2021 PLP 559 (MLD)

CHAUDHARY KHALID YOUSAF, J.

The captioned criminal revision petition has been directed against order of the Additional District Court of Criminal Jurisdiction Mirpur dated 24.02.2020, whereby, said Court closed the evidence of P.Ws. Nos.2, 3, 13, 14, 21, 24 and 26 on application filed by the privately engaged counsel for complainant.

2. Precise facts forming background of the instant revision petition are that accused-petitioner is facing trial in offences under Sections 147, 148, 149, 302, A.P.C., before Additional District Court of Criminal Jurisdiction Mirpur. During trial, learned private counsel for complainant filed an application for abandonment of the evidence of certain prosecution witnesses, whereas the Additional Public Prosecutor appearing on behalf of the state opposed the said application to the extent of official witnesses. The learned trial Court accepted the application vide its order dated 24.02.2020 and abandoned the evidence of PW's Nos.2, 3, 6, 10, 13, 14, 21, 24 and 26, hence this revision petition.

3. Mr. Khalid Rasheed Chaudhary Advocate, learned counsel for accused-petitioner forcefully argued that the trial Court committed grave illegality of law while passing the impugned order. He submitted that trial Court wrongly abandoned the evidence of prosecution witnesses on the request of privately engaged counsel for complainant without the consent of public prosecutor. Learned Counsel strenuously argued that under section 493, Cr.P.C, being incharge of prosecution it is sole prerogative of public prosecutor to take such decisions. Learned counsel further contended that the learned trial Court was not competent to pass the impugned order as the Additional Public Prosecutor opposed the said application to the extent of official witnesses. Learned counsel emphasized on the point that a cross case of the same occurrence is also under trial, therefore, the complainant with mala fide intention moved the said application just to avoid the cross-examination of the said witnesses and lastly prayed that by accepting the instant revision petition the impugned order may be set-aside. Learned counsel placed his reliance on following case law:- 1981 SCMR 294; PLD 2013 Sindh 214 and PLD 2008 Peshawar 100.

4. Mr. Abdul Wahid Aamir advocate, learned counsel for the complainant while controverting the arguments raised by the learned counsel for accused petitioner, contented that the trial Court passed the impugned order with legal fashion, it is discretion of the prosecution to examine the witnesses of its own choice cited in the calendar of witnesses. He further submitted that prosecution is not bound to produce each and every witness cited in the calendar of witnesses. Learned counsel further contended that accused-petitioner filed the instant revision petition just to prolong the trial as the abandoned prosecution witnesses are also cited in the cross case and they can be examined by the learned counsel for the accused-petitioner in the cross case and lastly prayed for dismissal of the revision petition. Learned counsel placed his reliance on following case law:- 2006 YLR 2178; 2017 PCr.LJ 731 and 1997 PCr.LJ 1727.

5. Mr. Sajid Hanif Qureshi, learned AAG appearing on behalf of the State, owned the arguments advanced by the learned counsel for the petitioner and submitted that evidence of official PWs cannot be closed without the consent of Public Prosecutor.

6. I have heard the learned counsel for the parties as well as learned State counsel, and gone through the record of the case with utmost care.

7. The moot point involved in the instant case is that, who is the incharge of prosecution in a criminal case, whether it is public prosecutor or the privately engaged counsel for complainant. In this regard section 493 provided guidelines. For better appreciation of the matter the relevant section 493, Cr.P.C., is usefully reproduced herein:- "Public Prosecutor may plead in all Courts in cases under his Charge; Pleaders privately instructed to be under his direction. The public prosecutor may appear and plead without any written authority before any Court in which any case of which he has charge is under inquiry, trial or appeal, and if any private person instructs a pleader to prosecute in any Court any person in any such case, the Public Prosecutor shall conduct the prosecution and the pleader so instructed shall act therein, under his directions. " The proposition came under consideration in a case reported as [1969 PCr.LJ 1058]. The relevant portion is usefully reproduced herein:- "It must be remembered that in the prosecution of a criminal case, particularly a case of murder, an Advocate privately engaged is not a proper person to conduct the prosecution, as he would represent the interests of his client and it is above all things essential that in the prosecution on behalf of the State private interests and private feelings, for instance, the desire to wreak vengeance should have no place. Therefore, an Advocate privately engaged to represent a complainant should have no other place than that of one strictly subordinate to an officer who prosecutes on behalf of the State, for the State stand not necessarily for a conviction but for justice." An identical point came under consideration in a case reported as [PLD 2013 Sindh 214], The relevant portion is usefully reproduced herein:- "It. appears from the submissions made by the learned defence counsel, so also State Counsel, that the application for adding the proposed question in statement of accused recorded under section 342, Cr.P.C., was moved without the consent of Public Prosecutor by the counsel engaged by the complainant, who in terms of section 493, Cr.P.C., is incharge of case and any private counsel engaged could only assist the prosecutor thus filing of application, bypassing the authority of Public Prosecutor was against spirit of section 493, Cr.P.C. The impugned order reveals that ADPP appearing for the State has opposed the adding of proposed question in the statement under section 342, Cr.P.C., on the ground that if such question is allowed, the prosecution case may by damaged." From the above cited case law it is crystal clear that under section 493 of Cr.P.C., public prosecutor has a leading role in the prosecution of criminal cases and private counsel for complainant shall act under his instructions. Wisdom of the legislature behind the section 493, Cr.P.C., is to provide the justice by fair trial without favour to either party because the counsel privately engaged on behalf of the complainant would definitely represent interests of his client and paramount consideration before him would be the interests of his client and he will defiantly strive for conviction, whereas the interests of the state are not identical with the interests of a private complainant. The state stands not necessarily for conviction but for justice.

8. Public prosecutor being incharge of the prosecution is responsible for conducting the prosecution of criminal case and is empowered to choose which witnesses to produce or to give up as unnecessary. The privately engaged counsel shall conduct the prosecution under his instructions. In the present case Additional Public Prosecutor opposed the submission made by the learned private counsel for complainant for giving up the witnesses. Written statement of APP is on record. The relevant portion of the statement is reproduced as under:-

9. I have no cavil with the argument of learned counsel for complainant that discretion lies with the prosecution to examine the witnesses and prosecution is not bound to produce each and every witness cited in the calendar of witnesses, but in the instant case the proposition is altogether different. Proposition involved in the present case is that who will lead the prosecution and take such decisions. As discussed in the preceding paras the public prosecutor being incharge prosecution officer alone has the authority to take such decisions. In the present case Additional Public Prosecutor appearing on behalf of the state opposed the submission of learned private counsel for complainant to give up the official witnesses and being incharge of the prosecution, the prosecution witnesses cannot be abandoned without his consent. The case law referred by the learned counsel for respondent No.1 is not applicable in the case in hand due to its distinguishable facts. In view of the above discussion, the impugned order dated 24.02.2020 to the extent of official PWs Nos. 21, 24 and 26 is set-aside and trial Court is hereby directed to summon the said witnesses and record their statements as per law. The instant revision petition is hereby disposed off in the manners indicated above. JK/32/HC (AJ&K) Order accordingly.