2023 PCrLJN 56 LAHORE-HIGH-COURT-LAHORE

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Syed RIAZ HUSSAIN SHAH VS GOVERNMENT OF PUNJAB through Additional Chief Secretary, Home Department, Punjab Civil Secretariat, Lower Mall, Lahore Ss. 302, 324, 353, 186, 440, 337-D, 148, 149 & 34---anti-Terrorism act (XXVII of 1997), S. 7---Civil Procedure Code (V of 1908), S. 12(2)---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public functions, mischief committed after preparation made for causing death or hurt, jaifah, rioting armed with deadly weapon, unlawful assembly, common intention, act of terrorism---Constitutional petition---Orders of the special court for transferring the cases to the ordinary court assailed---Scope---Record showed that about a police encounter, wherein four accused lost their lives besides one Police Constable, FIR was recorded under Ss. 302, 324, 353, 186, 440, 337-D, 148 & 149, P.P.C. read with S. 7 of anti-Terrorism act, 1997---Challan was submitted in the anti-Terrorism Court---One of the legal heirs of two deceased accused came forward with a version that it was fake police encounter---Narrative of the said person was recorded, investigated and concluded in the manners that two Police Officers were declared innocent, whereas one Police Officer was declared as accused of abetment and separate challan was submitted in the Special Court---Said legal heirs of the deceased accused persons was not satisfied with the investigation, so he filed a private complaint under Ss.302 & 34, P.P.C. in the court of ordinary jurisdiction---Ultimate position was that two challans and a complaint case came up for hearing before the Special Court and the said court observed that S. 7 of the act, 1997, was not made out hence it was triable by the court of ordinary jurisdiction---Validity---In the present case, how the application under S. 12(2), C.P.C., was maintainable when there was no fraud played with the court, no misrepresentation had been made and that the order was not without jurisdiction---Petitioner had completely failed to substantiate his plea in that regard therefore, the application was declared as not maintainable---Provisions of the Code of Criminal Procedure, 1898, were silent on procedure of trial of cross cases or cases outcome of one and the same FIR---Court, in circumstances, had to see that what could be the best way to come out from the said challenge because the ultimate duty of the court was to do the complete justice that means justice for all concerned to the cases without causing any miscarriage of justice or prejudice---Sole object of side by side trials in such cases was to give the trial Judge a complete picture of the whole situation with a view to help him in a proper assessment and appreciation of the evidence in each case, which must be decided on its separate evidence and record without any importation of the evidence of the other case---However, it appeared that petitioner was under an impression that as the cases were to be tried by anti-Terrorism Court, therefore petitioner had also to face the charges under any of the scheduled offences---Such was not the correct position because the cases against petitioner and others were sent back to anti-Terrorism Court not for the reason that those were exclusively triable by that court but only by following the rule of propriety so as to avoid the conflict judgments---Fact remained that cross cases outcome of one and the same occurrence were to be tried by one and the same court unless there were compelling circumstances to do otherwise---Petition was dismissed, in circumstances.

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