P L D 2026 Balochistan 73 (PLP)

GUL HASSAN TAREEN, J.

This criminal revision petition assails an order dated 21 February 2026 of the learned Additional Sessions Judge, Pishin, whereby an application made by the petitioner under section 540, the Code of Criminal Procedure,1898 ( Code ), to recall Sirajuddin (PW-7) for the purpose of declaring him hostile and to provide an opportunity to the petitioner to cross- examine him, was dismissed.

2. Mr. Zahid Agha, the learned counsel for the petitioner submitted that Siraj-ud-Din was the eyewitness of a murderous assault on the victim/deceased, Bilal Ahmed. He argued that in his 161 s Code statement, Siraj-ud-Din attributed the role of assault to the respondent and his co-accused; however, when he appeared before the Trial Court, he exonerated them and stated that he did not witness the incident. Thus, the learned Assistant District Public Prosecutor ( the Prosecutor ) should ought to have requested the Trial Court to declare him as hostile and cross-examine the said witness. He further submitted that he was counsel for the complainant and that, when the said witness was being examined, he (the counsel) was on his way to the Trial Court; thus, could not reach in time. However, on same day, he made an application to the Trial Court for recalling this witness so that he could be declared as hostile and cross-examined; however, vide the impugned order, the learned Trial Judge dismissed the petitioner s application without assigning any legal reasons and consequently committed illegality.

3. I have heard and gone through the record.

4. The complainant made an application to the Officer-in-Charge, Levies Station Barshore for lodging an FIR against the accused named in the application. According to the contents of the application, the four accused assaulted Muhammad Bilal and caused him fatal injuries. The incident was witnessed by Siraj-u-Din. The Investigation Officer recorded the statement of Siraj-u-Din under section 161, the Code. He appeared as Prosecution Witness

7. He was examined-in-chief by the learned prosecutor. When the examination-in-chief of the witness was recorded, he was cross-examined by the defense learned counsel. After examining the witness, the trial was adjourned, after which, the petitioner s learned counsel made an application under section 540, the Code. Prayer clause of the application is reproduced hereunder: It is therefore requested from this Hon ble Court may kindly recall the PW Sirajuddin and further requested to declare him as hostile and made dishonest improvement and provide opportunity to the complainant to cross-examination and legal action against him in the interest of justice .[sic] The learned Trial Judge, vide order dated 21 February 2026, dismissed the application.

5. The following two points require consideration in this revision petition: a. who is the master of the trial in criminal cases to drive the trial on behalf of the prosecution? b. once the examination of a witness is completed, then such witness may be recalled to be declared hostile? Point for determination (a):

6. The Chapter XXXVIII, the Code consists of four sections (492 to 495). Under section 492, the Provincial Government may appoint officers to be called, Public Prosecutors . Section 493, permits the Public Prosecutor to appear and plead before any Court in which any case of which he has charged 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. Any Public Prosecutor may, with the consent of the Court, before the judgment is pronounced, withdraw from the prosecution of any person under section

494. And under section 495, any Magistrate inquiring into or trying any case may permit the prosecution to be conducted by any person. Regarding the decision on point (a), section 493, the Code is relevant. The relevant in the section reads as: , 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 . Section 493, authorizes the Public Prosecutor alone to conduct the prosecution, and if the complainant engages any private counsel, the said counsel is required to act under the directions of the Public Prosecutor. Though, the complainant is a necessary party in cases involving murder and hurt to body, yet, this does not make him incharge of the prosecution. Section 265-A, the Code contains a mandatory command that, in every trial before a Court of Session, initiated upon a police report, the prosecution shall be conducted by the Public Prosecutor . Thus, the Public Prosecutor is the sole authority to prosecute cases against accused/s in the criminal cases. Any counsel privately engaged by a complainant may assist the Public Prosecutor who remains subordinate to him. The Public Prosecutor has the authority to, give up any witness or request the Court to allow him to put to his own witness such questions as might be put in cross-examination by the adverse party. The provision of section 493 is mandatory; consequently, a private counsel cannot be appointed a Public Prosecutor, and he must act under the direction of the Public Prosecutor. Therefore, the Public Prosecutor is the master of trial in criminal cases to drive the trial and any private counsel may only assist him and conduct the prosecution under his directions.

7. In this case, the learned prosecutor was conducting the prosecution. When PW-7 appeared before the Court, he examined him in chief, and the prosecutor held the sole authority to decide whether or not to request the learned Trial Judge to allow him to cross-examine the witness. The presence of complainant s counsel at that time was not a relevant factor. In his application to re-call the PW-7, complainant s counsel mentioned that he could not reach the Court when the witness was being examined because he was on his way to the Court. Even had he been present during the examination in chief of the witness, he would have acted under the direction of the prosecutor. Thus, the petitioner s learned counsel s contention that the witness should have been examined in his presence and under his direction, or that the witness should have been declared hostile, is without any legal substance in view of the provisions of sections 265-A and 493, the Code. Point for determination (b):

8. Article 133 sub-article (1), the Qanun-e-Shahadat Order-10, 1984 ( Q.S.O ) prescribes the order of examination of a witness. Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined then (if the party calling him so desires), re-examined. The examination-in-chief and re-examination of a witness can only be done by the party who called him, and the cross-examination (is done) by the adverse party. However, the party who called a witness may cross-examine their own witness with the leave of the Court under Article 150, the Q.S.O, when the Court is satisfied that the statement of the witness exhibits an element of hostility or that he has resiled from a material statement which he made before the investigation agency or where the Court is satisfied that the witness is not speaking the truth and it is necessary to cross-examine him to unearth the truth. The act of cross-examination is always performed by the adverse party, however, a party may cross-examine their own witness under Article 150, the Q.S.O. After close of cross-examination, the party who called a witness may re-examine their own witness to explain any matter referred to in cross-examination; however, such party cannot cross-examine its own witness subsequent to the cross-examination by the adverse party. Thus, when a witness is examined in chief, the party who called him may request the Court to allow him to cross-examine their own witness under Article 150, the Q.S.O for, under this article, the Court may permit to put any question to a witness which might be put in cross-examination by the adverse party. In this regard, reliance may be placed on the case law reported as State of Bihar v. Lalu Prasad alias Lalu Prasad Yadav (AIR 2002 SC 2432). Relevant in the case law read as:

5. Nonetheless a discretion has been vested with the Court whether to grant the permission or not. Normally when the public prosecutor request for permission to put cross question to a witness called by him the Court used to grant it. Here if the public prosecutor had sought permission at the end of the chief-examination itself the trial Court would have no good reason for declining the permission sought for. But the public prosecutor did not do so at the stage. That is precisely the reason why the trial Judge declined to exercise his discretion when the permission was sought for after the cross-examination was over. The witness has said only the detail in cross-examination regarding the matter which he said in the chief-examination itself. It would have been a different position if the witness stuck to his version he was expected to say by the party who called the witness, in the examination-in-chief, but he showed propensity to favour the adverse party only in cross-examination. In such case the party who called him has a legitimate right to put cross questions to the witness. But if he resiled from his expected stand even in chief-examination the permission to put cross questions should have been sought then . For the foregoing reasons, once the examination (examination-in-chief and cross-examination) of a witness is completed, then such witness cannot be recalled under section 540, the Code to be declared him hostile. The impugned order is well reasoned in view of afore discussion which, therefore, calls no interference by this Court. As a result, I dismiss this criminal revision petition in limine. JK/23/Bal. Revision dismissed.