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Criminal Miscellaneous No. 458-M of 1983, decided on 31st July, 1983.
-- S. 6 (1) read with Penal Code (XLV of 1860), S. 409-Case conducting of-Public Prosecutor already appointed in Court of Special Judge to conduct prosecution of case-Counsel for complain ant, held, can assist Public Prosecutor in conduct of case but cannot act independently of Public Prosecutor unless so appointed for case in supersession of Public Prosecutor already appointed. [Investigation].
-- Ss. 561-A & 156-Direction for re-investigation-Held, High Court has no inherent power under S. 561-A to interfere with statu tory right of police to investigate cognizable offence.-[ Investigation].
Muhammad Ashraf Falahi for Petitioner.
Date of hearing: 31st July, 1984.
This is an application under section 561-A, Cr. P. C.
2. A case Re. State v. Mumtaz and others under section 409, P. P. C. is pending in the Court of Special Judge (Central), Lahore. National Bank of Pakistan is the complainant in that case. The com plainant filed an application through Mr. M. A. Falahi, Advocate, for the recall and re-examination of certain prosecution witnesses. The application was opposed mainly on the ground that the learned counsel for the com plainant Bank had no locus standi to file the application as the prosecution was being conducted by the Public Prosecutor. The learned trial Court upheld the objection but at the same time considered the application or merits. The application was dismissed but the trial Court sun motu re. summoned one of the prosecution witnesses under section 540, Cr. P. C. for the just decision of the case.
3. The petitioner in this application has sought two reliefs, firstly, that it may be held that the counsel for the complainant had a right to make an application for recalling of the prosecution witnesses and, secondly, a direction be issued for the co- investigation of the case to secure the ends of justice.
4. As regards the first relief, section 6 (1) of the Pakistan Criminal Law Amendment Act, 1958, provides that a person conducting prosecution before the Court of a Special Judge shall be deemed to be a Public Pro secutor. It is admitted that a Public Prosecutor has already been appointed' in the Court of the Special Judge to conduct prosecution of this case. In view of this fact, the counsel for the complainant can assist the Public Prosecutor in the conduct of the case but he cannot act independently of the Public Prosecutor unless he is appointed as a Public Prosecutor for this case in supersession of the Public Prosecutor already appointed.
5. In so far as the second relief is concerned, there is no substantial, ground for granting the same as this Court has no inherent powers under section 561-A, Cr. P. C. to interfere with the statutory right of the police re to investigate cognizable offences.
6. For the foregoing reasons, this appreciation is dismissed in limine.
M. A. K. Petition dismissed
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