2022 M L D 1589
[Balochistan]
Before Muhammad Kamran Khan Mulakhail and Rozi Khan Barrech, JJ
MUHAMMAD ARIF and others ---Petitioners
Versus
The STATE through Prosecutor General Balochistan, Quetta ---Respondent
Criminal Revision No.44 of 2020, decided on 21st December, 2020.
(a) Penal Code (XLV of 1860) ---
----Ss. 337- A(i), 337- F(i), 337 -L(2) & 34 ---Shajjah -i-khafifah, ghayr -jaifah, damiyah,
causing hurt and common intention---Appreciation of evidence ---Prosecution case was that
the accused arme d with sticks attacked upon the complainant and his daughter and both of
them received injuries ---Record showed that the challan of case was submitted before the
Judicial Magistrate, who tried the case and accused petitioners were convicted ---Cross case
was submitted before the Sessions Court which was tried and accused were acquitted ---
Complainant of said cross case filed acquittal appeal, which was partly allowed and case was
remanded to the Trial Court ---Trial in both the cases should have been conducted side by
side by the Trial Court, as in such like cases, the prime question was the determination of
aggressor and aggressed upon--- Such a question could not be determined without analysis of
the evidence of both the cases ---Trial Court without conducting a trial in case under Ss. 324
& 34, P.P.C., had dealt with the trial of the petitioners in a haphazard manner and recorded their conviction and sentence, which exercise undertaken by the Trial Court was against the general practice in cases of counter vers ions---True that the Code of Criminal Procedure,
1898 was silent with regard to procedure to be adopted in the trial of counter cases, arising out of the same incident and it had not been laid down anywhere in the Code of Criminal Procedure, 1898 as an abs olute rule that all charges and counter -charges must be tried by the
same court, however, it was a salutary practice that two criminal cases relating to the same incident were to be tried and disposed of by the same court by pronouncing judgments on the same day ---Practical reasons for adopting such procedure was nothing but to staves off the
danger of an accused being convicted before his whole case was before the court ---To deter
conflicting judgments being delivered upon similar facts and in reality, the case and the
counter case were to all intend and purposes different or conflicting versions of one incident and finally to determine the question as to who was the aggressor and who was aggressed upon--- Petition was partly accepted, in circumstances and b y setting aside the impugned
judgments and the case was remanded to the Additional Sessions Judge for decision afresh.
(b) Criminal trial ---
----Cross -versions ---Scope ---Counter cases would be tried side by side by the same court till
their conclusion and judgments are to be pronounced simultaneously. [p. 1593] B
Abdul Rehman Bajwa v. Sultan and 9 others PLD 1981 SC 522 rel.
Syed Ayaz Zahoor for Petitioners.
Muhammad Younus Mengal, Assistant Prosecutor General ("APG"). for the State.
Date of hearing: 1st December, 2020.
JUDGMENT
ROZI KHAN BARRECH, J. ----By this judgment we shall dispose of Criminal
Revision Petition No.44 of 2020 under section 435 and 439, Cr.P.C., which is directed
against the judgment dated 29.06.2020 (hereinafter "the impugned Judgment") passed by the learned Additional Sessions Judge -V, Quetta, (hereinafter "the appellate court") whereby the
appeal filed by the appellant under section 408, Cr.P.C., against the judgment dated 20.02.2020 (hereinafter "the Judgment") passed by the learned Judicial Magistrate -XI,
Quetta, (hereinafter "the trial court") was dismissed wherein the accused/petitioners were convicted in the following manners: -
"Under section 337- A(i) Q&D read with section 34, P.P.C., Daman amounting to
Rs.40,000/ - (Rupees Forty Thousand Only) each and in default whereof, they be dealt
with under section 337- Y (ii) Q&D.
Under section 337- F (i) Q&D read with section 34, P.P.C., Daman amounting to
Rs.10, 000/ - (Rupees Ten Thousand Only) each and in default whereof, they be dealt
with under section 337- Y (ii) Q&D.
