2004 PLP 913 (YLR)

Ss. 458/319

Criminal Procedure Code (V of 1898), Ss. 265-F & 439

Revision-- Trial Court by means of the impugned order had dismissed the application of the complainant in the case for giving up two prosecution witnesses

Both these witnesses had been cited as prosecution witnesses in the calendar of witnesses-- Complainant seemed to be in league with the accused who had also supported the said application of the complainant--Complainant not being related to deceased, did not appear to be interested in the conviction of the accused and he had no discretion to produce or withhold any witness at the trial, which rested with the Court under S. 265-F(3), Cr. P. C. to accept or reject the request

Trial Court had rightly rejected the application, of the complainant after applying its mind judiciously

Impugned order did not suffer from any illegality or improbability necessitating interference in the revisional jurisdiction-- Revision petition was dismissed in limine accordingly. (b) Criminal Procedure Code (V of 1898)

S. 265-F(3)

Examination of the prosecution witnesses at the trial-- Discretion regarding of the statements of the witnesses lies with the Court which as to be exercised judiciously,

Complainant has no discretion to produce or withhold any witness, but as per subsection (3) of S. 265-F, Cr. P. C., the discretion rests with the Courts to accept or reject such request. Muhammad Khalid Ashraf Khan for Petitioner. Through this revision petition, under sections 435/439, Cr.P.C. order, dated 24-3-2003 passed by the learned trial Court has been challenged whereby application of the petitioner who is complainant in case F.I.R. No. 258, dated 18-6-2001 registered under sections 458/319, P.P.C. at Police Station Fazilpur for giving up two P.Ws has been dismissed. It is claimed that Mst. Sardar Mai mother of Muhammad Javaid deceased also filed a private complaint regarding the same occurrence and evidence of Allah Diwaya and Muhammad Yar has already been recorded therein as P.W.5 and P.W.6 and they supported the private complaint wherein different version was given. Hence, their examination in the challan case will damage the case of the petitioner.

2. Learned counsel for the petitioner contends that the complainant has a right to give up any witness and the trial Court cannot compel for the production of each and every witness if the complainant does not watt to examine them. It is further contended that the evidence of these witnesses as has already been recorded in the private complaint giving different version will not be beneficial to the case of the complainant. It is also contended that the impugned order being illegal and unlawful is liable to be set aside.

3. I have heard the learned counsel for the petitioner and gone through the impugned order. Admittedly Allah Diwaya and Muhammad Yar have been cited as prosecution witnesses to the calendar of witnesses. The petitioner seems to be in league with the accused as the accused have also supported the application of the petitioner, according to the impugned order. The learned trial Court has rightly exercised its power by not accepting the application for giving up of the witnesses. It is the discretion of the Court which has to be exercised judiciously regarding the recording of the statements of the witnesses. It is not the discretion of the complainant to produce or withhold any witness but as per subsection (3) of section 265-F, Cr.P.C. the discretion rests with the Court to accept or reject the request. The learned trial Court has rightly rejected the application of the petitioner on the ground that these witnesses have been cited in the calendar of witnesses. The petitioner who is only a complainant of the case but not related with the deceased and seems not to be interested in the conviction of the accused cannot be given powers to get examined or give up tile witnesses. The learned trial court has applied its mind judiciously. I do not find any illegality or improbability in the impugned order necessitating interference in the revisional jurisdiction.

4. This petition has no merit and is dismissed in limine. N.H.Q./G-304/L Revision petition dismissed.