STATE Versus MUSHTAQ

ORDER

1. These petitions are directed on a common ground and arise out of one incident, therefore, they are disposed of by single order.

2. Muhammad Iqbal, present petitioner is facing trial on the charge of murder. Alongwith Abdullah and others, in the District Criminal Court, Mirpur. The occurrence took place at Mangla Colony where both parties received injuries. One Shukar Muhammad belonging to the group of Mushtaq and others, was killed. Both parties reported at the Police Post, Mangla. The challan on the charge of murder under sections 302, 307, 148, 149, A. P. C. read with sections 5, 14 and 15, Islamic Penal Laws Act, was presented in the District Criminal Court, while counter challan, under sections 147, 148, 149, A. P. C. read with sections 14 and 15, Islamic Penal Laws Act, is submitted before Tehsil Criminal Court. Muhammad Iqbal also made a private complaint under sections 14 and 15, Islamic Penal Laws Act, in Tehsil Criminal Court.

3. Mr. Abdul Khaliq Ansari, learned counsel for Muhammad Iqbal, urged that counter case and private complaint arise out of one occurrence. It is in the interest of justice that the cases be tried by one Court and dis posed of simultaneously. He relied on 1970 P Cr. L J 448, 1968 P Cr. L J 300 and P L D 1968 Dacca 576 in support of his contention. Mr. Rafique Mahmood Khan, learned Additional Advocate-General, supported Mr. Ansari. Mr. Sher Zaman Chaudhary, learned counsel for the responded opposed the petitions. He argued that there was no absolute rule under Criminal Procedure Code that in situation like one under discussion, counter-cases necessarily be tried by one Court and disposed of simultaneously. He cited P L D 1971 S C 713 to fortify his argument,

4. There Is no absolute provision in the Code that counter-cases be tried by same Court and disposed of simultaneously. The Code of Criminal Procedure is silent on the proposition. It is by virtue of practice that it is insisted that counter-cases be tried by one Court and disposed of simultaneously. The object is to avoid conflicting findings. It is to provide safeguard and check against influence of findings of superior Court in one case over Court of inferior jurisdiction, holding trial in counter-case. Thus, by practice, it has become a rule that all charges and counter-charges arising from one incident be tried by the same Court and disposed of simultaneously.

5. In Muhammad Sadiq's case (PLD 1971 SC 713), it was held:-

6. "The Code of Criminal Procedure was silent with regard to the procedure to be adopted in trial of counter-cases arising out of the same occurrence. It was not Laid down anywhere in the Code as an absolute rule that all charges and counter charges must be tried by the same Court as held in A I R 1944 Bom. 1946. It was further held that it was a general practice to try the counter cases side by side by the same Court till their conclusion and to pronounce judgment in each case simultaneously. It cannot be said that this is an absolute rule to be adhered to strictly in every case. The special facts and circumstances of a particular case may warrant a different procedure for the ends of justice."

7. The facts of that case are obviously distinguishable. In that case the trial of murder case in Sessions Court was complete and it was at the stage of judgment, when one of the accused who had made private complaint before a Magistrate where trial was yet to be completed, moved for stay in pronouncement of judgment till disposal of the complaint. The prayer found favour in the High Court. But the learned Judges disagreed with the finding of the High Court and disallowed stay of proceedings. It was under those circumstances that the aforesaid view was expressed. In the instant case, there is no controversy relating to stay of proceedings or trial. On the contrary, it is urged that counter cases be tried by same Court and disposed of simultaneously. I find no fault in the demand. There is no probability or likelihood of remote prejudice to either party, rather it shall advance the cause of administration of justice.

8. By allowing petitions, no prejudice is likely to be caused to the respondents. The murder trial and counter-case are at initial stage. The evidence is yet to be recorded in the cases.

9. In view of the above observations, the petitions are accepted and it is directed that counter cases: `State v. Mushtaq and others' and private complaint Muhammad Iqbal v. Mushtaq and others', shall to transferred to the file of District Criminal Court. The District Criminal Court shall dispose of all the cases simultaneously.

10. Petition allowed.