to refer to the case of Syed Mohammad Hussain Shah v. Abdul Hameed and 5 others, reported in 1981 S C M R

361. The facts were that there were two sets of allegations made in two cases as to weapons used as well as role ascribed to various accused. The complaint was instituted and different names of accused were given and one of the accused as mentioned in the F.I.R. was dropped and other accused was substituted in his place. Therefore, it was held that complaint case to be taken up first for trial and the police case thereafter and a joint trial as held not permissible in the circumstances. In case of Noor Elahi v. The State and other reported in P L D 1966 SC 708, where the procedure for complaint case and police case has been discussed by their Lordships at page 711‑A, held as under:‑

"From this order special leave to appeal was granted by this Court to consider the question whether the appeal procedure laid down for the trials, by the learned Judge, had the sanction of law.″ There is authority for the view taken by the learned Single Judge that a joint trial of the two sets of accused, in circumstances like the present, would be in contravention of provisions of section 239 of the Code of Criminal Procedure. Reference may be made, in this connection to Ali and others v. The Crown (1) and Noor Ahmed v. The State and Rahim Bakhsh v. The State (2) The correctness of this view also seems to have been assumed by a Division Bench of the Lahore High Court in Ali Mohd. v. Amir Ali and others (Criminal Miscellaneous No. 998 of 1945 decided by the High Court on 8th/9th November, 1945). A copy of the judgment in that case has been supplied to us by the learned Advocate‑General for the Province. The two sets of accused cannot be said to be persons accused of the same offence, committed in the course of the same transaction within the meaning of clause (a) of section 239 of the Code of Criminal Procedure. Either the one set or the other may have been really guilty or the offence in question and they could not be said to have participated in these transaction together." As stated above, in this case the situation is a different one. In F.I.R. the name of the applicant appeared and his name is also shown in Column No. 2 of the challan and the witnesses in both the cases are common. The evidence against the applicant is same. There is no exaggeration in the complaint nor different story advanced. All the prosecution witnesses as shown in the challan will be examined by the prosecution and as well as the same set of witnesses are in the direct complaint. Therefore, the case of applicant will not be prejudiced. The accused has a full opportunity to cross‑examine all the witnesses on the basis of police statement, 164, Cr.P.C. statement‑, if recorded during investigation and statements recorded in the preliminary enquiry. The other grievance of Mr. Memon is that in case the trial is conducted by the Public Prosecutor, the applicant/ accused will be prejudiced. This grievance should come from the complainant and not from the accused. There is no such application from the complainant's side that his counsel be allowed to proceed with the trial in direct complaint. Upshot of the above discussion is that both the orders of the learned III Additional Sessions Judge are proper and applicant /accused is in no way prejudiced and no illegality has been committed in both the orders. Therefore, this revision is dismissed in limine. S. G. D. /A‑202/ K Order accordingly.