GHULAM ABBAS Versus State

ARSHAD MAHMOOD TABASSUM, J.--- This petition under sections 435/439, read with section 561-A, Cr.P.C., calls in question order dated 3-9-2013, passed by the learned Sessions Judge, D.G. Khan, whereby, he dismissed application of the petitioner/accused in a private complaint to summon Karam Hussain, as a C.W.

2. Briefly stated, the facts of the case are that respondent No.2 namely, Ghulam Akbar, got registered a criminal case vide F.I.R. No.173, dated 18-3-2010, under section 302/34, P.P.C., at Police Station Saddar D.G. Khan, against some unknown persons for committing murder of his son, namely, Roshan deceased, aged about 15 years stating therein that on 17-3-2010, at about 6-00 p.m., he, along with Muhammad Khan and Karam Hussain P.Ws., while searching his above named son heard a sound of fire in the Jungle; that he along with the said P.Ws. rushed towards the spot and found the dead body of his son smeared in blood and that two unknown persons were found running away from the spot.

3. During investigation of the case, the petitioner implicated Ghulam Abbas and Aman Ullah son of Karam Hussain for committing the murder of his son. It appears that Aman Ullah could not be arrested, whereas, Ghulam Abaas accused was challaned to the Court.

4. The complainant, being dissatisfied with the police investigation, instituted a private complaint, alleging therein that both the accused named above had committed sodomy upon his son and then murdered him and that police did not record his version correctly.

5. The State case as well as the private complaint both are pending adjudication before the learned trial Court. Keeping in view the principle laid down in the famous Nur Elahi's case reported as "PLD 1966 SC 708", the learned trial Court is proceeding with the private complaint keeping the State case pending.

6. During the trial, Ghulam Abbas petitioner in the private complaint submitted an application for summoning Karam Hussain as a C.W. on the ground that the said Karam Hussain was cited as a P.W. in the connected State case, hence, keeping in view the principle laid down in Nur Elahi's case referred to above, he was liable to be examined as a C.W. The said application was, however, dismissed by the learned trial Court vide impugned order with the following observations:--

"The other application for summoning Karam Hussain as C.W. is not justified because said Karam Hussain father of Aman Ullah accused is not cited witness in the private complaint in which trial is being conducted and complainant in his statement as P.W.1 did not own the contents of his complaint with the police while lodging the case F.I.R. No. 173/10. The petitioner/accused Ghulam Abbas may produce him as defence witness if so advised. With such observation, both the said petitions are disposed of."

7. Being dissatisfied with the impugned order, the petitioner has assailed the same through filing the instant criminal revision petition.

8. Learned counsel for the petitioner has argued that the learned trial Court has failed to comprehend the dictum laid down in Nur Elahi's case in its true perspective; that it has clearly been laid down in the said precedent that all the P.Ws. in the State case, who were not examined on behalf of the complainant as P.Ws. in the private complaint should be examined as C.Ws. so that the trial Court could have whole evidence included in trial and a decision could be arrived at after a proper consideration of the entire material relied upon by the parties; that the learned trial Court has erroneously held that the petitioner could produce the said Karam Hussain as a D.W. if so advised, whereas, the said witness was liable to be examined as a C.W., hence, the impugned order is liable to be set aside.

9. Conversely, learned counsel for the respondent No.2 and the learned APG fully supported the impugned order by submitting that in the precedent referred to above, it has been observed by the august Supreme Court of Pakistan that the trial Judge may call the witnesses mentioned in the police challan if they were not already examined on behalf of the complainant as Court witnesses and that the use of word "may" suggests that it is not mandatory for the trial Court to summon such witnesses as C.Ws., hence, the impugned order is perfectly all right.

10. Heard.

11. For the sake of convenience, the relevant portion of the judgment of Nur Elahi's case reported as "PLD 1966 SC 708" is reproduced 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 Judge 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-A of the Criminal Procedure of 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."

12. Keeping in view the dictum laid down by the august Supreme Court of Pakistan, it appears that all the P.Ws. cited in the police case and not examined as P.Ws. on behalf of the complainant have to be examined by the trial Court while conducting trial in a private complaint. The wisdom and the logic in so doing has also been explained by the apex Court in the following words:--

"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 not 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. It would be easy for him to take such a decision after the whole evidence has been thrashed out in the first trial. If the first case ends in an acquittal, he might still have to consider whether the police version has not been so seriously damaged by what has been brought out in the first trial, as to justify withdrawal of the prosecution. Otherwise the second trial would be allowed to proceed to its normal conclusion and the parties would have the advantage of utilizing the material placed on the record of the earlier trial, by way of cross-examination of the relevant witnesses as permitted by law."

13. The name of Karam Hussain sought to be examined as a C.W. by the petitioner finds a mention in the calander of witnesses of the state case, hence, he is liable to be summoned and examined as a C.W. in the private complaint. No such circumstances existed to hold that the instant case was an exception to the general rule laid down in the Nur Elahi's case (supra).

14. The learned trial Court, it appears, was misled by the fact that Karam Hussain being father of one of the accused persons was not to be summoned as a C.W. and that petitioner might produce him as a D.W. This to my mind, is against the principle laid down in the precedent referred to above. The impugned order, therefore, is a departure from the settled law which cannot sustain.

15. It may also be observed here that to examine a P.W. cited in the state case as a C.W. in the private complaint does not require submission of an application by any party rather it is for the court itself to summon such a witness and examine him to do complete justice between the parties.

16. In the light of the above discussion, the impugned order merits setting aside which is accordingly set aside. Resultantly, the application submitted by the petitioner for summoning of Karam Hussain as a C.W. succeeds and the same is allowed. The learned trial Court shall summon Karam Hussain as a C.W. and record his statement, affording a fair opportunity to both the parties to cross-examine him.

17. The instant petition is allowed in the above terms.

MH/G-9/L Petition allowed.