Form No: HCJD/C-121

ORDER SHEET
IN THE LAHORE HIGH COURT
BAHAWALPUR BENCH BAHAWALPUR
JUDICIAL DEPARTMENT

Case Crl. Revision No.45 of 2025.

No:

Muhammad Shafiq vs. The State, etc.

S.No. of Date of Order with signature of Judge, and that of parties
order/ order/ or counsel, where necessary
proceeding Proceeding
Mian Muhammad Tayyab Watto, Advocate for
23.04.2025. the petitioner.
Mr. Zafar Iqbal Somro, Deputy District Public
Prosecutor.
Mirza Muhammad Azam, Advocate for the
respondent No.2

Brief facts of the case are that case FIR No.501/2021 was
registered under sections 324, 148 & 149 PPC. During the
occurrence Allah Ditta got injury, against that particular case
the cross version was registered. Police after completing
investigation, prepared report under section 173 Cr.P.C. and
both parties were challaned. This particular case is now pending
adjudication before learned Magistrate Section-30
Minchinabad. During the interregnum, the injured of the
occurrence died, being dissatisfied with the police investigation
the complainant of the FIR filed a complaint. The complaint
was entrusted to the court of Mr. Abdul Qadoos, Additional
Sessions Judge Minchinabad. Accused were summoned, as the
occurrence totally relates to case FIR No.501/2021 Police
Station Minchinabad. In the complaint case, trial court
summoned the judicial record of case FIR No.501/2021 from
the court of learned Magistrate. The instant petition has been
filed and through which it has been averred that the learned trial
court could not have summoned the record of case FIR
No.501/2021; further submits that the summoning of record
Crl.Revision No.45 of 2025

tantamount to transfer of criminal case from one court to

another and this jurisdiction can only be exercised u/s 528
Cr.P.C and not otherwise.
2. Learned law officer duly assisted by counsel for the
respondent No.2 contended that the learned trial court has
rightly exercised the jurisdiction in the matter and has
summoned record of case FIR No.501/2021 as this is the
relevant record for the determination of the pending trial.
3. Heard. Record perused.
4. The learned trial court has power to summon record
under Section 94 of the Cr.P.C. which reads as under :-
“Whenever any Court, or, any officer-in-charge of a
police-station considers that the production of any
document or other thing is necessary or desirable for
the purposes of any investigation, inquiry, trial or
other proceeding under this Code by or before such
Court or officer, such Court may issue a summons, or
such officer a written order, to the person in whose
possession or power such document, or thing is
believed to be, requiring him to attend and produce it,
or to produce it, at the time and place stated in the
summons or order”

5. A bare reading of section 94 shows that there is no

limitation as to the stage of the inquiry or trial when a court can,
in the exercise of its power under this section, make an order for
the production of any document. The only condition for the
exercise of the power under section 94 Cr.P.C is that the
production of the document must be necessary or desirable for
the purposes of the inquiry or trial before the court. The word
'whenever' in section 94 clearly indicates that a court can
exercise the power of requiring the production of any document
under this Section at any stage of the inquiry or trial.
6. Further, section 94 does not restrict as to whose point of
view, whether of the prosecution or the accused, the required
document may be necessary or desirable for the purposes of the
inquiry or trial. A court being a neutral arbiter does not act for
either the prosecution or the accused but for the dispensation of
Crl.Revision No.45 of 2025

justice. And for the dispensation of justice, the court is to

ascertain the truth in respect of the matter under inquiry or trial
before it. The production of a document that would facilitate the
court in this regard is to be considered necessary or desirable
for the purposes of the inquiry or trial. It is immaterial whether
the production of such a document would support the
prosecution case or the defence of the accused. Therefore, any
party may at any stage of the inquiry or trial apply to the court,
under section 94, for the production of a document and is
entitled to its production if it satisfies the court that the
production of that document is necessary or desirable for the
purposes of such inquiry or trial1.
7. In Shakeel Akhtar v. The State and others this Court
determined that the word "thing" in section 94, Cr.P.C. should
be broadly construed to encompass anything relevant to the
offence, the production of which would promote the cause of
justice. The relevant excerpt is reproduced below :
"Section 94 Cr.P.C., Articles 24, 40, 59 and 164 of
QSO [the Qanun-eShahadat 1984] and Rule 2 of
Chapter 1-E, Volume III of the Rules and Orders of
the Lahore High Court, must be given a purposive
interpretation. In particular, the term "thing" used in
section 94 Cr.P.C. and Article 161 of QSO must be
given a broad meaning and understood to signify
anything connected with the offence whose
production will serve the interest of justice. In the
case of Abdul Latif Aassi v. The State (1999 MLD
1069 : 2001 P.Cr.J. 548), Asif Saeed Khan Khosa J.
stated that contrary to the general perception that we
have an adversarial justice system, sections 245(1),
540, 428 and 561-A Cr.P.C., Article 161 of QSO and
Rule 2, supra, cut over that paradigm and allow the
courts to take an inquisitorial approach in certain
circumstances. Therefore, in a criminal case, a trial
court can rectify an intentional or unintentional
lapse on the part of the complainant, the
Investigating Officer or the prosecuting counsel by
calling in evidence on its own if it can have a
bearing on the determination of guilt or innocence of
the accused person. Such authority must be granted
to a criminal court in the larger interest of the
community. The stage of the trial is irrelevant for

