AKHTAR HAYAT and another vs THE STATE and others

The necessary facts giving rise to the present revision petition are that respondent No,2 had lodged F.I.R. No,391 at Police Station Saddar, Sargodha on 13-12-1999 for, an offence under section 302/34, P.P.C. Wherein he had alleged that the present petitioners had murdered respondent No,2's wife namely ivI3t.Sharifan Bibi. During the investigation of that criminal case the present petitioners had been opined by the police to be innocent and instead the Investigating Agency had concluded that it was respondents Nos.2 to 4 who had committed the alleged murder. On 14-1- 2000 a challan was submitted in this case against respondents Nos.2 to 4 and the names of the present petitioners had been placed in Column No,2 of the said challan. However, on 2-7-2001 the learned Additional Sessions Judge, Sargodha seized of the present criminal case found sufficient in criminatory material to be available against the present petitioners so as to issue process against them for the purpose of holding their trial and, thus, the petitioners were also summoned by him to face a trial. The petitioners then submitted an application under section 265-K, Cr.P.C. Seeking their premature acquittal in this case but that application was dismissed by the learned Additional Sessions Judge, Sargodha vide order dated 24-9-2001. On 18-2-2002 the learned Additional Sessions Judge, Sargodha decided that separate charges could be framed by him in this case against the petitioners as well as respondents Nos.2 to 4 and then such separate charges could be tried by him through the same trial. On 5-3-2002 separate charges were in fact framed by the learned Additional Sessions Judge, Sargodha against the petitioners as well as respondents Nos.2 to 4. Later on an application was submitted by respondent No,2 before the learned trial Court .

Under section 540, Cr.P.C. Seeking summoning of certain witnesses to depose against the petitioners and that application was allowed by the learned Additional Sessions Judge, Sargodha vide order dated 19-3-2002 whereby some witnesses including respondent No,2 were summoned as witnesses in the criminal case in question. The petitioners have now approached this Court through the present revision petition challenging their summoning by the learned Trial Court to face a trial through the order dated 2-7-2001, framing of the charges against the petitioners as well as respondents Nos.2 to 4 through the order dated 18-2-2002 and summoning of respondent No, 2 as a witness in this case through the order dated 19-3-2002.

2. At the outset the learned counsel for the petitioners has stated that having received guidance from the judgment of this Court in the case of Bashir Ahmad and another v. The State and 2 others (2002 PCr.LJ 1208) he does not press this petition to the extent of summoning of the petitioners by the learned Trial Court to face a trial and he only presses this petition to the extent of the other two aspects of this case mentioned above. The learned counsel for respondents Nos.2 to 4 as well as the learned counsel for the State have very fairly maintained that the law on both the said aspects of the case is quite settled and, therefore, they are in no position to contest this petition in those regards and, thus, they have no objection if the relevant impugned orders are set aside by this Court and the matter is remanded to the learned trial Court for holding separate trials of the cases against the petitioners and respondents Nos.2 to 4. They have further maintained that according to the, law one accused person cannot be allowed to be summoned as a witness so as to depose against another set of accused poisons in the same case.

3. After hearing the learned counsel for the parties and going through the record it may straightaway be observed that the law had been settled about half a century ago in the case of Ali and others v. The Crown (PLD 1954 Lahore 183) that joint trial of two sets of the accused persons, one or the other set of whom is alleged to have committed the murder, is illegal.The law is equally settled that an accused person cannot be allowed to be summoned as a witness so as to depose against another set of accused persons in the same case. Reliance in this regard may be placed upon the cases of Abdul Rashid and another v. The State (1970 PCr.LJ 722) and Mureed Hussain v. The State and another (1993 M LD 2402).

4. In view of what has been observed above this revision petition is hereby dismissed as not pressed to the extent of the petitioners' prayer against their summoning by the learned Trial Court to face a trial but this revision petition is allowed to the extent that the impugned orders dated 5-3- 2002 and 19-3-2002 passed by the learned Additional Sessions Judge, Sargodha are hereby set aside and the matter is remanded to the learned Additional Sessions Judge, Sargodha for holding separate trials of the petitioners and respondents Nos.2 to 4 de novo in respect of the allegations levelled against them.