2023 P Cr. L J 1276
[Balochistan]
Before Abdullah Baloch and Rozi Khan Barrech, JJ
KHALIQ DAD ---Appellant
Versus
NADIR KHAN and others ---Respondents
Criminal Acquittal Appeal No. 308 of 2021, decided on 21st December, 2022.
(a) Criminal Procedure Code (V of 1898) ---
----Ss. 249- A, 265 -K & 417(2- A)---"Appeal against acquittal"---Acquittal of accused under
S. 249- A or 265- K, Cr.P.C. ---Distinction ---No embargo is placed on the appellate court from
reviewing the evidence upon which an order of acquittal was based---Generally, the order of
acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal ---However, in appeal or revisional proceedings, the order of
acquittal of the accused under S. 249 -A or S. 265 -K of the Cr.P.C. would not have the same
sanctity as orders of acquittal on merits ---Consequently, the principles, which are to be
observed and applied in setting aside the findings of acquittal, or the principles, relating to the presumption of double innocence, when an accused is acquitted after a full -fledged
inquiry and trial to acquittals under S. 265- K of the Cr.P.C., will not be applicable ---
Paramount consideration of the Court is to ensure that miscarriage of justice is prevented---Miscarriage of justice, which may arise from the acquittal of the guilty, was no less than from the conviction of an innocent ---In a case where admissible evidence is ignored, a duty
is cast upon the appellate Court to re -appreciate the evidence in a case where the accused has
been acquitted for the purpose of ascertaining as to whether any of the accused committed any offence or not.
(b) Penal Code (XLV of 1860)---
----Ss. 337- A, 337- D, 337- F, 147 & 149---Criminal Procedure Code (V of 1898), Ss. 249- A
& 417(2- A)---Shajjah, jaifah, ghayr -jaifa, rioting, unlawful assembly---Appreciation of
evidence--- Appeal against acquittal ---Counter cases arising out of same incident ---Procedure
to be adopted by Trial Court ---Complainant was aggrieved of order passed by Trial Court
under S. 249- A, Cr.P.C., acquitting accused of the charge ---Validity ---Record showed that
obviously there was sufficient oral and documentary evidence, i.e. medical certificate and ocular evidence of the other injured witnesses and the same would establish that no fair opportunity was provided to the prosecution to prove its version by producing evidence ---
Trial Court had erred in entertaining the application under S. 249- A, Cr.P.C., filed on behalf
of accused/respondents and ordering their acquittal at a time when the prosecution evidence was yet to be recorded against the accused/ respondents ---No bar of limitation existed as to
the trial or the stage of the proceedings for filing an application for acquittal of the accused,
but propriety demands that fair opportunity should be provided to the prosecution to prove its case by producing evidence and the matter should be decided on merits as envisaged under S. 245, Cr.P.C. after providing a proper opportunity to the prosecution for producing its evidence and recording the statements of the accused persons under S. 342, Cr.P.C.---Record
revealed that that FIR was lodged by SHO with the allegation that 25/30 persons from one
tribe and 35/40 persons from the other tribe were quarrelling with each other with the
cudgels and stones and that people from both sides received injuries ---Complainant lodged
the FIR about the incident and after completion of the investigation, separate challans were submitted against the accused persons of both the tribes and the Trial Court proceeded against the accused from both sides separately ---When the law provides a detailed inquiry
into offences for which an accused had been sent up for a trial, then ordinarily and normally the procedure prescribed by law for deciding the fate of the criminal case should be followed unless some extraordinary circumstances are shown to exist to abandon the regular course and follow the exceptional routes ---In criminal administration of justice, the Trial Court
seized of a criminal case should know about all the attending circumstances of the offences so as to reach a just conclusion regarding the roles of each individual vis -a-vis his innocence
and motive behind the offence ---Trial Court, while deciding the case, also has to consider the
mitigating circumstances, and that is possible only when the versions of both sides are before the Court, and for that purpose, the necessary documents of the cross -case are also exhibited
for reaching a just conclusion--- In the present case, trial in both cases should have been
conducted side by side by the Trial Court, as in such like cases, the prime question was the determination of the aggressor and aggressed upon--- Such a question could not be
determined without analysis of the evidence of both cases ---Trial Court, without concluding
the trial against the accused/respondents, acquitted them in a haphazard manner, dealt with
their trial and recorded their acquittal, which exercise undertaken by the Trial Court was against the general practice in cases of counter versions ---True that the Code of Criminal
Procedure is silent with regard to the 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 Court by pronouncing judgments on the same day---Two different versions of the same incident, resulting in two criminal cases, are compendiously called "case and counter case" or "cross cases ---Fair
procedure which should have been adopted was that the trial Court should have conducted a trial in both cases side by side ---Practical reasons for adopting such a procedure were
nothing but to stave 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 finally to determine the question as to who was the aggressor and who was aggressed upon---Appeal was partly allowed by setting aside the impugned order passed by the Trial Court and the case was remanded to the Trial Court with directions that the case shall proceed from the stage at which it stood when application under S. 249- A, Cr.P.C. was decided; and that after
the conclusion of the trial in both the cross cases and after hearing the arguments from both sides, Trial Court shall pronounce the judgment in both the cases simultaneously.
