1985 PLP 1264 (SCMR)

2. Through this clarification the petitioner wants this Court to hold that in cases under the Pakistan Criminal Law Amendment Act, 1958, initiated by a private complainant the complainant's counsel should be regarded as a Public Prosecutor. For this contention he relied on the provisions of section 244, Cr. P.C. which reads as follows:‑ "244. (1) If the Magistrate does not convict the accused under the preceding section or if the accused does not make any such admission the Magistrate shall proceed to hear the complainant (if an ), and take all the evidence as ma be ‑produced in support of the prosecution, also to hear the accused and take ell such evidence as he produces in his defence. (2) (3) The petitioner's counsel urged that the underlined portion of section 244, Cr.P.C. indicates that the complainant must be heard during trial before the accused can be convicted. He then tried to argue that the word 'hear' in this section implies that the complainant can either be heard personally or through his counsel. In other words according to the petitioner's counsel, the complainant or his counsel can address arguments in the case.

3. We are afraid this contention is wholly misconceived and we cannot bring ourselves to agree with it. Section 244, Cr.P.C. occurs in Chapter XX of the Code, which relates to the procedure to be adopted for trial in summons cases. Section 243, Cr.P.C. provides that conviction of an accused can be based only on the admission of an accused person, while section 244, Cr.P.C. provides that in case the Court does not convict the accused on his admission, or when no admission is made by him then he must 'hear' the complainant, as well as the accused and examine all the witnesses produced by them. No doubt the word used in connection with the complainant is that the Magistrate shall hear him, but in the context of this section it does not mean that he shall be entitled to engage a counsel who may be 'heard' instead of the complainant. It is clear from a reading of the entire section that what it meant is that the complainant and the accused shall also be required to make statements, before their witnesses are examined by the trial Court.

4. Learned counsel for the petitioner cited Medichetty Ramakishtia and others v. The State of Andra Pradesh A I R 1959 A P 659, Hyder Bux Jafferi v. The Crown P L D 1951 Sind 29; and Mahbub Khan v. Emperor I L R 1945 Nag.

419. But all these cases relate to section 493, Cr.P.C. This section occurs in Chapter XXXVIII of the Cr.P.C. which has been omitted from the procedure to be adopted in the trial of cases under the Pakistan Criminal Law Amendment Act, 1958. The said judgments are, therefore, not relevant. He then cited Imranullah v. The Crown P L D 1954 .F C 123; in which the meaning of the word hearing as appearing in section 423, Cr.P.C. has been discussed. We are, however, concerned with the meaning of the said word as appearing in section 244, Cr.P.C. This authority too is, therefore, not relevant for the purpose of this case.

5. On carefully considering the matter we are of the view that the words 'hear the complainant' in section 244, Cr.P.C. merely means that he too shall be heard at the trial like other witnesses. This view is supported by the following cases:‑ Emperor v. Varadarajulu Naidu A I R 1932 Mad. 25; K.K. Subcier v. K.M.S. Lakshmana Iyer and others A I R 1942 Mad. 452, Kadutha v. Kaseban A I R 1954 T C 439 and Ahmad Nur Karimbhai v. The State A I R 1963 Guj.

221. The petitioner's counsel has not been able to point out any error on the face of the record, nor any clarification is called for As such the application is dismissed. M.I. Application dismissed.