WAHID BUX BROHI, J. - This is an application for transfer of case No. 173/1999 (State v. Haji Pathan & others) arising out of FIR No.60/1998 registered at P.S. Bin Qasim under Section 365-A/395/343/34, PPC, from the Court of 1st Additional Sessions Judge, Karachi Central to the Court of Sessions Judge, Malir.
2. We have heard Mr. M. Ilyas Khan advocate assisted by Mr. M. Faruq, Mr. Habib Ahmed learned A.A.G, for respondent No.1, M. Tamaz Khan learned counsel for respondents Nos.2 to 7 and Mr. Munir Ahmed Bhatti along with Mr. M. Akbar Khan, learned counsel for the complainant.
3. It is mainly contended by learned counsel for the applicant that the accused person namely the applicant and respondents Nos. 2 to 7, have lost confidence in the learned Presiding Officer of the Court of 1st Additional Sessions Judge, Karachi Central, therefore, the case may be transferred to Malir. It was elaborated that basically the case belongs to Malir and the trial made sufficient progress upto the stage of examination of all the witnesses^before it was transferred to the Court of 1st Additional Sessions Judge, Central Karachi and in the later Court one of the accused persons was examined under section 340(2), Cr.P.C, who was cross-examined by the advocate for complainant. Mr. M. Ilyas Khan pointed out that an objection raised before the Trial Court that within the meaning of Section 493, Cr.P.C, it was only the State Counsel who could cross-examine the witness and the cross-examination by the counsel for complainant was not permissible, was turned down, In continuation of his objection he strenuously argued that under Section 493, Cr.P.C, the Advocate for complainant could act only under the directions of the public prosecutor.
According to him, due to such conduct of Presiding Officer allowing the advocate for complainant to cross-examine the accused, the accused persons do not expect justice, from the said Court.
4. Mr. Munir Ahmed Bhatti leaned counsel for complainant submitted that the complainants counsel had conducted cross-examination on behalf of the State Counsel and such act within the meaning of Section 493, Cr.P.C, was permissible. He relied, in this regard, on the case ZARIF KHAN vs. THE STATE (1987 SCM R 1353). He further argued that mere apprehension in the mind of a party that he would not get justice at the hand of Presiding Officer was not ground for transfer of the case, In this context he sought support from the precedent MUHAMMAD MUNIR vs. THE STATE (2001 P.Cr.L.J.
1650).
5. Mr. Habib Ahmed learned A.A.G, submitted that the trial has almost been concluded and is at the trial has almost been concluded and is at the verge of disposal of the case and only final arguments are to be made. The transfer of case at this stage, is therefore, not justified.
We have carefully considered all these contentions.
For ready reference, the text of Section 493, Cr.P.C, is reproduced below:- 493: Public Prosecutor may plead in all Courts in cases under his charge, Pleaders privately instructed to be under his direction. The public Prosecutor may appear before any Court in which any case of which he has charged is under inquiry, trial or appeal, and it any private person instructs a pleader to prosecute in any Court any person in any such case, the Public Prosecutor shall conduct prosecution, and the pleader so instructed shall act therein, under his directions."
6. Import of this provision with reference to the instant subject-matter, is plain and simple. If any private person or say, the complainant, as is the case herein, engages an advocate the prosecution would be conducted by the Public Prosecutor and the advocate engaged by the complainant/private person would act under the directions of Public Prosecutor. There is no specific restraint as regards the extent to which the complainant's advocate shall act under such directions, In any case, cross-examination of a defence witness by a private pleader on behalf of Public Prosecutor subject to conditions under Section 493, Cr.P.C, is not barred.
7. We have noted that the Public Prosecutor had not cross-examined the witness separately. Mr. M.
Ilyas Khan was of the view that no permission has been placed on record to indicate that the counsel for complainant acted so under the direction of the Public Prosecutor. We are afraid, such permission in writing cannot be read in this section, nor the object of this provision was such.
Direction as mentioned in that section can be issued orally and no legal bar can be imported into the provisions of law in absence of express terms. We are unable to persuade ourselves to agree with Mr. M. Ilyas Khan on this point. Nevertheless, the principle laid down in Zarif Khan's case lends full support to the contention of Mr. Bhatti, In the cited case the view taken by the High Court that although the Public Prosecutor always remains In-charge of the case, a private pleader can examine or cross-examined the witness under his direction, was upheld.
8. Mr. Habib Ahmed learned A.A.G, however, pointed out that during the trial complainant side was always apprehensive of delaying tactics and after due efforts the Court examined all the witnesses, therefore at this stage it will simply be a technicality to transfer the case. He opposed the transfer of the matter. We agree with that there is no reasonable and valid ground for transferring the case and mere apprehension in the mind of party in the above-stated circumstances of the case cannot be accepted as a ground for transfer The application is without merit and is hereby dismissed.