Under section 337- L (ii) Q&D read with section 34, P.P.C., Daman amounting to
Rs.10, 000/ - (Rupees Ten Thousand Only) each and in default whereof, they be dealt
with under section 337- Y (ii) Q&D ".
2. Relevan t facts for the disposal of this criminal revision petition are that on 03.04.2018
the complainant Muhammad Anwar son of Sultan Ahmed lodged FIR No.65 of 2018 at Police Station Gowalmandi District Quetta under section 337 -ADF/34, P.P.C. with the
averments that on 03.04.2018 at 12:05 a.m., (night) the accused/petitioners armed with sticks
attacked upon the complainant and his daughter namely Mst. Saima and both of them were received injuries. Hence the crime report.
3. After completion of the usual investiga tion, challan of the case was submitted before
the learned trial court. The charge was framed against the accused/petitioners to which they pleaded not guilty and claimed trial. After full dressed trial, the petitioners were convicted by the learned trial court on 29.02.2020 as mentioned in the opening para.
4. Being aggrieved from the Judgment dated 29.02.2020 passed by the learned trial
court, the petitioners filed an appeal under section 408 Cr.P.C., before the learned appellate court and the same was dismissed on 29.06.2020, whereafter the instant petition ha s been
filed.
5. We have heard the learned counsel for the petitioners as well as learned APG and
have gone through the available record with their able assistance.
6. During course the of the arguments it reveals from the record that about the same
incide nt another FIR No.66 of 2018 dated 03.04.2018 under section 324, 34, P.P.C. has been
registered on the report of one Dr. Muhammad Arif, i.e. one of the petitioner. In the cited
FIR, the complainant party of the instant case has been nominated as accused. I f both the
FIRs are taken in juxtaposition, the time, date and place of occurrence and parties are the same. In the FIR No.66 of 2018 registered by the petitioner Dr. Muhammad Arif against the complainant party with the allegation that on 03.04.2018 at 12: 05 a.m., (night) he along with
his family members were sleeping in their house, the accused (Muhammad Anwar, the complainant in FIR No.65 of 2018) and other three accused persons entered into his house and attacked upon his brother and made firing upon him and he received injuries.
7. In the instant case (FIR No.65 of 2018) challan of the case was submitted before the
learned Judicial Magistrate- X, Quetta, after recording the statement of complainant/PW -1
and when the case was fixed for further prosecution version, meanwhile the case in hand was transferred to the court of learned Additional Sessions Judge -VII, Quetta. At their statement
of three witnesses of prosecution were recorded, and the case in hand was returned back to the court of Judicial Magistrate -X, Quetta. It is worthwhile to mention here that when the
challan was submitted before the Judicial Magistrate -X, Quetta, the challan of the counter
case, i.e. FIR No.66 of 2018, was submitted before the learned Additional Sessions Judge -
VII, Quetta, tha t is whey the learned Judicial Magistrate -X, Quetta, sent the case to the
learned Sessions Judge, Quetta, with the request to transfer the said case to the learned Additional Sessions Judge -VII, Quetta.
8. Being a cross cases unfortunately, the instant cas e FIR No.65 of 2018 was tried by the
Judicial Magistrate and the petitioners were convicted for an offence under section 337- F (i),
337- L (2) Q&D and the case FIR No.66 of 2018 for an offence under section 324, 34, P.P.C.
was tried by the learned Additiona l Sessions Judge -VII, Quetta, and the accused were
acquitted from the charge on the basis of an application under section 265- K Cr.P.C., on
21.10.2019. Being aggrieved, the complainant of FIR No.66 of 2018 filed Criminal Acquittal Appeal No.461 of 2019 for an offence under section 417(2), Cr.P.C., before this court and
the same was partly accepted, and the case was remanded to the trial court (Additional Sessions Judge -VII), Quetta.
9. In criminal administration of justice, the trial Judge seized of a crimi nal case should
know about all the attending circumstances of the offences so that to reach a just conclusion regarding the roles of each individual vis -à-vis his innocence and motive behind the offences.
