LAHORE: The Lahore High Court (LHC) held that the Code of Criminal Procedure, 1898, does not sketch out the procedure clearly for conducting a trial where challan case and private complaint are in the same offence.
The court giving guiding principles for the lower courts in the matter observed that the procedure outlined by the Supreme Court in the Nur Elahi case that a fair procedure would entail the trial judge to take up the complaint case first is recommended generally as some situations may require a departure from it.
The court categorised the proceedings into two distinct groups, one where there are two prosecution versions regarding the same incident but entirely or partially different from the one reported earlier through the First Information Report (FIR), and the other where there are different versions of the same incident by rival parties.
As regards the first category, the court said, where the party lodges a FIR and a private complaint containing the same allegations against the same set of accused persons, the trial court will try the complaint case first and put the challan case on hold until its decision.
Whenever the facts or circumstances allow, cross-cases involving two different versions of the same incident and two distinct sets of accused must be tried together in the same court.
Where the complaint case is instituted after the FIR is lodged and not only there are differences in the names of some of the accused, but at least one person mentioned in the FIR as an accused is excluded and replaced by another individual, the complaint case must be taken up first for trial.
The court said when the persons nominated as accused in the private complaint are the same as those named in the FIR, the trial court has the authority to summon the individuals listed in the report filed by the police.
However, if the police introduce a new individual as an accused who has not been mentioned by the complainant in the private complaint, then the proceedings in the private complaint should be prioritised and completed first, while the challan case should be put on hold.
The court said in the second classification, if the rival parties advance different versions of the same incident through cross-cases and such different versions contain different sets of accused persons, the trial of such cases is to be held simultaneously and side by side.
The court passed this order in a petition of one Asfandyar who approached the court against the decision of a lower court which held that both the complaint and the challan case would proceed side by side.
The petitioner and others kidnapped Tahira Bibi and Ehsan Khaliq and murdered both of them and throw their bodies in a canal.
Ahmadpur Lama Police of district Rahimyar Khan registered the case under sections 302, 311, 148, and 149 PPC.
Earlier, the petitioner’s counsel sought to withdraw his petition.
It is a statutory duty of this court to ensure that the lower courts conduct proceedings in accordance with the law and rejected the request of the petitioners’ counsel.
The court said it can exercise revisional powers, even suo motu, when it comes to its notice that the lower courts have not done so and calls the present case for the exercise of that power.
The court; therefore, set aside the impugned order of the Additional Sessions Judge and issued the guiding principles for the lower courts.
Copyright Business Recorder, 2023
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