PLJ 2022 Cr.C. (Note) 28
[Balochistan High Court, Quetta]
Present: MUHAMMAD KAMRAN KHAN MULAKHAIL AND ROZI KHAN BARRECH , JJ.
MUHAMMAD ARIF and others --Petitioners
versus
STATE through Prosecutor General Balochistan Quetta --Respondent
Crl. Rev. No. 44 of 2020, decided on 21.12.2020.
Criminal Administration of Justice --
----In criminal administration of justice, trial Judge seized of a criminal case should know about all attending
circumstances of offences so that to reach a just conclusion regarding roles of each individual vis -a-vis his
innocence and motive behind offences --The trial Court while awarding punishment has also to consider
mitigating circumstances, and this is possible only when versions of both sides are before Court, and for this
purpose, ne cessary documents of cross case are also exhibited for reaching just conclusion.
[Para 9] A
PLD 1981 SCJ 522.
Counter cases --
----It is settled practice that counter case are tried side by side by same Court till their conclusion and judgments are
pronounced simultaneously. [Para 9] B
PLD 1981 SC 522.
Criminal Procedure Code, 1898 (V of 1898) --
----Ss. 435 & 439 & 337- A(i) & 337- F(i)--Criminal revision --Petitioner was sentenced --He attacked with sticks on
complainant and his daughter, both of them were received injuries --Trial Court without conducting a trial in case
FIR u/Ss. 324, 34, PPC, Police Station, Gowalmandi, in a haphazard manner dealt with trial of petitioner and recorded their conviction and sentence, which exercise undertaken by trial Court is against general practice in
cases of counter versions --True that Code of Criminal Procedure is silent with regard to procedure to be adopted
in trial of counter cases, arising out of same incident and it has not been laid down anywhere in Code of Criminal
Procedure as an absolute rule that all charges and counter -charges must be tried by same Court, however, it is a
salutar y practice that when two criminal cases relate to same incident, they are to be tried and disposed of by
same Court by pronouncing judgments on same day--The two different versions of same incident, resulting in
two criminal cases, are compendiously called and counter case” or “cross cases”--Fair procedure which should
have been adopted was that 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 danger of an ac cused being convicted before his
whole case is before court; to deter conflicting judgment being delivered upon similar facts and in reality, case and counter case are to all intends and purposes different or conflicting versions of one incident and finall y to
determine question as to who was aggressor and who was aggressed upon--Revision partly accepted.
[Para 10] C & D
Syed Ayaz Zahoor , Advocate for Petitioners.
Mr. Muhammad Younus Mengal , Assistant Prosecutor General (“APG”) for State.
Date on Hearing: 1.12.2020.
J
UDGMENT
Rozi Khan Barrech, J. --By this judgment we shall dispose of Criminal Revision Petition No. 44 of 2020
under Section 435, 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., agains t 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 red with Section 34, PPC, 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 red with Section 34, PPC, 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, PPC, 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. Relevant 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, PPC 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 investigation, 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, th e 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 has 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 incident another FIR
No. 66 of 2018 dated 03.04.2018 under Section 324, 34, PPC 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. If 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 t he 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) a nd 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 witn esses 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 coun ter case, i.e. FIR No. 66 of 2018, was
submitted before the learned Additional Sessions Judge -VII, Quetta, that 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 case 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 (ii) Q& D and the case
FIR No. 66 of 2018 for an offence under Section 324, 34, PPC was tried by the learned Additional 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 (A dditional Sessions Judge -VII, Quetta.
9. 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 -
a-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 s imultaneously. 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 afte r 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, inas much 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 t he procedure
prescribed in Nur Elahi’s case need not he followed invariably. We may, whenever however, reiterate that
propriety demands that the facts or circumstances permit, cross -case, giving two different versions of the
same incident and have two diff erent 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”.
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, PPC, 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 pr actice 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
compendi ously 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 judgment being delivered upon similar facts and in reality, the case and
the counter case are to all intends and purposes diff erent or conflicting versions of one incident and finally to
determine the question as to who was the aggressor and who was aggressed upon.
For the reasons discussed above, the revision petition is partly accepted, the impugned judgment dated
29.06.2020 pa ssed by the learned Additional Sessions Judge -V, Quetta and judgment dated 29.02.2020 passed by
learned Judicial magistrate -XI, Quetta, are set aside, and the case is remanded to the learned Additional Sessions
Judge -VII, Quetta, for decision afresh. The t rial of the case FIR No. 66 of 2018 for an offence under Section 324, 34
PPC 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 s hall on the conclusion of the trial in case FIR No.
66 of 2018 and hearing the arguments of parties, shall pronounce judgments in both the cases simultaneously.
The accused/petitioners are on bail, are directed to appear before the learned Additional Sessi ons Judge -
VII, Quetta, on 23.12.2020.
(A.A.K.) Revision partly acceptedThis 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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