KHALIQ DAD vs NADIR KHAN Ss — 2023 PCrLJ 1276 QUETTA-HIGH-COURT-BALOCHISTAN

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KHALIQ DAD VS NADIR KHAN 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.

KHALIQ DAD vs NADIR KHAN Ss — 2023 PCrLJ 1276 QUETTA-HIGH-COURT-BALOCHISTAN

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