Iftikhar Ali Vs The State etc.

Form No:HCJD/C-121

ORDER SHEET

LAHORE HIGH COURT LAHORE

JUDICIAL DEPARTMENT

Case No. Crl. Revision No.19436 of 2021

Iftikhar Ali Versus The State & others S.No. of order/ Date of order/ Order with signature of Judge and that of Proceedings Proceedings Parties of counsel, where necessary.

09.06.2021 M/s Asghar Ali Gill and Ijaz-ul-Hassan Mughal, Advocates for the petitioner.

Mr. Asif Javed Qureshi, Advocate for respondent No.2. Mr. Nisar Ahmad Virk, Deputy Prosecutor General.

Through this criminal revision, the petitioner, co-accused of proforma respondent No.3, in connection with a private complaint filed by Mst. Amna Bibi, respondent No.2 for an occurrence of murder regarding which FIR No.1050 dated 06.10.2014 stood registered for offences under Sections 302 & 34 of Pakistan Penal Code, 1860, at Police Station Chuhng, District Lahore, at the instance of Rang Ali regarding the murder of Muhammad Sajjad and Mst. Ayesha Riaz against accused Irfan Hussain, Umar Daraz alias Kali, Amjad Hussain, Riaz Hussain and Muhammad Imran, has come up to this Court assailing the order dated 11.03.2021 passed by the learned trial court declining the summoning of Rang Ali and Nazir Hussain, witnesses of challan case cited in the calendar of witnesses of report under Section 173 of the Code of Criminal Procedure, 1898, as court witnesses in this case (private complaint).

2.Heard. File perused.

3.Admittedly, petitioner as well as proforma respondent No.3 are maternal cousin and real brother respectively, of Rang Ali who is required by the petitioner to be summoned as court witness

besides Nazir Hussain, both eyewitnesses of the challan case. Learned trial court has recorded the statements of other official witnesses cited in the challan case as court witnesses in the private complaint. Though learned counsel for the petitioner has argued that in the light of dictum laid down by the Hon’ble Apex Court of the country in Nur Elahi’s case (PLD 1966 Supreme Court 708), the statements of the said witnesses of challan case cannot be read in evidence in the instant case hence, they are required to be examined in this case as well by the court yet the fact also remains that per dictum laid down in the Nur Elahi’s case the procedure prescribed for the learned trial court with regard to the police challan case and the private complaint case is that the private complaint shall proceed first and after examining all the prosecution witnesses court has been empowered to summon under Section 540 of the Code of Criminal Procedure, 1898, the witnesses as court witnesses named in the calendar of witnesses of police challan case who are not produced by the prosecution in the private complaint case when proceedings in the challan case have been stopped and police challan case to be taken up only if complaint case results in acquittal and in case of conviction police case to be withdrawn by the Public Prosecutor under Section 494 of the Code of Criminal Procedure, 1898. The proposition involved in this case is slightly distinguishable from the one dealt with by the Hon’ble Supreme Court of Pakistan in Nur Elahi’s case. There is no denial to the fact that the complainant, witnesses and the accused of two cases, i.e. FIR case and the private complaint are different and each case has its own prosecution story while in the case of Nur Elahi, the complainant was same and stance in his private complaint was the same he put in the FIR. It is to be clarified here that the case in hand is not the one in which police challan case and the private complaint case are to be proceeded

with one after the other or the private complaint case to be proceeded earlier requiring all the witnesses of police challan case to be recorded after the closure of prosecution evidence, if not examined. Both the cases are proceeding side by side. If the petitioner/accused finds it appropriate that the stance of subject two private witnesses should be brought on record in this case as well, he is having ample opportunity to get them examined as defence witnesses. In this view of the matter, this Court is of the opinion that the learned trial court has rightly exercised its discretion keeping in view the facts and circumstances of this case that does not require any interference by this Court as is being sought through this criminal revision. In consideration of all mentioned supra, this revision petition is dismissed.

(Syed Shahbaz Ali Rizvi) Judge

Approved for reporting.

Judge *Nazir*