1981 PLP 294 (SCMR)

ASLAM RIAZ HUSSAIN, J.

This petition is directed against the judgment of a learned Single Judge of the High Court, dated the 30th June, 1979, in a revision petition, whereby the acquittal of the petitioners was set aside and their retrial for offences under sections 148 and 302/307/324/323/149, P. P. C. was ordered-

2. The facts giving rise to this petition are briefly that the 15 petitioners were tried for the murder of Ahmad Khan and for the attempted murder of Rashid, Abdus Sattar, Ghulam Qadir, Abbad Khan and Ashiq Hussain P. Ws. and causing injuries to them and 4 others. At the trial the Assistant Public Prosecutor produced only four out of the 10 eye-witnesses mentioned in the F. I. R., namely, Ashiq Hussain, Abdus Sattar, Munshi Khan and Ghulam Qadir. None of them supported the prosecution case and were declared hostile. The Assistant Public Prosecutor then gave up the remaining 6 eye-witnesses (4 of whom, namely, Abdul Shakoor, Abbad Khan, Irshad Khan and Rashid Ahmad had been injured during the incident), stating that they had been won over. He also gave up Talib Hussain and Shaukat Ali the recovery witnesses as having been won over and the formal witness as unnecessary and closed the prosecution case. The learned trial Judge thereafter recorded the statement of the accused under section 342, Cr. P. C., adjourned the case for announcement of judgment till 1-00 p.m. and later acquitted all accused.

3. Being aggrieved, Irshad Khan son of the deceased filed a revision petition before the High Court against the acquittal of the accused (peti tioners herein). The learned Judge accepted the same, vide the impugned judgment dated 30th June, 1979; set aside the acquittal of the petitioners and ordered their retrial. Hence the present petition.

4. The learned counsel for the petitioners urged before us that it is the Public Prosecutor who is Incharge of conducting the case on behalf of the prosecution and as such after seeing the performance of the four witnesses produced by him at the trial he had good reason for giving us the remaining eye-witnesses who had also been won over and would not have supported the prosecution case, if produced. He submitted further that in any case the retrial is likely to be an exercise in futility because it is not certain whether the eye-witnesses giving up the trial as won over would support the prosecution case.

5. We are not impressed by these contentions. As observed by the learned Judge in Chamber, from the documents placed on the record before him, it appears that the four eye-witnesses produced at the trial had refrained from supporting the prosecution case because of a compromise between the parties as a result of which the land the dispute over which had led to the murder, was got transferred by the accused party in favour of Ashiq Hussain P. W. 1 and his father Munshi Khan P. W:

3. These witnesses then influenced Abdus Sattar P. W. 2 (who is the maternal nephew of Munshi Khan P. W.) and Ghulam Qadir P. W. 4 who belongs to the biradari of Munshi Khan and hails from the same village in India as Munshi' Khan.

6. As for the remaining six eye-witnesses, Irshad Ahmad Khan, the petitioner in the revision petition before the High Court, produced the affidavits wherein they had sworn that they had witnessed the incident; that they were present in the Court-premises on the relevant day and if the had been produced at the trial they would have supported the prosecution case and, further, that they were willing to support the same even now.

7. No doubt the Public Prosecutor is responsible for conducting the prosecution of the case entrusted to him and is empowered to choose which witnesses to produce at the trial and which to give up as unnecessary or as having been won over. But in making this selection he must act with great care and responsibility. The Court cannot, however, be expected to sit as a silent spectator even when it notices that the non-production of certain witnesses is likely to result in miscarriage of justice. As rightly observed by the learned Judge in Chamber, every Judge has inherent powers to ensure the justice is done and that for this purpose he can require the Public Prosecutor to ascertain whether the witnesses sought to be given up are in fact not prepared to support the prosecution case. In proper cases when he smells foul play the learned trial Judge would not only be justified, but would in fact be duty bound, in the interest of justice, to ascertain this fact himself directly from the witnesses.

8. In the present case there was enough material before the learned Judge in Chamber to come to the conclusion that in giving up all the remaining prosecution witnesses (including the 4 injured and 2 independent eye-witnesses) the Public Prosecutor had acted rather recklessly and perhaps at the instigation of, if not in collusion with, persons interested in stifling the prosecution case. The affidavits filed by the six eye-witnesses who were not produced at the trial go to show that they had not in fact been won over at all and were (and still are) willing to support the prosecution version. The learned High Court Judge was, therefore justified, in the circumstances of this case, in setting aside the acquittal of the petitioners and ordering their retrial. We see no merit in this petition, which is consequently dismissed. Petition dismissed.