1
2023 SCMR 1676 The State Vs Chaudhary Muhammad Usman
Crl.Revision No.45 of 2025

this purpose. The only factor important for

exercising such power is that the evidence called is
relevant."

8. Bare reading of the above reveals that any document

which is necessary for the purpose of the trial may be
summoned by the trial Court. The term document includes
record as well. There is only one exception which relates to
banking documents mentioned in the first proviso the ibid
Section, and those can be summoned only after fulfilling codal
formalities. The learned trial court in its own wisdom has
determined that both cases pertains to single incident, thus the
record of the state case is imperative for determination of the
complaint case and it is case of nobody here that record would
not be relevant in complaint case.

9. Now, adverting to the second contention of the learned

counsel that the summoning of record tantamount of transfer of
proceedings. The real issue is there is one occurrence and there
is a state case and a complaint case pending before two criminal
Courts of different classes. The Code of Criminal Procedure is
silent with respect to the procedure to be adopted in the trial of
counter cases arising out of the same occurrence. It has not been
laid down anywhere in the Code as an absolute rule that all
charges and counter charges must be tried by the same court in
the manner. In Nur Elahi Vs. The State’s case (PLD 1966 SC
708) a situation of such nature arose but the situation in hand is
bit different from Noor Elahi’s case because there were three
accused nominated in the FIR, whereas two of them were
mentioned in the Column No. 2 of the State case and an
accused of F.I.R Ch. Ikram and one Banaras were accused in
State case. Complainant filed a complaint and reiterated the
version set forth in the complaint. The matter eventually
reached before the Supreme Court and it was held that
complaint case would proceed first and thereafter state case
would start in the same trial. However, it is be noted that both
Crl.Revision No.45 of 2025

cases, complaint and State case were murder trials and were
essentially to be tried by the Court of Sessions but it is
inapplicable on the case in hand as facts of cases are different.

10. In “Emperor v. Karam Singh” (A I R 1930 Lah. 312),

Shadi Lal, C. J. took the view that a case triable by a Magistrate
and not exclusively triable by a Court of Session should not be
committed to the Court of Session merely to avoid possible
conflict of decisions and the proper course in such a case is to
await the result of the Sessions trial. This decision was followed
by Tek Chand, J. in “Emperor v. Nathu and others” (A I R
1932 Lah. 168). In the view of the learned Judge, an apparent
connection of a case under section 326 of the Penal Code with a
case under section 302 thereof is no ground for committing it to
the Sessions Court when the offence involved is triable and can
be adequately punished by a First Class Magistrate or one
exercising enhanced powers under section 30 of the Code of
Criminal Procedure.

11. The Honourable Supreme Court discussed this issue in

great detail in the case titled “Muhammad Sadiq v. The State
and another”(PLD 1971 SC 713) wherein it has been held as
under:-

“While it is the general practice to try the counter cases

side by side by the same court till their conclusion and to
pronounce judgment in each simultaneously, it cannot be
said that this is an absolute rule to be adhered to strictly in
every case. The special facts and circumstance of a
particular case may warrant a different procedure for the
ends of justice…..

A Magistrate, before whom a counter case is pending,

being inferior to the court of Session should normally await
the decision of that Court.”

