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Criminal Appeal No. 176 of 1983, decided on 11th April, 1984.

(On appeal against the Judgment and Order of the Lahore High Court, Multan Bench, dated 26‑6‑1981 in Criminal Miscellaneous No. 76/Q/82).

‑‑ Art. 185(3)‑Criminal Procedure Code (V of 1898), S. 561‑A‑Leave to appeal granted to consider (i) that a private complaint filed by convict was merely a device to delay disposal of appeal before High Court already adjourned to await result of trial of case and (ii) trial in said complaint would take considerably long time and was subterfuge to delay trial of appellants.

‑‑ S. 561‑A‑Quashing of proceedings‑Police not having challanged accused for murder, private complaint only course open against accused Points raised for quashing of proceedings could be considered by trial Court at proper stage‑Hearing of original appeal and murder reference already stayed by High Court‑Appeal found without sub stance and dismissed.

Ch. Khalilur Rahman, Senior Advocate Supreme Court and Sh. Salahuddin Advocate‑on‑Record for Appellants.

Karam Elahi Bhatti, Advocate‑on‑Record for the State.

Date of hearing : 11th April, 1984.

‑The appellants, feeling aggrieved by the dismissal of their application under section 561‑A, Cr. P. C. for the quashment of criminal proceedings against them vide judgment dated 26‑6‑1983 of the Lahore High Court, filed Criminal Petition for leave to appeal in this Court and leave was granted, per order dated 31‑10‑1983, to consider that a private complaint filed by Mukhtar Ahmad convict was merely a device to delay the disposal of the appeal before the High Court which had already been adjourned by the learned High Court to await the result of the trial of the case based on a private complaint filed by Muhktar Ahmad accused ; that the trial in the said complaint case would take considerably long time and was a subterfuge to delay the trial of the appellants.

2. The facts giving rise to this appeal are that two reports were lodged about an incident which took place between two parties on 16‑9‑1982 in village Bagh Dhattianwala, Chak No. 321/E. B., District Multan in which two persons, one from each side, were killed. F. 1. R. No. 43 of 1976 was lodged by Muhammad Iqbal appellant for the murder of his brother Muhammad Saleem while F. 1. R. No. 44 of 1976 was lodged by Bagh Ali relating to the murder of Muhammad Siddiq, a member of the opposite‑party.

3. During the investigation the police found the allegation made in F. I. R. No. 44 of 1976 to be false and the case against the accused mentioned in that F. I. R. was, therefore, got cancelled. A challan was submitted in the case arising out of F. I. R. No. 43 of 1976 and the accused named therein were sent up for trial before the Session Judge, Vehari who vide judgment dated 27‑1‑1979, found them guilty, inter alia, of an offence under section 302/34, P. P. C., and convicted Nazir Ahmad for the murder of Muhammad Salim deceased and sentenced him to death ; and also convicted Muhammad Iqbal, Mukhtar, Gulzar and Yaqub for the murder of their own party‑man namely Muhammad Siddiq Bhatti under section 302/34, P. P. C. and sentenced each of them to imprisonment for life. All the four convicts filed an appeal against their conviction and sentence before Lahore High Court which is still pending.

4. On 7‑4‑1981 one of the convicts namely Mukhtar Ahmad accused filed a private complaint alleging that Muhammad Siddiq Bhatti had, in fact, been murdered by Muhammad Iqba1, complainant in F. I. R., No. 43 of 1983. The case was sent up for trial to Additional Sessions Judge, Gujrat who sum moned the accused mentioned in this private complaint i. e. the appellants before us. The appellants filed an application for the quashment of the aforesaid proceedings in the High Court but the learned Lahore High Court, however, dismissed the quashment application vide the impugned judgment dated 26‑6‑1983.

5. Learned counsel for the appellants submitted that after one set of accused was convicted and sentenced to various punishments and another appeal is pending in the High Court, another set of accused consisting of the appellants could not be tried for the same offence because it would amount to review of the judgment already announced by the Court in the case of appellants whose appeal is pending before the High Court. It was further contended that unless verdict in appeal and Murder Reference, pending in the High Court is announced, trial of another set of accused on a private complaint has to be stayed that the version of the complainant had already been dis believed as no challan against the appellants was submitted by the police.

6. We have examined the contentions raised by the learned counsel and find that there is no bar to the trial of the accused appellants for the murder of Muhammad Siddiq Bhatti because the police had not challaned the accused for that murder and a private complaint was the only course open against the accused appellants. Moreover, all points raised before us for the quashment of proceedings could be considered by the trial Court at the proper stage. The hearing of criminal appeal and murder reference has already been stayed by the High Court. We, therefore, find no substance in this appeal and the same is accordingly dismissed.

S. Q. Appeal dismissed.

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