GULZAR HOSSAIN Versus ADDITIONAL SESSIONS JUDGE, JHANG and 4 others
This criminal revision petition challenged an order of the Additional Sessions Judge, Jhang, which dismissed the petitioner's application to give up certain police officers as prosecution witnesses in a murder trial. The core legal question was whether a complainant in a case instituted on a police report has the absolute prerogative to determine which witnesses are produced for the prosecution, specifically regarding the interpretation of Section 265-F(2) of the Code of Criminal Procedure 1898. The Court dismissed the petition, holding that in cases initiated upon a police report, the Public Prosecutor, not the complainant, has the authority to decide which witnesses to produce. The Court clarified that while Section 265-F(2) of the Code of Criminal Procedure 1898 allows the complainant to name witnesses in private complaint cases, in police report cases, the Public Prosecutor is responsible for conducting the prosecution and selecting witnesses to ensure all material facts are brought before the court for a just decision. Consequently, the complainant cannot unilaterally exclude witnesses deemed necessary by the prosecution.
- In a criminal trial initiated upon a police report, does the complainant have the legal right to unilaterally give up prosecution witnesses?
- Does Section 265-F(2) of the Code of Criminal Procedure 1898 grant the complainant the same power to select witnesses in police report cases as it does in private complaint cases?
- Who holds the authority to determine the list of prosecution witnesses in a trial before a Court of Session initiated upon a police report?
- Section 302, Pakistan Penal Code 1860
- Section 109, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 173, Code of Criminal Procedure 1898
- Section 265-A, Code of Criminal Procedure 1898
- Section 265-C, Code of Criminal Procedure 1898
- Section 265-F(2), Code of Criminal Procedure 1898
ORDER
The facts leading to the institution of this petition are that Muhammad Anwar, Bahawal Sher and Noor Muhammad respondents Nos.2 to 4 are facing trial in the case F.I. R. No.197 of 1998 at Police Station Langarana, District Jhang under sections 302, 109, 148 and 149, P.P.C. registered on the complaint of the petitioner before learned Additional Sessions Judge, Jhang. The petitioner in the course of trial submitted an application to give up Ishtiaq Rasool, S.‑I., Muhammad Yasin, Inspector and Umar Hayat, Inspector, S.H.O. of Police Station Langarana as prosecution witnesses who had also carried out some investigations in this case and whose names figured as witnesses in Column No.6 of the report under section 173, Cr.P.C. The D.D.A. conducting the prosecution of the case did not support the petitioner's application and consequently after hearing the complainant and the D.D.A. vide impugned order, dated 13‑10‑2003 the learned Additional Sessions Judge, Jhang dismissed the petitioner's application seeking to give up the said three witnesses. Feeling aggrieved by the same this petition has been filed.
2. It has been mainly argued on behalf of the petitioner that the learned trial Court has rejected the petitioner's application by exclusively considering the provision of section 265‑A, Cr.P.C. without adverting to the provision of section 265‑F(2), Cr.P.C. which stipulates that while recording the prosecution evidence the Court shall ascertain from the Public Prosecutor or as the case may be from the complainant the names of any person likely to be acquainted with the facts of the case and are able to give evidence for the prosecution and shall summon such person to give evidence before it and thus, under this provision it is prerogative of the complainant, who.is petitioner, to name the persons who are to be produced as prosecution witnesses.
3. Chapter 12‑A of Cr.P.C. commencing from 265‑A to 265‑N deals with the trial before the High Court and the Court of Sessions. These trials include on complaints and as well as on police report under section 173, Cr.P.C. Section 265‑C, Part I stipulates the supply of statements and documents to be given to the accused in their trials on police report under section 173, Cr.P.C. whereas section 265‑C, Part II stipulates the procedure to be followed in cases instituted by a private complaint. Section 265‑F(2),'Cr.P.C., therefore, is applicable to the trial of cases instituted on private complaint and as well as on police report under section 173., Cr.P.C. The present case has been instituted against the respondents on a police report and section 265‑A stipulates that in every trial before a Court of Session initiated upon a police report the prosecution shall be conducted by a Public Prosecutor. Under section,265‑F(2) the Court shall ascertain from the Public Prosecutor or as the case may be from the complainant the names of persons who are to be produced as the prosecution witnesses. Section 265‑A and section 265‑F(2) read together will, therefore, mean that in cases instituted upon police: report the Court shall ascertain from the Public Prosecutor the names of persons whom he wishes to produce as prosecution witnesses and shall summon said persons to give evidence whereas the word complainant figuring in section 265‑F(2) ibid connotes to the complainant in the complaint case, therefore, only in case instituted upon private complaint it is prerogative of the complainant to name the witnesses whom he would intend to produce whereas in the case of cases instituted upon police report under section 173 (ibid) it is right of the Public Prosecutor to name the persons who are to be produced as prosecution witnesses. The complainant through his application intended to give up Investigating Officers as P.Ws. whom the learned D.D.A considered necessary to be produced in order to bring the entire facts and material on record and not to withhold some part of it, to facilitate the trial Court to reach a just decision, therefore, the trial Court had rightly dismissed the petitioner's application and there is no force in this petition. It is dismissed in limine.
N.H.Q./G‑346/L Revision petition dismissed.