The State through Advocate General, Sindh High Court of Karachi v. Raja Abdul
Rehman 2005 SCMR 1544 and Abdul Rehman Bajwa v. Sultan and 9 others PLD 1981 SC
522 rel.
Mehboob Alam Mandokhail for Appellant.
Abdul Rehman Lawun for Respondent.
Ameer Haza Mengal, A.P.G. for the State.
Date of hearing: 14th December, 2022.
JUDGMENT
ROZI KHAN BARRECH, J. ---This criminal acquittal appeal was filed to question
the validity of the order dated 25.06.2021 (hereinafter the "impugned order") passed by learned Judicial Magistrate Zhob ("trial court") in Q/D Case No. 02/2020 whereby the application under section 249- A, Cr.P.C., filed by the accused/ respondents Nos.1 to 27 was
accepted, and they were acquitted of the charge by the trial court in FIR No. 181 of 2019 of PS Zhob for offences under section 337- ADF, 147 and 149, P.P.C.
2. Relevant facts for the disposal of the instant appeal are that on 2nd December 2019,
the complainant Haji Muhammad Zamrai IP/SHO, lodged a report at Police Station Zhob, with the allegation that there was a dispute over Viala between the Mandokhail and Babar tribes, so Mandokhail tribe was constructing mosque over the disputed property while Babar
tribe was not allowing it. Thus, on the said date, at 12:00 p.m. the complainant, along with
other police officials, reached Silyaza Viala and saw that 25/30 persons of Mandokhail tribe
residents of Killi Takai and 35/40 persons of Babar tribe residents of Killi Usmanzai were quarrelling each other with cudgels and stones, so the accused persons from both sides received injuries, and on the written report of the complainant Haji Muhammad Zamrai IP/SHO, FIR No. 181 of 2019 was registered at PS Zhob on 02.12.2019.
3. After completion of the usual investigation, separate challans of the case were
submitted before the trial court against the persons from both tribes. The charge was framed to which they did not plead guilty and claimed trial. During the trial, the prosecution produced four witnesses and when the case was fixed for further prosecution evidence, learned counsel for accused/respondents Nos. 1 to 27 filed an application under section 249-A, Cr.P.C. After hearing arguments of the learned counsel for the parties, the learned trial court accepted the application under section 249 -A, Cr.P.C., and acquitted the
accused/respondents Nos. 1 to 27 from the charge on 25.06.2021, whereafter the instant appeal was filed.
4. We have heard arguments advanced on behalf of the learned counsel for the parties
and also perused the record.
5. There is no embargo on the appellate court reviewing the evidence upon which an
order of acquittal is based. Generally, the order of acquittal shall not be interfered with
because the presumption of innocence of the accused is further strengthened by acquittal.
However, in appeal or revisional proceedings, the order of acquittal of the accused under section 249- A or section 265- K of the Cr.P.C. would not have the same sanctity as orders of
acquittal on merits. Consequently, the principles, which are to be observed and applied in setting aside the findings of acquittal, or the principles, relating to the presumption of double
innocence, when an accused is acquitted after a full -fledged inquiry and trial to acquittals
under section 265- K of the Cr.P.C., would not be applicable. The paramount consideration of
the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice, which
may arise from the acquittal of the guilty, is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to re-appreciate the evidence in a case where the accused has been acquitted for the purpose of ascertaining as to whether any of the accused committed any offence or not.
