1999 P Cr (PLP)

By this application applicants Shaukat Ali and Abdul Ghana seek transfer of Sessions Case No.232 of 1990 re: Abdul Hakeem v. S.H.O. Shaukat Ali Abbasi and others from the file of learned IInd Additional Sessions Judge. Jacobabad to any other Court of competent jurisdiction. The facts leading to filing of this application are that applicant Shaukat Ali had lodged Crime No.40 of 1987 on 25‑7‑1987 at Police Station Daulatpur under sections 307, 353, 148, 149, P.P.C. and 13(d), Arms Ordinance whereby he alongwith law enforcing agencies (Army) had gone to arrest the proclaimed offenders namely Jagan, Gul Hassan, Rajoo from Village Jagir Ghousabad. An encounter took place in between the villagers and law enforcing agencies resulting in that four persons froth the side of villagers lost lives. The above offence was challaned in which the respondents Abdul Hakeem and others were facing trial before the abovementioned Court. Respondent No. l after moving the applications to the various authorities filed a direct complaint against applicants and A.S.‑I. Akhtiar under sections 302, 149, 342, 148 and 220, P.P.C. before the Court of Civil Judge and F.C.M. Garhi Khairo from where the same was forwarded to the Court of learned Sessions Judge, Jacobabad who transferred the same to the abovementioned Court for trial. It is contended by Mr. Abdul Fattah Malik that in both the cases evidence was concluded but the learned Judge dzcided State case lodged against respondent Abdul Hakeem and others first and acquitted them whereakept pending the case based on the direct complaint filed by applicant Abdul Hakeem. He further contended that learned Judge has not followed the law while disposing off the State case whereas according to the law laid down by superior Courts the private complaint is to be disposed off first: He lastly contended that by such act the case of applicant has been highly prejudiced and have lost confidence in the learned Judge and it would be in the interest of justice to transfer the said case. In support of his contention he has relied upon PLD 1966 SC 708, PLJ 1980 SC 168, 1997 MLD 286 and an unreported citation in Criminal Appeal No.32/K of 1996 of Federal Shariat Court. Messrs Qutubuddin Thahim and Ali Asghar Tunio the learned counsel for respondent No.1 and A.A.‑G. frankly conceded with the above contentions of applicants counsel and admitted that as per law direct complaint will have to be disposed of first. As such they have no objection if the case is recalled from the file of above Court and transferred to any other competent Court having jurisdiction. I have gone through the record of application as well as parawise comments filed by learned IInd Additional Sessions Judge, Jacobabad. There is no exception to the legal position that it is the private complaint which will have to proceed Ist and decided than that of the State case when both arise out of same incident. Honourable Supreme Court in the case of Nur Elahi v. The State and others by majority view has categorically laid down the principle that case based on complaint be taken up first and prosecution witnesses listed in Police challan be also examined as Court witness under section 540‑A, Cr.P.C. and has further held that Police challan would only be taken up if complaint case is resulted in acquittal and in case of conviction police case be withdrawn by public prosecutor under section 494, Cr.P.C. In the case of Syed Muhammad Hussain Shah v. Abdul Hameed and 5 others it has been held that case of private complaint be taken first for trial. This Court in the case of Ghulam Muhammad and 2 others v. The State has also taken the same view and has observed that it is a settled law that where there is a F.I.R. as well as counter‑version through a private complaint it would be the complaint which would proceed first. Honourable Federal Shariat Court on the same principle of law in the abovementioned unreported citation had accepted the appeal and set aside the judgment and conviction and remanded the case for fresh trial alongwith other connected case. The explanation furnished in the comments by learned Judge is not convincing. He was supposed to follow the law and not the directions if any. For the foregoing discussion and with the consent of counsel for the parties the above referred direct complaint is recalled from the Court of learned IInd Additional Sessions Judge, Jecobabad and is transferred to the file of learned Sessions Judge, Jacobabad for disposal in accordance with law. N.H.Q./S‑190/K Case transferred