1998 PLP 1633 (MLD)

The learned counsel for the petitioners strenuously contended that report against the petitioners had been submitted under section 324/447/148/149, P.P.C. that none of the aforesaid offences was in the schedule to the Act of 1997 and so the Special Court, constituted under the latter Act, had no jurisdiction to try the petitioners. Add to it, reference was made to section 6 to contend that none of the offences attributed to the petitioners fell within the ambit of section 6 of the Act of 1997. It was contended with emphasis that two versions, one of the petitioners and the other of Muhammad Hussain, were cross cases; that these cases had to be tried separately with separate set of evidence and so under section 12 of Act of 1972 the case of petitioners could not be referred to the Special Court constituted under the Act of 1997. Reliance was placed on Allah Ditta v. Muhammad Nawaz and 5 others (1984 PCr.LJ. 2240 (Lahore) and Muhammad Naeem and another v. Muhammad Ismail and another (1997 PCr.LJ. 1446 (Peshawar). On the other hand, the learned counsel for the respondents/Muhammad Hussain party/represented that the petitioners were accused of offence under section 324, P.P.C. and the same fell within the ambit of item No.(iv) in schedule under section 2(e) of the Act of 1997. The learned Additional Advocate-General, who had entered appearance on Court call, submitted that it was the settled practice of criminal administration of justice that when two cross cases were tried these were tried by the same Judge side by side and the judgment was to be announced simultaneously so as to obviate the conflicting decision. On the strength of above rule, he canvassed that the Special Court constituted under the Act of 1997 was completely competent ;o try both cases/cross cases/cross versions and decide the same.

5. I have heard the learned counsel for the parties at considerable length. It goes without saying that it is centuries old practice that when two cross -versions/counter versions are put for trial ordinarily these cases are tried by the same Judge separately; evidence is recorded separately; these proceedings, however, proceed side by side and the learned trial Judge decides these cases simultaneously with an object to obviate conflicting judgments. Undoubtedly, this procedure is neither sanctioned nor forbidden by the Criminal Procedure Code and it has been evolved through practice ordained by superior judiciary. Reference be made to Nur Elahi v. State (PLD 1966 SC 708), Muhammad Sadiq v. State (PLD 1971 SC 713) and Islamic Republic of Pakistan v. Israrul Haq (PLD 1981 SC 531). Contrary view, not by majority, was given by his Lordship Mr. Justice B.Z. Kaikaus in Nur Elahi's case, (supra), in following words:-- "I would, therefore, direct in a case like the present that the two proceedings be consolidated and that there be a single hearing, that the whole of the evidence be produced before the Sessions Court and then a decision recorded. I may point out there that there were other difficulties also in the trial of the complaint case apart from the trial of State case. According to section 270, every trial before a Court of Sessions is to be conducted by a Public Prosecutor. What is to happen in the complaint case when the Public Prosecutor does not accept the story put forward by the prosecution. It may be said that the Public Prosecutor may hand over the prosecution in such a case to the private complainant. But we will again be trying to get over a legal provision. The Criminal Procedure Code does not refer to handing over by the Public Prosecutor of the prosecution to anybody else. At the same time section 270 gives an indication as to the mind of Legislature. The law intends that all prosecutions before the Sessions Judge should be by the Public Prosecutor so that it is not envisaged that two versions of the same incident should be put forward in two different proceedings. The proper course for the Public Prosecutor is to lay before the Court both the stories and produce all the evidence relating to both the stories and then leave the Court to find out the truth. The Public Prosecutor should not take upon himself the correctness of a particular story. In fact I see no bar to a joint committal of both sets of accused. The Criminal Procedure Code contains no prohibition as to joint committal. That would perhaps solve the whole problem. " Therefore, there is no difficulty in holding that it is well-entrenched mode of trial that cross-cases/cross-versions are to be recorded separately and the trial in such cases is to be conducted side by side by the same Judge; that the Judge has to decide such cases simultaneously.

6. This conclusion, however, does not end the matter. The question is whether Special Court has powers to try cross/version of Muhammad Hussain's party. It is true that the petitioners are charged in this version under sections 324, 447, 148 and 149, P.P.C./though section 302, P.P.C. has been added by the S.H.O. in his report under section 173, Cr.P.C. This addition is, however, of minimal significance. A look on entry No.4 in Schedule under section 2(e) of the Act of 1997 solves this problem. Relevant entries of the Schedule are Nos.2 and 4, are as follows:-- "

2. Any offence punishable under any of the following sections of the Pakistan Penal Code (Act XLV of 1860), namely: (a) Section 302-- (i) if committed with a cannon grenade, bomb, rocket or a light or heavy automatic weapon; (ii) if the victim is a member of public armed forces or civil armed forces or is a public servant; (iii) if there is more than one victim; (iv) the victim was subjected to cruelty, brutality torture, or burning; or (v) if committed for or in committing the offence of robbery or dacoity. (b) ............................................ (c) ......................... (2-A) ............................................ (3) ............................................

4. Any attempt or conspiracy to commit or any abetment of any of the aforesaid offences. A plain look, on the above items in the Schedule will clearly show that any attempt or conspiracy be made or any abetment of offence under section 302 is a scheduled offence. There is no dispute that section 324, P.P.C. is, in fact, substitute of old section 307 P.P.C. It covers the offences such attempted to commit murder. This being the position section 324, P.P.C. is a Scheduled offence under Act, 1997.

7. As a result of above discussion the points urged/canvassed by the learned counsel for the petitioners fade into insignificance and cannot be acceded to. I am, therefore, of considered view that this petition is wholly without any merit and is accordingly dismissed. The Special Court, constituted under Act, 1997, shall try both the cases and the cross-version in accordance with rule noted above and decide the matters simultaneously. H.B.T./M-652/L Petition dismissed.