ATTA JILANI Versus STATE

The facts necessary in order to appreciate the points involved in the petition are briefly stated as under :-

2. One Sardar Khan lodged a report vide F.

1. R. No. 177 dated 29th August, 1973, in Police Station, Kharian, District Gujrat under sec tion 302/148/149, P.P.C. against Ata Jilani petitioner and 4 others on the allegation that they had inflicted injuries on the person of Lal Khan deceased and caused his death. On 25th October 1973, the Ilaqa Magistrate discharged the petitioner under section 173, Cr. P,C. with the result that in the aforesaid case only four persons remained as accused. The complainant Sardar Khan filed a separate private complaint against the petitioner under section 302, P.P.C. The Committing Court after the necessary compliance of section 302, P.P.C. summoned the petitioner vide his order dated 24th September, 1975, through non-bailable warrants. After the amendment of law the challan along with the private complaint was sent in the Court of Additional Sessions Judge, Gujrat for trial.

3. The question as to whether both the cases should be consolidated or there should be separate trial, was determined by Ch. Anwar Ali. Additional Sessions Judge, Gujrat vide his order dated 10th April, 1979.. The learned Additional Sessions Judge came to the conclusion that in the present case no separate trial should be held as there were neither two sets of accused nor different versions, nor any additional evidence was to be examined by the complainant and therefore, ordered that both the cases should be tried together. As the Public Prosecutor representing the prose cution in the challan case could not conduct the private complaint, therefore vide order 10 th April. 1979 the Additional Sessions Judge wrote to the District Magistrate, Gujrat for the appointment of a Special Public Prosecutor for conducting these two cases.

4. The petition was admitted to consider grounds (a) and (h) as given paragraph 7 of the petition which in nutshell laid down the proposition that once the petitioner had been discharged under section 173 of the Criminal Procedure Code, he could not be summoned as an accused in a private complaint unless the orders have been recalled in revision by a superior Court. Anyhow the precise submissions raised by the learned counsel for the petitioner are mentioned below :-

(1) That in view of the order of discharge passed by the Ilaqa Magis trate on 25th October 1973, under section 173, Cr. P.C., the petitioner could not be summoned as an accused in a complaint case, unless that order was set aside by a superior Court.

(2) Learned counsel contended that only remedy available to the opposite-party was to file a revision petition under section 436, Cr. P. C. in which there ought to have been a detailed further inquiry before the petitioner could be summoned as an accused.

(3) The third contention of the learned counsel is that a challan and private complaint cannot be tagged together for the purpose of trial because in that case both will lose their identity.

(4) The next submission of the learned counsel is that the learned Sessions Judge has erred in law in appointing a Public Prosecutor to conduct a complaint case.

4. In view of the submissions made above, the only question to be determined is whether both the cases should be consolidated or there should be separate trials in which case it shall have to be determined which case should be tried first. The learned counsel for the petitioner has relied on Nur Elahi v. The State etc. (P L D 1960 S C 708). In this case the learned Supreme Court examined the question as to what should be the procedure adopted by the learned trial Judge in disposing of the two cases. In this case there were two versions of the case ; one represented by the police challan and the other by the private complaint. It was under these circumstances that it was held that the proper course would be that the complaint case be tried first and the entire evidence recorded therein and in case the accused are convicted in the complaint case, the prosecution may withdraw the challan case. The relevant portion of the judgment of the Supreme Court is quoted below :-

After considering all aspects of the matter, we hold that a fair procedure would be for the learned trial Judge to take up the complaint case first for trial. During that case the learned trial .fudge may call the witnesses mentioned in the Police challan, if they were not already examined on behalf of the complainant, as Court witnesses under section 540-.4 of the Criminal Procedure Code, so that they can be cross-examined by both the parties. This will enable the Court to have the whole relevant evidence included in one trial and a decision could be arrived at after a proper consideration of the entire material relied on by the parties. The accused persons would in addition obviously have the right to adduce defence evidence if they so choose. If that trial results in a conviction, it will be for the Public Prosecutor to consider whether or nor he should withdraw from the prosecution, with the permission of the Court, under section 494 of the Code of Criminal Procedure, in the Police challan case."

1t would be appreciated that neither the facts of the case nor the law declared by the learned Supreme Court is applicable to the facts of the present case.

6. The learned counsel has also relied on State v. Masood Ahmad (1971 P Cr. L J 1216) In this case the accused were discharged under section 494-A of the Criminal Procedure Code. However, after a year a fresh challan on the. same facts and allegations was presented, on which the accused filed two separate revision petitions before the Sessions Judge. The learned Sessions Judge made references to quash the proceedings. In this case reliance was placed on Abdul Hossain Sana v. Suwalal Agarwala and others (P L D 1962 S C 242) where it was held that although the order was not passed on merits as permission was granted to the Public Prosecutor for withdrawal from the prosecution, but it would be an abuse of the process of the Court if in such a case fresh proceedings on the same facts are allowed to be initiated. It was further observed that the law aims at finality of the proceedings and once these proceedings came to an fiend; no fresh proceed ings could be allowed unless set aside in appeal or revision whatever the case may be. The law laid down in Abdul Hossain Sana v. Suwalal Agarwala supported the facts of the case.

7. However, in the present case the facts are different. Here in the trial of both the matters before the Sessions Judge the complaint case, is not a counter version of the challan case. The complaint as a matter of fact supplements the challan inasmuch as the main culprit had bee wrongfully discharged by the Magistrate under section 173, Cr. P: C. without applying his mind, there being no evidence justifying the discharge of the accused. The learned Sessions Judge has, therefore, rightly observed that the authorities relied on by the petitioner relate to a period before the enforcement of the Law Reforms Ordinance, 1972. Prior to the enforcement of Law Reforms Ordinance, the Court of Sessions would not take cognisance of a case for -its original jurisdiction unless commit ment proceedings were conducted by a Magistrate. But after enforcement of the Ordinance the Magistrate takes cognisance not for initiating an inquiry but for sending the case for Sessions trial. Embargo placed upon the Sessions Court before the Ordinance could not allow the Court to join any person as co-accused in a . case before it and the cognizance was restricted to be taken by the Committing Magistrate. The Sessions Court after the enforcement of Ordinance, 1972 now therefore, takes cognizance of the offence and can summon any person who might appear to be concerned with the commission of the offence. Reliance in this respect is placed on Muhammad Ishaq v. The State (1979 P Cr. L J Note 96 at p. 63). The above controversy stands almost resolved by the highest Court of this country reported as Zulfiqar Ali Bhutto v. The State (P L D 1979 S C 53) at page 75 Paragraphs 51 to 57. Here also a similar situation arose when there was a challan as well as private complaint. Reliance having been placed on Nur Elam v. The State (P l D 1966 S C 708), the Honourable Supreme Court observed that in the case reported as Machia and 2 others v. The State (P L D 1976 S C 695), there were two counter versions and the bar of proceeding simultaneously in such circumstances was approved. In cases of two counter versions the procedure laid down in the said authority had to be followed. However, taking into consideration the distinctive features of the case reported as Zulfikar Ali Bhutto v. The State held that where the accused cited in the complaint and the challan being the same, there was no harm in consolidating the both. In this connection it was observed gas follows :-

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. Having held so, we might also point out that the objection to the trial, if any, should have been taken before the trial Bench ; and not having done so, it is too late in the day to urge that it has caused prejudice to the appellant, when factually none is shown."

In view of the above discussion, the petition has no force and is hereby dismissed.

Petition dismissed: