GULZAR HUSSAIN vs ADDITIONAL SESSIONS JUDGE, JHANG and 4 others
This petition was filed against the order of the Additional Sessions Judge, Jhang, who dismissed the complainant's application seeking to give up three police investigating officers cited as prosecution witnesses in a case initiated on a police report (challan) under Section 173 of the Code of Criminal Procedure 1898. The Deputy District Attorney (D.D.A.) conducting the prosecution had opposed the complainant's application. The core legal question was whether a private complainant has the prerogative to give up prosecution witnesses under Section 265-F(2), Cr.P.C. in a case tried before the Court of Session on a police report. The Lahore High Court dismissed the petition in limine, holding that reading Section 265-A and Section 265-F(2), Cr.P.C. together makes it clear that in trials instituted upon a police report, the conduct of the prosecution lies exclusively with the Public Prosecutor. The term 'complainant' in Section 265-F(2) applies strictly to trials arising from private complaints, whereas in state-challan cases, only the Public Prosecutor has the authority to decide which witnesses are to be examined or given up.
- Does a complainant in a trial before the Court of Session instituted upon a police report have the right to abandon or give up prosecution witnesses against the will of the Public Prosecutor?
- How does the word 'complainant' in Section 265-F(2) of the Code of Criminal Procedure 1898 apply to cases initiated on a police report versus private complaints?
- Who possesses the prerogative to determine which prosecution witnesses will be produced in a Sessions trial initiated under Section 173 of the Code of Criminal Procedure 1898?
- Section 109, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 302, 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 behaif 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 com otes 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.