It is an established rule that every offence which is committed is against the state. The state will prosecute that person for committing the offences against the society. To set the criminal law into motion FIR is registered u/s 154. Thereafter, that case becomes a state case. Then investigation be got conducted and report under section 173 Cr.P.C., be submitted through public prosecutor in the court. The state case is prosecuted through public prosecutor.
The allegation made orally or in writing to a magistrate with a view to his taking action under Cr.P.C., that some person whether known and unknown, has committed an offence. But it does not include the report of police officer.
No role in complaint case by prosecutor.
1984 P.Cr.L.J 438 i.e:-
In complaint case prosecution will not be conducted by prosecutor.
Tackling Different Situations
- To proceed with the criminal case after filing of private complaint; especially when state case is entrenched in its own footings, is nothing but to flow in a vast and deep ocean. For its flow, courts remained playing their role of sailboards to the yacht of criminal case with the passage of time by its verdicts.
- Let us analyze the situation by discussing the verdicts of different courts regarding tackling different situations:
- When version of the complaint and state are different and with different set of accused persons.
- When the set of accused persons and version set out in both the cases are same.
- When the set of accused persons are technically same.
- Whether copies under section 265-C Cr.P.C. can be delivered to accused in case of proceedings in private complaint.
- Challan case and complaint case have been filed by different parties containing different versions against different accused persons.
- Trial of the cases of different versions when complainant party is made accused.
- For the first time in the sail of this situation, August Supreme Court of Pakistan tried to tackle the situation in a decision of full bench headed by A.R. Cornelius, C.J. in a case Nur Elahi Versus State and others cited in PLD 1966 Supreme Court 708
Brief Facts of Nur Elahi Case
The matter was reported to the Police that murder of one, Muzaffar Piracha, was committed by accused namely Ch. Zafar-ul-Haq, Ikram-ul-Haq and Nawaz-ul-Haq. But the police during investigation prosecuted one, “Ch. Ikram and Banaaras, as the accused. The accused Ch. Zafar-ul-Haq and Nawaz-ul-Haq were placed in column No. 2 of report under section 173 Cr.P.C., with blue ink. Being aggrieved, the complainant namely Nur Elahi filed a complaint with version of FIR. During proceedings of the case, the proposition arose that how the challan case and complaint case to be proceeded and dealt with. Later on, the proposition resolved by Supreme Court of Pakistan.
PLD 1966 S.C 708
- The complaint case is to be tried first.
- The witnesses in the list annexed with the complaint case shall be examined by the court as PWs.
- The witnesses in the challan case shall be examined by the court as CWs u/s 540 Cr.P.C.
- The opportunity to cross examination shall be given to both the parties.
- In case of conviction in complaint case:-
- The public prosecutor may consider that whether he should withdraw the state case under section 494 or not.
- In case of acquittal in complaint case.
- If the public prosecutor considers that the challan case has not been seriously damaged by first trial in complaint case, the state case may be taken up for trial.
Dissenting view by B.Z. Kaikaus (J)
- The challan case and complaint case be consolidated and tried singly.
- There is no bar in Cr.P.C. as to joint trial.
- Every trial before a court of sessions is to be conducted by public prosecutor.
Syed Muhammad Hussain Shah Vs Abdul Hamid and others
1981 SCMR 361.
Complaint was filed by dropping one of the accused person from FIR and adding of another accused in complaint is also amounted to different set of accused persons and complaint case shall be taken up first
Zulfiqar Ali Bhutto V/s The State
PLD 1979 S.C 53
In case of filling of complaint with the similar version and set of accused persons then there is no need to proceed with the complaint case first then the state case can be taken up first and decided.
Raja Khushbakhtur Rehman and another Vs The State
1985 SCMR 1314
No necessity for a separate trial of the two cases when, technically speaking there were neither two sets of accused nor different versions nor any additional evidence to be examined by the complainant. Only one additional accused was nominated by the police during investigation even then it was held that there need no separate trial of complaint and state case.
Dictum of Nur Elahi case was also followed in number of cases
(PLD 1986 S-C 737)
(Muhammad Dildar Malik V/s Tahir Mehmood, 1998 SCMR 652)
- Where the version in the complaint case and challan case are different, the sets of accused also not being the same, the decision in Nur Elahi’s case would be more attracted.
