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(a) Electricity Act (V of 1910)--

S. 50-Assistant Technical Officer WAPDA-An "aggrieved" person within meaning of S. 50-Complaint under S. 379, P. P. C., held, competently lodged by such person and could validly be presented. Penal Code (XLV of 1860), S. 379.--[Complaint-Words and phrases].

Nasibur Rehman v. The State 1977 P Cr. L J 109 distinguished.

Nasim Ansari and another v. Crown P L D 1952 Lah. 369 rel.

(b) Criminal Procedure Code (V of 1898)--

S. 561-A-Quashment of proceedings--Question raised one of appreciation of evidence yet to be gone into by trial Court on recording of evidence---Prosecution, held, cannot be stiffled pre-maturely Quashment declined, in circumstances.-[Evidence].

Ch. Zahoor Elahi v. The State 1976 P Cr. L 1 988 and The State v. Rab Nawaz and another P L D 1974 S C 87 ref.

(c) Criminal Procedure Code (V of 1898)--

S. 561-A read with S. 249-A-Quashment of proceedings-Remedy available under S. 249-A, Cr. P. C. not availed-Petition for quashment of proceedings, held, ,premature and dismissed, in circumstance.

Khushi Muhammad and 4 others v. The State 1979 S C M R 94 and Ghulam Muhammad v. Muzammil Khan and 4 others P L D 1967 S C 317 rel.

Sh. Riaz-ul-Haque for Petitioner.

Shuja-ud-Din Qureshi for the State.

ORDER

On a complaint Manzurul Haq Sajid son of Ghulam Hussain, formerly residing in Awami Flats No. 0/13, Riwaz Garden, Lahore has been sent up by Police Station Mozang, Lahore on the charge of stealing electricity from the main line without authority and without a meter. The premises, on receipt of information, were raided by Sh. Tahir Farooq, Assistant Technical Officer (Complaint and Investigation) WAPDA, Lahore along with Mr. Muhammad Zaki Inspector (Complaint and Investigation), WAPDA, Muhammad Yusuf Line Supdt. and Asghar Ali Assistant Lineman, and finding the same to be correct they got a case registered.

2. The learned counsel relying upon Nasibur Rehman v. The State 1977 P Cr: L J 109 contends that the Technical Officer (Complaint and Investigation), WAPDA was not competent to initiate the complaint, and therefore, the entire proceedings would be a mock trial. In support of his prayer for quashment of proceedings, he further contends that there is no satisfactory evidence to prove that the petitioner was infact in possession of the premises, on the date in question.

3. Mr. S. D. Qureshi, learned counsel appearing on behalf of the State contends that the Technical Officer (Complaint and Investigation) WAPDA is an aggrieved person within the meaning section 50 of the Electricity Act, 1910, and in this regard he has drawn my attention to a case reported as Nasim Ansari and another v. Crown P L D 1952 Lah. 369 wherein Shabir Ahmad, J. relied upon the case : Bhagalpur Electric Supply Co. Ltd. v. Hari Pershad Shah and others A I R 1938 Pat. 15, and distinguishing the case : Dina Nath v. Emperor A I R 1935 Lah. 191, took the view that the Officer called the "S. D. O., P. W. D., Electricity Branch" was in charge of the property of Government and responsible for a proper working in the area in his charge of the electric undertaking run by Government, and therefore, the principal person. "aggrieved" by. theft of energy committed by the accused.

4. The case of Nasibur Rehman v. The State, decided by Aslam Riaz Hussain, J. of the Lahore High Court (as his Lordship then was), relied upon by the learned counsel for the petitioner is distinguishable on facts as well as in law. In this case, the report was lodged and the case registered at the instance of Saadat Ali, a Police Inspector, and the learned Judge was right in observing "and the same is, therefore, not competent in view of the provisions of section 50 of the Electricity Act". and the case relied upon by the learned counsel for the State, decided by Shabir Ahmad, J., being not applicable to the facts of the case before his Lordship Aslam Riaz Hussain, J., was neither brought to his Lordship's notice nor considered or,, taken note of. In this view of the matter, I am of the opinion that the principle laid down by Shabir Ahmad, J., in the case referred to above, is applicable to the facts and circumstances of the case, in hand and therefore, the complaint has competently been lodged and can validly be prosecuted.

5. As far as the contention of the learned counsel, on facts, is concerned, I am afraid this is a question of appreciation of evidence, which can be gone into by the trial Court on the recording of the evidence, therefore, I should not pre-maturely stile the prosecution. Learned counsel has relied upon the case : Ch. Zahoor Elahi v. The State 1976 P Cr. L J 988. Each case proceeds on/B its own facts and merit, particularly a criminal case, as pointed out by their Lordships of the Supreme Court in The State v. Rab Nawaz and another P L D 1974 S C 87.

6. The application for quashment is liable to dismissal on yet another ground, in view of the remedy now available under section 249-A of the Code of Criminal Procedure, and as observed by their Lordships of the Supreme Court in case : Khushi Muhammad and 4 others v. The State 1979 S C M R 94, and the principle laid by their Lordships in Ghulam Muhammad v. Muzammil Khan and 4 others PLD1967SC 317.

