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Criminal Revision No. 31 of 1987, decided on 2nd March, 1987.

‑‑‑S. 493‑‑Penal Code (XLV of 1860), S. 302/307/148/149‑‑Sessions trial‑ ‑Cross‑examination of defence witness by complainant's counsel with permission of Public Prosecutor is unexceptionable‑‑Special Public Prosecutor permitting complainant's counsel to cross‑examine defence witness on his behalf and cross‑examination was to be done under supervision of Special Public Prosecutor who was incharge of conduct of case‑‑Order of Trial Court, rejecting objections of accused and his counsel that it was only Public Prosecutor who could cross‑examine defence witnesses, held, was neither illegal nor improper‑‑Interference declined by High Court in revisional jurisdiction.

The State v. Mumtaz Ahmad 1984 S C M R 594 ref.

Malik Asad Khan v. The State 1969 P Cr. L J 1058; Mansabdar v. The State P L D 1972 Lah. 182; Rustam Khan and another v. The State 1986 P Cr. L J 440; Vaz v. Emperor 1930 M W N 769 and Ramakistiah v. The State of Andhra Pradesh A I R 1959 Andh. Pra. 659 rel.

M. Asghar Khan Rokhari for Petitioner.

Akhtar Shabir, A.A.‑G. for the State.

Malik Muhammad Khan Awan for the Complainant.

Date of hearing: 21st February, 1987.

This is a revision petition by Zarif Khan, petitioner, for the setting aside of an order of a learned Additional Sessions Judge of Mianwalr, dated 21‑1‑1987.

2. The case in brief is that Zarif Khan, petitioner, and seven others are being tried by an Additional Sessions Judge of Mianwali under section 302/307/148/149, P.P.C. for the double murder of Masih‑ur‑Rehman and Shahnawaz, deceased, attempt on the lives of Muhammad Khan and Fazal‑ur‑Rehman P.Ws. and for' rioting. The prosecution having completed the case, the statements of the accused, including that of the petitioner, were recorded. The accused agreed to produce defence evidence. On 21‑1‑1987 Zarif Khan, petitioner, appeared as D.W.1 in his defence. After the close of his examination‑in‑chief, the Special Public Prosecutor permitted Sh. Muhammad Hanif, Advocate for the complainant, to cross‑examine the said witness. The petitioner objected that the private counsel could not cross‑examine him. Since the Special Public Prosecutor had permitted the complainant's counsel to cross- examine the petitioner, the learned counsel for the accused and the complainant desired to argue the point. Accordingly, arguments were addressed on the point and the learned Additional Sessions Judge, by his order, dated 21‑1‑1987, rejected the objection of the petitioner, holding that the complainant's counsel under the supervision and direction of the Public Prosecutor could conduct the case and examine or cross‑examine any witness. Being aggrieved by the said order, Zarif Khan, petitioner, filed a revision petition against the said order, which is now before me for disposal.

3. On behalf of the petitioner it is submitted that after the enforcement of the Law Reforms Ordinance, by virtue of the inclusion of section 265‑A in the Code of Criminal Procedure, in every trial before a Court of Session initiated upon a police report, the prosecution can only be conducted by a Public Prosecutor and that, therefore, the counsel for the complainant cannot cross‑examine a defence witness and he can only be cross‑examined by the Public Prosecutor and that if the learned complainant's counsel wants special questions to be put to him, the same can be suggested by him to the Special Public Prosecutor, who may, if he so desires, put the same to the witness. In this connection, the learned counsel for the petitioner has cited The State v. Mumtaz Ahmad 1984 S C M R 594.

4. On behalf of the State it is submitted that the amendment brought about in the Code of Criminal Procedure by the Law Reforms Ordinance, 1972, has not materially changed the picture, at least where the police challan case is concerned, and the situation as previously existing remains. In this connection, the learned counsel has cited Malik Asad Khan v. The State 1969 P Cr. L J 1058, Mansabdar v. The State P L D 1972 Lah. 182 and Rustam Khan and another v. The State 1986 PCr.LJ 440.

5. I have heard the arguments of the learned counsel for the petitioner and the State. This is a murder case before a Court of Session initiates upon a police report and not one initiated upon a private complaint. The only question that arises is whether, after the substitution of the new Chapter XXII‑A in the Code of Criminal Procedure by the Criminal Procedure (Amendment) Act, XLIV of 1976, for the earlier Chapter XXII‑A previously added by the Law Reforms Ordinance, 1972, any fresh change has occurred in the law as last laid down in Malik Asad Khan's case (supra) and Mansabdar's case (supra). It is admitted by the learned counsel for the petitioner that under section 493, Cr.P.C. a counsel for the complainant can assist the Special Public Prosecutor in a murder case. If this be so, then the only question that arises is as to what extent can the counsel for the complainant act in a murder case, under the directions of the Special Public Prosecutor. The words 'shall act therein, under his directions', as appearing in section 493, Cr.P.C., have been interpreted in Vaz v. Empror 1930 M W N 769 Ramakistiah v. The State of Andhra Pradesh AIR 1959 Andh. Pra. 659 and Rustam Khan v. State (supra). In al: these three cases, the view has been that the Public Prosecutor always remains incharge of the case, but the private pleader can examine or cross‑examine witnesses under his direction. In Malik Asad Khan's case (supra) the private counsel for the complainant was allowed under section 493, Cr.P.C. to conduct the prosecution case, provided always that the Public Prosecutor continued to remain incharge of the case to issue directions on all important matters, if any arose. In the instant case the Special Public Prosecutor had permitted the complainant's counsel, namely Sh. Muhammad Hanif, Advocate to cross‑examine Zarif Khan D.W. 1 on his behalf. This is clearly recorded in the order of the learned Additional Sessions Judge. It is, therefore, obvious that the cross-examination was to be under the supervision of the said Special Public Prosecutor, who was present and was incharge of the conduct of the case. Though this is not so specifically recorded in the trial Judge's order, it is implied, by virtue of the law already declared, and I am no doubt sure the trial Judge intended accordingly. In this view of the matter, the order of the learned Additional Sessions Judge, dated 21‑1‑1987 rejecting the objections of the petitioner and his learned counsel, is neither illegal nor improper and no interference is called for in the revisional jurisdiction.

6. For the foregoing reasons, there being no merit in this petition, the same is dismissed.

M.Y.H./Z‑7/L Petition dismissed.

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