Opinion of High Courts
(2002 YLR 1714) i.e:-
- If the challan and complaint case, having different set of accused, different versions in both cases, then both cases should be consolidated. Complaint case should be taken up first and after examining witnesses in complaint case, court would summon remaining witnesses mentioned in calendar of witnesses in challan case as CWs (court witnesses).
In case of different parties and different versions
Mst. Haleema Bibi V/s The State
2008 YLR 1144 i.e:-
- If challan case and complaint case have been filed by two different parties containing the complaint case and the challan case are to be held simultaneously and side by side and not one after the other.
Atta Jilani case:
1980 P.Cr.L.J 901 i.e:-
- If story in the challan case and complaints case are same but number of accused differs then,
- Both case be consolidated and tried together.
- First taken up the case in which larger set of accused is mentioned.
- The witnesses not mentioned in larger set of accused case be examined as CWs in larger set of accused.
- If the case tried first succeeds or fails, the other will not be taken up later.
Manzoor Akbar Turk case:
2008 MLD 728 i.e:-
- Challan and complaint case be dealt independently.
- Copies to be supplied separately under section 265-C(1) & 265-C(2).
- The trial court will pass a speaking order before framing of charge that what procedure would be adopted by him during trial i.e:-
- Be tried independently or consolidated manner.
- If different set of accused, the rule of Nur Elahi’s case to be followed.
To analyze, after perusing thoroughly:
- Question arises that whether the satisfaction of subject/citizen is prime concern for the state?
I am of the view that if the subject is aggrieved then the state will satisfy the subject up to the utmost effort. Being aggrieved from the state case, one can file a complaint case then the state will not pursue the challan case until the satisfaction of the complainant.
- Again question arises, whether the citizen have no trust upon state agencies?
Yes, I am of the view that the state should create such circumstances as everyone should have a blind believe upon state agencies.
- Furthermore, in case of acquittal in complaint case, if prosecutor pursue the challan case (in which the version is same and set of accused same) for trial, then question arises that it would not amount to double Jeopardy u/s 403 Cr.P.C. and under the constitution as well or it would not against the UN charter of universal declaration?
I am of the humble view that if the prime object of the state is to satisfy the subject then the state should not pursue the state case furthermore in the interest of justice and fair trial. But, if the prime object is to punish the offender who has committed the offence against the society then state has to restore trust of public upon state agencies and ultimately the filing of complaint case would be discouraged. And the court by applying principle of double jeopardy should also disallow the second trial.
- Another question arises, if public prosecutor, after the conviction in the complaint case, withdraw its case and in appeal either in high court or in Supreme court if version of the complaint case found to be false and that of state case to be true, then what would happen to the occurrence when public prosecutor has already withdrawn its state case.
- Another question arises that if set of accused not totally different then in case of acquittal in complaint case if the challan case to be pursued in which some accused are same as were in complaint case then to the extent of those accused principle of double jeopardy would not be attracted/applicable? I have the humble view that principle of double jeopardy to the extent of those same accused would be attracted.
- Another pertinent question arises that whether the court can orders for consolidation of complaint and challan case and detachment of certain documents annexed with challan case and be annexed with complaint case?
I am of the view that consolidation of complaint case and challan case is an alien concept to the Cr.P.C. and furthermore, court cannot order for detachment of certain documents annexed with challan case and be annexed with complaint case.
- Here, another question arises that when proceedings in the complaint case is taken up first then at the time of examination of the prosecution witnesses if some document is to be exhibited is available with challan case then only photo state copy of that document is available then as per law same cannot be exhibited in the availability of the original which is with the state case. Since the same have not been exhibited because the trial in the challan case have not commence then there is bar to obtain its attested copy. In this situation what should be done; as there is no procedure have been devised for the same.
- By applying the principle of the Atta Jillani Vs state when proceedings of both the complaint and state cases are consolidated for the purpose of recording evidence then if complainant, by joining hands with accused persons, resile from their statements then the case of the state will also die with the complaint case, In this situation can complainant and his witnesses be got declared hostile and can they be cross-examined by prosecutor?
- When proceedings of both the case are consolidated then what would be the role of prosecutor?
- When both the cases are consolidated then which of the document is to be exhibited in complaint case and which in state case?