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Criminal Petition for Special Leave to Appeal No. 215 of 1986, decided on 26th July, 1986.

(From the judgment/order of the Lahore High Court, Multan Bench, dated 19‑5‑1986 passed in Criminal Revision No. 195 of 1985).

(a) Criminal Procedure Code (V of 1898)-‑

‑‑ Ss. 233 & 239‑Penal Code (XLV of 1860), S. 302‑Murder --Separate trial on private complaint and police challan relating to same murder‑Two totally different sets of accused‑View taken by Supreme Court in Nur Elahi v. The State P L D 1966 S C 708 not modified by decisions in Zulfiqar Ali Bhutto v. The State P L D 1979 S C S3 and Raja Khushbakhtur Rehman v. The State 1985 S C M R 1314 by Supreme Court.

The view taken in case of Nur Elahi has not been modified by decision to Zulfiqar Ali Bhutto v. The State P L D 1979 S C 53 and Raja Khusbakhtur Rehman v The State 1985 S C M R 1314.

The principles laid down in Nur Elahi's case would still be applicable if the facts and circumstances of case were not distinguishable on material points.

Raja Khushbakhtur Rehman and another v. The State 1985 S C M R 1314 distinguished.

Mst. Aziz Begum v. Muhammad Khushdil and another P L D 1981 Kar. 141 ref.

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

‑‑ Ss. 233 & 239‑Penal Code (XLV of 1860), S. 302‑Murder ‑Two versions: one in the complaint and the outer in State case being different and sets of accused also not being someone in two cases Principle laid down in Nur Ilahi v. The State ff‑ 1966 S C 708 would be attracted.

Raja Khushbakhtur Rehman and another The State 1985 S C M R 1314 and Mst. Aziz Begum V. Muhammad Khushdil and another P L D 1981 Kar. 141 distinguished.

Dr. M. Khalid Ranjah, Advocate Supreme Court and Mahmood A Qureshi, Advocate‑on‑Record for Petitioner.

Nemo. for Respondents.

Date of hearing: 26th July, 1986.

MUHAMMAD AFZAL ZULLAH, . J

.‑Leave to appeal has been sought from judgment dated 19‑5‑1986 of the Lahore High Court; whereby a learned Single Judge relying on Nur Elahi v. Ch. Ikram-ul-Haq etc. (P L D 1966 S C 708), set aside an order passed by the learned trial Court in a case of murder and directed the trial of the complaint made in the same case first and there after to start the trial of the challan case if need be as visualised in the case of Nur Elahi.

According to the facts given in the petition the case was registered with the police vide FA. R. No. 92 dated 26‑6‑1984 at the instance of Asghar Ali respondent No. 1 alleging therein that Rashid Ahmad petitioner and his two co‑accused Islam Ahmad and Naseer Ahmad variously armed with hatchets and revolver had killed his father Nemat Ali. During the course of investigation however the petitioner and Islam Ahmad were found to be innocent by the police instead one Muhammad Shall was found to be guilty and he and Naseer Ahmad accordingly were challaned. The names of Islam Ahmad and the petitioner were consequently placed in Column No. 2 of the Challan. Asghar Ali respondent aggrieved by the investigation of the case filed a private complaint reiterating therein the allegations contained in his F. I. R against the petitioner and his co-accused namely, Islam Ahmad and Naseer Ahmad. He did not own the result of investigation by the police whereby Muhammad Shafi the fourth man was found to have participated in the crime. After the recording of the preliminary evidence, the learned trial Court issued processes against the three persons initially named in the F. I. R., namely, the petitioner, Islam Ahmad and Naseer Ahmad. Thus, both the complaint and the challan cases came to be pending adjudication before the trial Court. They were fixed for 5‑10‑1995 when a controversy arose as to trial‑which case should commence first or that both of them be amalgamat ed and the trial should be held as single one. The learned trial Judge held that both the State and tile complaint cases overlapped each other, therefore, he directed the commencement of the State case first. The respon dent preferred a revision against the said order of the trial Court whereby the State case was to commence first and relied on the case of Nur Elahi in support of the contention that the complaint case should have been started and decided first and thereafter it would have been optional for the State to press its case or not. This contention haling been accepted by a learned Single Judge in the High Court, order was passed accordingly. The petitioner having been aggrieved by the impugned order of the High Court has sought leave to appeal.