The trial court while awarding punishment has also to consider the mitigating circumstances,
and this is possible only when the versions of both the sides are before the court, and for this purpose, the necessary documents of the cross case are also exhibited for reaching the just conclusion. Apart from the above, it is settled practice that counter case are tried side by side by the same court till their conclusion and judgments are pronounced simultaneously. It was
held in Abdul Rehman Bajwa v. Sultan and 09 others (PLD 1981 Supreme Court 522) that;
"21. The question of the mode of trial of cross cases, one initiated through a private
compliant and the other by Police through a challan, about the same incident, giving
different versions and against two different sets of accused persons, was considered by this court in Nur Elahi v. The State (PLD 1966 SC 708) and it was held that both
the cases should be tried by the same court, one after the other. The procedure prescribed in Nur Elahi 's case was later considered by this court in Zulfikar Ali Bhutto v. The State (PLD 1979 SC 1). The circumstances in the cases of Nur Elahi's and that of Zulfikar Ali Bhutto were materially different, inasmuch as in the last mentioned case the accused in the private complaint as well as the police case were the same persons. In other words, they were not 'cross -cases' in the sense in which the
expression is generally understood. It was, therefore, held that the procedure prescribed in Nur Elahi's case need not be followed invariably. We may, however, reiterate that propriety d emands that whenever the facts or circumstances permit,
cross -case, giving two different versions of the same incident and have two different
sets of accused, should be tried by the same court, together. As already observed, the logic behind this view is o bvious because if the two cases giving different versions of
the same incident are not tried together, there would be serious likelihood of conflict in judgments".
10. The trial in both the cases should have conducted side by side by the learned trial
court, as in such like cases, the prime question is the determination of aggressor and
aggressed upon. Such a question cannot be determined without analysis of the evidence of both the cases. The learned trial court without conducting a trial in case FIR No.66 of 2018
dated 03.04.2018 under section 324, 34, P.P.C., Police Station, Gowalmandi, in a haphazard
manner dealt with the trial of the petitioner and recorded their conviction and sentence, which exercise undertaken by the learned trial court is against the general practice in cases of counter versions. True that the Code of Criminal Procedure is silent with regard to procedure to be adopted in the trial of counter cases, arising out of the same incident and it has not been laid down anywhere in the Code of Criminal Procedure as an absolute rule that all charges
and counter -charges must be tried by the same court, however, it is a salutary practice that
when two criminal cases relate to the same incident, they are to be tried and disposed of by the same cour t by pronouncing judgments on the same day. The two different versions of the
same incident, resulting in two criminal cases, are compendiously called "case and counter case" or "cross cases". We think that the fair procedure which should have been adopted was
that the trial court should have conducted a trial in both cases side by side. The practical reasons for adopting such procedure is nothing but to staves off the danger of an accused being convicted before his whole case is before the court; to deter conflicting judgments
being delivered upon similar facts and in reality, the case and the counter case are to all intends and purposes different or conflicting versions of one incident and finally to determine the question as to who was the aggressor and w ho was aggressed upon.
For the reasons discussed above, the revision petition is party accepted, the impugned
judgment dated 29.06.2020 passed by the learned Additional Sessions Judge -V, Quetta and
judgment dated 29.02.2020 passed by learned Judicial magi strate -XI, Quetta, are set aside,
and the case is remanded to the learned Additional Sessions Judge -VII, Quetta, for decision
afresh. The trial of the case FIR No.66 of 2018 for an offence under sections 324, 34, P.P.C.
has already been pending before the learned Additional Sessions Judge -VII, Quetta. After the
conclusion of the trial in the cross -case FIR No.66 of 2018 the learned trial court shall on the
conclusion of the trial in case FIR No.66 of 2018 and hearing the arguments of parties, shall pronounc e judgments in both the cases simultaneously.
The accused/petitioners are on bail, are directed to appear before the learned
Additional Sessions Judge -VII, Quetta, on 21.12.2020.
JK/46/Bal. Case remandedThis judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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