6. The object of the exercise of powers is to prevent abuse of law available to the
learned trial Court under sections 265- K and 249 -A of the Cr.P.C.; however, in a case where
sufficient, prima -facie evidence is available, the powers may not be exercised as to throttle
the process of justice. The main consideration to be kept in view would be whether the continuance of the proceedings before the court would be a futile exercise, a wastage of time
and an abuse of the process of court or not. If on the basis of facts admitted and a patent on
record, no offence can be made out, then it would amount to an abuse of the process of law to allow the prosecution to continue with the trial.
7. If the facts of the present case are scrutinized on the touchstones of the above criteria,
then it would be obvious that there was sufficient oral and documentary evidence, i.e. medical certificate and ocular evidence of the other injured witnesses and the same would
establish, that no fair opportunity was provided to the prosecution to prove its version by producing evidence.
8. We have also observed that the trial court had erred in entertaining the application
under section 249- A of the Cr.P.C., filed on behalf of accused/respondents Nos.1 to 27 and
ordering their acquittal at a time when the prosecution evidence was yet to be recorded against the accused/respondents. We are conscious of the fact that there was no bar of limitation as to the trial or the stage of the proceedings for filing an application for acquittal of the accused, but propriety demands that fair opportunity should be provided to the prosecution to prove its case by producing evidence and the matter should be decided on merits as envisaged under section 245 of the Cr.P.C. after providing a proper opportunity to the prosecution for producing its evidence and recording the statements of the accused persons under section 342 of the Cr.P.C.
9. The Hon'ble Supreme Court has held in the case of The State through Advocate
General, Sindh High Court of Karachi v. Raja Abdul Rehman (2005 SCMR 1544) that when the law provides a detailed inquiry into offences for which an accused has been sent up for a trial, then ordinarily and normally the procedure prescribed by law for deciding the fate of the criminal case should be followed unless some extraordinary circumstances are shown to exist to abandon the regular course and follow the exceptional routes.
10. During the course of the arguments, it was revealed from the record that FIR No.
181/2019 was lodged by Haji Muhammad Zamrai IP/SHO with the allegation that 25/30
persons from the Mandokhail tribe and 35/40 persons from the Babar tribe were quarrelling with each other with the cudgels and stones and that people from both sides received injuries. The complainant lodged the FIR No. 181 of 2019 about the incident, and after completion of
the investigation, separate challans were submitted against the accused persons of both the
tribes' men, and the trial court proceeded against the accused from both sides separately.
11. Being cross cases; unfortunately, both the cases were tried by the Judicial Magistrate
Zhob separately, and all the accused/respondents were acquitted from the charge on the basis
of an application filed under section 249- A, Cr.P.C., on 25.06.2021 after recording
statements of four prosecution witnesses.
12. In criminal administration of justice, the trial Judge seized of a criminal 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 deciding the case, has also to consider the mitigating circumstances, and this is possible only when the versions of both 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 cases 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 9 others (PLD 1981 Supreme Court 522) that;
"21. The question of the mode of trial of cross cases, one initiated through a private complaint 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 in 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 demands 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 obvious 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".
13. The trial in both cases should have been conducted side by side by the trial court, as
in such like cases, the prime question is the determination of the aggressor and aggressed upon. Such a question cannot be determined without analysis of the evidence of both cases. The trial court, without concluding the trial against the accused/respondents, acquitted them
in a haphazard manner, dealt with their trial, and recorded their acquittal, which exercises
undertaken by the learned trial is against the general practice in cases of counter versions. True that the Code of Criminal Procedure is silent with regard to the 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
court 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 a procedure are nothing but to stave 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 who was aggressed upon.
14. For the foregoing facts and discussion, this appeal is partly allowed. Consequently,
while setting aside the impugned order dated 25.06.2021 passed by the trial court in FIR No.181 of 2019, the case of the accused/respondents is remanded to the trial court, which shall proceed from the stage at which the case stood when the application of accused/respondents Nos. 1 to 27 under section 249- A of the Cr.P.C. was decided. Since the
trial against the accused persons from the Mandokhail tribe is already pending before the learned Judicial Magistrate Zhob, therefore, the trial court is directed that after the conclusion of the trial in both the cross cases and after hearing the arguments from sides
shall pronounce the judgment in both the cases simultaneously.
JK/25/Bal. Appeal partly allowed.This 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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