7. The learned counsel for the petitioner has further contended that it is extremely difficult and a great hardship for the petitioner to defend himself in Lahore, where he is being prosecuted, as he has been transferred to Rawalpindi, and his coming to Lahore, involves, besides hardship, considerable expenses. The petitioner, if so advised, can apply to the trial Court for the exemption of his personal attendance.

8. In this view of the matter, I find no substance at this stage, for the quashment of the proceedings. The petitioner, if so advised, at the appropriate stage, can apply before the learned trial Court unde section 249‑A, Cr. P. C. as it now stands, and this order should not prejudi the learned trial Court, while determining the merits of the case, in the lights of the evidence on the record. With this observation, this petition i dismissed.

S. A. H, Petition dismissed.

P L D 1979 Lahore 684

Before Ghulam Mujaddid Mirza, J HAMID AHMAD‑Petitioner

Versus

THE STATE AND 15 Others‑Respondents

Criminal Revision No. 13 of 1979, decided on 9th April 1979.

Criminal Procedure Code (V of 1898)‑

Ss. 233, 239 & 173 ‑Joint trial‑Police submitting two separate reports under S. 173, adding a number of accused and witnesses in second report‑Contention that challan being submitted on separate reports, accused be tried separately, held, had no force‑Mere fact of increasing number of accused and witnesses by second investigation, not entitles accused separate trial nor causes embarrassment to Public Prosecutor to conduct trial‑Joint trial ordered in circumstances of case.‑[Joint trial‑‑Investigation'. The mere fact that number ' of the accused has been increased and some more witnesses had been added on the prosecution side would neither entitle the petitioner to separate trial nor it will cause any embarrassment to the Public Prosecutor to conduct the trial.

Nur Elahi v. The State P L D 1966 S C 708 ; Noor Ahmad v. The State P L D 1964 S C 120 ; Alli and others v. The Crown P L D 1954 Lab. 183 ; Samiullah Sahib v. King‑Emperor A I R 1927 Mad. 177 ; Faqir Muhammad v. Crown P L D 1949 Bal. 20 ; Mian Abdul Majid v. The Chief Administrator of Auqaf P L D 1972 Lab. 66 and Nawab v. The State P L D 1966 Lab. 300 ref.

Kh. Sarfaraz Ahmad for Petitioner. '

Kh. Muhammad Asghar for A: G. for the State.

Ch. Muhammad Abdul Salim for Respondent No. 2.

Raja Muhammad Anwar for Respondents Nos. 2 to 9.

Sh. Muzaffar Ahmad Zafar for Respondents Nos. 10 to 16.

Dates of hearing : 21st, 22nd and 27th January 1979.

JUDGEMENT

The facts leading to this petition are that Hamid Ahmad petitioner lodged First Information Report No. 81 of 1975, on 8th April 1975, at Police Station Thikriwala, with regard to an occurrence alleged to have taken place at 3‑30 P.M. within the premises of Canal Bungalow Aminpur, which is situated at a distance of one furlong from the police station in which Nazir Ahmad was stabbed to death.

In the first information report, respondents 2 to 9 were named. The investigation in this case was conducted first by the local police and thereafter twice by the Crimes Branch. Both agencies submitted two separate reports under section 173, Cr. P. C. In the report submitted by the Crimes Branch, in addition to the accused initially named in the first information report, seven more persons (respondents 10 to 16) were also added.

On completion of chal(ans, before the commencement of trial, the petitioner filed an application in the Court of Additional Sessions Judge, Faisalabad, praying for separate trial of respondents 10 to 16, who had been added later on. The learned Additional Sessions Judge after hearing the parties turned down the request of the petitioner by his order dated 20th September 1978. Thereafter the petitioner filed this petition under section 439, Cr. P. C.

2: As already observed initially the investigation in this case was conducted by the local police, who submitted an incomplete challan against respondents 2 to 9. Respondent No. 2 being dissatisfied with the investigation gave an application to the Crimes Branch for re‑investigation. The case was then entrusted to the Crimes Branch. It is alleged by the petitioner that the Crimes Branch confirmed the investigation conducted by the local police, but still respondent No. 2 was not satisfied. He gave another application and this time the investigation was conducted by the Superintendent of Police, Crimes Branch. He submitted a second report under section 173, Cr. P. C. as a result of which respondents 10 to 16 were also named as accused persons.

3. Learned counsel appearing in support of this petition submitted that the result of the two reports was that it gave rise to two different stories, which have to be proved by two different sets of witnesses. Learned counsel argued that in a situation like this the principle of law applicable would be separate trial and that would also be in the interest of justice.

Before proceeding further, I may observe that the counsel appearing on behalf of the State did not support the cause of the petitioner.

4. Learned counsel drew _1 my attention to Chapter XIX of the Code of Criminal Procedure with special reference to sections 233 to 239. Emphasis was laid on sections 233 and 239. Section 233 is to the following effect :‑

"233. Separate charges for distinct offences.‑For every distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately, except in the cases mentioned in sections 234, 235, 236 and 239."

It was on this particular provision on which learned counsel relied and submitted that a joint trial is an exception and separate trial is the rule.

5. Before discussing the contentions of the learned counsel for the partias, I would like to observe that I do not intend to discuss the facts and would not even refer to the contents of the two reports under section 173, Cr. P. C., because I am of the view that any observation made at this stage is likely to be misconstrued by the trial Court and may even prejudice the case of either side.

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