Learned counsel for the petitioner has raised two‑fold contentions: One, that the view taken in Nur Elahi's case has since been modified in two subsequent judgments of this Court. They are Zulfiqar Ali Bhutto etc. v. The State (P L D 1979 S C 53) and Raja Khushbakhtur Rehman and another v. The State (1985 S C M R 1314). He has also cited Mst. Aziz Begum v. Muhammad Khushdil and another (P L D 1981 Kar. 141), in this behalf. Secondly, he has contended that it is laid down in Nur Elahi's case for the application of the dictum therein, namely, different sets of accused persons, different versions and difference of evidence in the complaint and in the State cases it not being satisfied in the present case, Nur Elahi s case would not be attracted for its decision.

We do not agree with the learned counsel that the view taken in the case of Nur Elahi has as (in any of the two judgments of this Court cited by him) been modified. In the case of Zulfiqar Ali Bhutto, the facts and circumstances thereof were found distinguishable and in that context it was observed that Nur Elahi's case would not be followed if the facts of a given case are distinguishable This means that the principles laid down in Nur Elahi's case would still be applicable if the facts and circumstances of a case are not distinguishable on material points. The case of Raja Khushbakhtur Rehman and another is itself distinguishable from both the Nur Elahi's case as also from the present case. The question involved therein was that one of the two cases, namely, complaint case was permitted by the trial Court to have been withdrawn and so was it disposed of. This order was assailed on the ground that there was no provision of law to permit withdrawal in a murder case. On this, it was observed that the fact that the version and the accused in the complaint case and in the State case are the same, a separate trial for each of them might not be necessary. And because the petitioners therein were napped as accused in both the cases no prejudice, it was held, was caused to them by the withdrawal of the complaint case. Thus, the cited case does not support the contention of the learned counsel. The case of Mst. Aziz Begum from Karachi cited by the learned counsel with the contention that it interprets the cases of Nur Elahi and Zulfiqar Ali Bhutto differently also does not support his contention. In our view the following observations made by the learned Judge in that case interprets the case of Nur Elahi in a proper manner:

"In this case, Nur Elahi's case the facts were that the police had sub mitted a report in which two persons had been .implicated. The complainant thought that the police had destroyed the true version and had actually tried to protect the culprits. The complainant, to these circumstances, filed a direct complaint, in which he implicated other persons for the same crime. The question that then arose was in regard to the precedence in the two cases. Their Lordships of the Supreme Court considered the question from the angle that there were two separate cases, in which two sets of different persons were involved and the set of accused in each one of the cases was different. One can understand that in their Lordship s view, they had an intention of obviating any chance of prejudice to any party. The probability of prejudice was present, because, if in the police case, two persons, who had been sent up, were to be acquitted, then the other two persons, who were impli cated in the direct complaint, could not have been tried on the same charge. This is a distinguishing feature, which will provide a rule for decision in the present case. In the present case, tire only accused is the private complaint, or, in the police report is respondent Khushdil. The version in both the police case as well as the direct complaint case is alto the same. The only difference between the two cases is that, in the direct complaint, some witnesses have been added, or, eliminated, as compared with the witnesses shown in the police case. The case of Noor Illahi is, therefore, hardly applicable to the present case."

Thus, it is obvious that the Karachi case does not support the conten tion of the learned counsel rather it goes against the same.

Regarding the second argument of the learned counsel for the peti tioner, suffice it to observe that on facts learned Single Judge having found in this case that the two versions: One, in the complaint and the other in the State case being different and the sets of accused also not being the same in the two cases, the decision in Nur Elahi's case would be att racted, does not need any Interference by this Court on merits. Admittedly, the two versions: One in the State case and the other in the complaint case, are different.

Learned counsel, however, tried to show that the two sets of accused are not different.

We do not agree with him. Name of Muhammad Shafi is mentioned in Column No. 3 of the Challan submitted by the State. Not only this, the State wanted to prosecute the only one accused mentioned by the complai nant in his F. I. R: and placed the other two in Column No. 2. The fact that the trial Court had summoned the other two also would not make any difference in so far as the position adopted in the State case is concerned. Notwithstanding the summoning of the two accused by the trial Court, the State might pursue the line originally adopted in the Challan. As compared to this, the complainant wants to prosecute all the three accused mentioned in the F. I. R. and does not involve Muhammad Shafi as an accused person in his complaint.

In the foregoing context it cannot be said that the same sets of accused persons are intended to be prosecuted in the State case and in the complaint case. Naturally, in view of the difference on the two main points, namely, the sets of the accused and the prosecution version, the evidence to be led by the State would be different from that intended to be led by the com plainant. In the facts and circumstances of this case, therefore, Nur Elahi's, case is fully attracted and the order passed by the learned Single Judge in the High Court is unexceptionable. Accordingly, we find no merit in this petition and the same is dismissed.

M. B. A. Petition dismissed.

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