12. Facts of the matter in this case were that one case was
being tried by the Court of Sessions and its counter case was
pending in the Court of Sub-Divisional Magistrate, Liaqatpur at
Camp Khanpur. The High Court in revision ordered to stay the
pronouncement by the learned Sessions Judge and desired that
Crl.Revision No.45 of 2025

both cases be tried side by side to avoid conflict. The Supreme

Court of Pakistan permitted Court of Sessions to pronounce
judgment and permitted not to wait for the conclusion of the
Magisterial Trial.
13. This judgment was followed in “Khair Din v. Inayat
and another” (1974 SCMR 140) where the circumstances
were the same as one case was pending before a Magistrate
and the murder case was being tried in the court of Sessions.
The High Court relied on Muhammad Sadiq's case and
directed that Magistrate should wait for the conclusion of
Sessions case.
14. This Court in “Rafaqat Ali v. Hidayat Ali and others”
(1986 PCr.LJ 989) where an argument was raised that trial of
the two cases in different Courts may result in conflicting
decisions is no ground for transfer of the complaint case from
the Court of Magistrate and it was observed that: -
"It is a matter of common experience that in a case of
fight between two parties, it is not always easy for
the police to find out during the investigation as to
which of the two versions, given by the rival parties,
is correct. The police in such cases prosecute
members of both the parties and places different
versions and evidence in support thereof before the
Court. Where those counter cases are exclusively
triable by one Court, the trial is held by that Court,
though the trials are held separately and the cases
are disposed of by writing separate judgments.
Chapter IV of the High Court Rules and Orders,
Volume III contains instructions which the Courts
are required to follow in the trial of cross cases.
Difficulty, however arises where cross cases are not
exclusively triable by one Court, as for instance, one
case may be exclusively triable by a 1st Class
Magistrate or a Magistrate empowered under section
30 of the Code of Criminal Procedure. In such case,
trials are sometimes held separately by the Courts
competent to try these cases.

15. It may be advantageous to refer to some cases decided by

our courts following the Noor Elahi’s case. In Syed
Muhammad Hussain Shah v. Abdul Hamid and 5 others
(1981 SCMR 361), the Supreme Court of Pakistan upheld the
Crl.Revision No.45 of 2025

High Court’s decision, following Noor Elahi’s case and held

that “where cross-cases arise out of the same incident but
involve materially different allegations, different sets of
accused, and different versions of events, both cases cannot be
tried jointly under section 239 of the Criminal Procedure Code.
In such circumstances, the complaint case- which is typically
filed after the police challan should be taken up for trial first”.
In Mumtaz and 3 others v. Mansoor Ahmad and another
(1984 SCMR 221) by following the procedure outlined in Noor
Elahi v. the State (PLD 1966 SC 708), the Apex Court
observed that when there are parallel proceedings of a police
challan case and a private complaint arising from the same
incident involving the same accused and allegations, but the
police have added or substituted some accused in their report
who are not mentioned in the complaint, the proper procedure is
to try the private complaint case first. In Karim Bakhsh v.
Zulfiqar and 4 others (1997 SCR 334), the Supreme Court of
Pakistan held that “the complaint case should be tried first does
not apply rigidly to all cases and is not a declaration of law. It
should only be followed when facts justify it, especially to avoid
prejudice”.
16. From the above survey of case laws it is clear that
Magisterial trial cannot take precedence over Sessions trial and
has have to wait for the conclusion of the later or there are a few
instances when Magisterial trials have also been transferred to
the Court of Sessions.
17. So above analysis clearly reveals that trial court can
certainly summon the record and only pre-condition to invoke
the Section 94 Cr.P.C is that the court is to be satisfied
production of documents or thing which is necessary for just
decision of the case. Moreover, scope of section 94 Cr.P.C is
very wide 2 and word whenever suggests that the court could
exercise powers conferred to it at any stage or inquiry or trial. It
2
Muhammad Asif Ali Usama v. The State and 2 others ( 2022 P Cr.LJ 59)
Crl.Revision No.45 of 2025

is not the case of the petitioner that the record so summoned by

the learned trial court is not necessary for determination of the
trial. Moreover, relying upon case laws titled as “Muhammad
Sadiq v. The State and another”(PLD 1971 SC 713) and
“Khair Din v. Inayat and another” (1974 SCMR 140) that
trial of sessions would complete and during the interregnum the
trial of the counter case pending before the learned magisterial
court would await the decision of the sessions trial.
18. In view of the above, no interference is required. The
Criminal Revision in hand is dismissed in the above terms.

(Ch. Sultan Mahmood)

Judge

M.Shahzad/*

Announced in open court on______________

Judge

Approved for Reporting

Judge