Pakistan Case LawAsif alias Sabi Versus State
This criminal appeal challenged the conviction of the appellant for the murder of Khalil Ahmad, which was rendered by the trial court in a consolidated judgment disposing of both a private complaint and a State case. The core legal question was whether a trial court is permitted to decide a State case and a private complaint case arising from the same incident through a single, consolidated judgment. The Court held that such a procedure is legally flawed and contrary to established precedent. Relying on Supreme Court authorities, the Court affirmed that the correct procedure requires the trial court to first try the complaint case, while the State case remains dormant, to ensure all relevant evidence is properly thrashed out. Consequently, the Court set aside the conviction and sentence, and remanded the matter to the trial court with directions to re-write the judgment based on the existing record within two months. The appellant was ordered to be treated as an under-trial prisoner pending the new decision.
- Can a trial court dispose of a State case and a private complaint case through a single consolidated judgment?
- What is the correct procedural sequence for a trial court when handling both a private complaint and a State case arising from the same incident?
- Is a consolidated judgment in a State case and a private complaint case a curable irregularity under Section 537 of the Code of Criminal Procedure 1898?
- Section 302, Pakistan Penal Code 1860
- Section 109, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 544-A, Code of Criminal Procedure 1898
- Section 382-B, Code of Criminal Procedure 1898
- Section 537, Code of Criminal Procedure 1898
- Section 494, Code of Criminal Procedure 1898
- Section 540-A, Code of Criminal Procedure 1898
Abher Gul Khan, J .--- Asif alias Sabi (appellant) along with Rauf and Rasheed (co-accused) was tried by learned Additional Sessions Judge, Kasur in a private complaint filed under Sections 302, 109 and 34 P.P.C arising out of case FIR No.337/2015 dated 17.12.2015 registered under Sections 302 and 34 P.P.C at Police Station Raja Jang, District Kasur. The trial court vide judgment dated 17.02.2021 acquitted the aforementioned co-accused but convicted and sentenced the appellant as follows:-
Under Section 302(b) P.P.C to imprisonment for life as ta'zir for committing murder of Khalil Ahmad. He was also directed to pay compensation of Rs.300,000/- in terms of 544-A Cr.P.C. to the legal heirs of the deceased and in default whereof to further undergo 06 months S.I.
Benefit of Section 382-B Cr.P.C., however was extended to the appellant.
Challenging his conviction and sentence, Asif alias Sabi (appellant) filed instant appeal.
2.At the very outset, it has pointed out by learned counsel for the complainant that the learned trial court, while disposing of the complaint case as well as the State case, has committed illegality, which is not curable under section 537 of Cr.P.C. and while elaborating the illegality, learned counsel for the complainant has submitted that the learned trial court proceeded to dispose of both the cases, i.e., the State case and complaint case through consolidated judgment. Learned counsel for the complainant further submitted that in such eventuality, the matter may be remanded to the learned trial court for re-writing of the judgment.
3.Arguments heard. Record perused.
4.It is well settled that in the complaint and State case, fair procedure would be for the trial court to take up the complaint case first for trial. During the trial of the complaint case, witnesses mentioned in the challan case may be called as court witnesses for cross-examination by both parties. This procedure is meant to enable the court to have all the relevant evidence on record. If a trial in a complaint case resulted in a conviction, then it will be for the public prosecutor to consider whether or not to withdraw from the prosecution in a State case under Section 494 Cr.P.C. If the complaint case ends in acquittal, then the public prosecutor may have an opportunity to consider whether the State case has been damaged or not by what has been brought out in the trial of the complaint case to justify withdrawal of the prosecution, otherwise, trial in State case would be allowed to proceed to its normal conclusion and the parties would have the advantage of utilizing material placed on the record by way of cross-examination over the relevant witnesses following the law. From the perusal of the record, it transpires that the approach of the learned Addl. Sessions Judge is not fortified by the law for deciding such cases. Admittedly, the learned trial court has disposed of the State case and the complaint case through a single judgment. Such an approach contradicts the decision of the Supreme Court of Pakistan reported as Nur-Elahi v. The State and others (PLD 1966 SC 708) and can be safely referred. The relevant portion from Page No.712 is hereby reproduced:-
........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 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 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."
In another case reported as Niaz Ahmed v. Hasrat Mahmood and others (2016 PLD SC 70), the Supreme Court of Pakistan has held as under:-
".........The law is settled by now that if different versions of the same incident are advanced by the rival parties through cross-cases and such different versions contain different sets of accused persons then trial of such cross-cases is to be held simultaneously and side by side and a reference in this respect may be made to the cases of Muhammad Sadiq v. The State and another (PLD 1971 SC 713), Abdul Rehman Bajwa v. Sultan and 9 others (PLD 1981 SC 522), Rashid Ahmad v. Asghar Ali, etc. (PLD 1986 SC 37) and Mst. Rasool Bibi v. The State and another (2000 SCMR 641). The law is equally settled on the point that where the same party lodging the FIR also institutes a private complaint containing the same allegations against the same set of accused persons then the trial court is to hold a trial in the complaint case first and in the meanwhile the Challan case is to be kept dormant awaiting the fate of the trial in the complaint case and a reference in this respect may be made to the cases of Nur Elahi v. The State, etc. (PLD 1966 SC 708), Zulfiqar Ali Bhutto v. The State (PLD 1979 SC 53), Syed Muhammad Hussain Shah v. Abdul Hamid and 5 others (1981 SCMR 361), Mumtaz and others v. Mansoor Ahmed and another (1984 SCMR 221), Rashid Ahmad v. Asghar Ali and others (PLD 1986 SC 737) and Aziz-ur-Rehman v. The State (PLD 1987 Lahore 245)."
5.In light of the judgments cited above, it is deemed appropriate to remand the case to the learned trial court for the purpose of re-writing the judgment. Accordingly, the conviction and sentence of Asif @ Sabi (appellant) is hereby set aside. The matter is remanded to the learned trial court, which shall re-write the judgment based solely on the material already available on the record, within two months (excluding summer vacation) from the date of receipt of this order. During this period, appellant shall be treated as under-trial prisoner.
6.In the above terms, Criminal Appeal No.15905 of 2021 stands disposed of.
JK/A-17/L Case remanded
Judges on this bench
- Abher Gul Khan64 judgments