' This revision petition arises in the following circumstances.
1. Regarding an occurrence which took place on the night between the 21st and 22nd of September 1974, a case under section 382/307, P. P. C. Was registered at 1-40 midnight at Moghalpura Police Station at the instance of Talib Husain against Muhammad Sharif and Muhammad Ismail who were subsequently sent up for trial for an offence under section 307, P. P. C.
' A counter case was also got registered by said Muhammad Ismail at 2-45 p. m. On 23-9-1974 in which he named six persons as accused including said Talib Husain. Police had also challaned and sent up for trial all these six accused.
' Three months later, i,e, on 20-12-1974, one Rehmat Ali, who is respondent No, 1 in the present revision petition, and a real brother of Muhammad Arif deceased, filed a private complaint before the Ilaqa Magistrate pertaining to the same occurrence. In this complaint, he deposed the name of Talib Husain and named the remaining five as the culprits. All these cases were pending before the Inquiry Magistrate when the amendments in the Criminal Procedure Code were enacted and consequently all the three cases were sent to the Court of Session, where now in accordance with the observations made by the Supreme Court of Pakistan in Nur Ilahi v. State (1) the complaint case is proceeding first. Both the parties initially agreed that Sh. Zahurul Haq Advocate, who is appearing for respondent No, 1, may conduct the private complaint in Court. It appears that the petitioners subsequently felt aggrieved and have now filed this revision petition praying that the trial be conducted by the public prosecutor and not by Sh. Zahurul Haq.
2. The precise question that has arisen for determination is whether under the existing law it is only in the Public Prosecutor who can conduct the trial in the Court of Session irrespective of the fact whether the proceedings are initiated on a Police report or a private complaint.
(1) PLD 1966 SC 708 ' The learned counsel for the petitioners has referred to sections 270, 492, 493, and 289 of the unlamented Criminal Procedure Code and the present provisions of the Code contained in section 265-A, 265-C and 265-D, Cr. P. C. The learned counsel for the petitioners, in this regard, has relied upon plenty of case-law including Nur Ilahi v. State, Zafarullah v. The State (1), Malik Asad Khan v.
State (2), In re : Malaril Kottavil Royassam (3), and Gulli Bhagat v. Narain Singh (4).
' The learned counsel for the petitioners, has, during arguments, laid great emphasis on the interpretation of section 265-C of the Criminal Procedure Code, as it is, and the deleted section 289 of the Code, and has emphasized the usage of the word "Prosecutor" in regard to the summing up of the case. The learned counsel further contends that after. The framing of the charge, a trial in a Court of Session becomes a State case, and therefore, even in a private complaint, subsequent to the framing of a charge, the proceedings have to be conducted by the Public Prosecutor and the counsel for the complainant no longer remains in-charge. Of the case.
3. A perusal of all the cases referred to above will show that these are based upon and interpret the law, as it stood prior to the amendments in the Criminal Procedure Code, which were enforced in December, 1975. Section 270 of the Code clearly laid down that in every trial before the Court of Session, the prosecution was to be conducted by the Public Prosecutor. It was, therefore, in elucidation of this basic restricting clause that the superior Courts consistently held that a private complainant's counsel should not even be appointed a Special Public Prosecutor because administration of justice, like the maintenance of law and order is essentially a duty of the State. A counsel holding brief of a party will naturally have a tendency to lay emphasis on the instructions of his client rather than a fair representation of the case before the Court, whereas a Public prosecutor being an impartial person will be predominantly interested in receiving justice rather than securing a conviction.
4. However, existing legal position is altogether different. Chapter XXIII which contains section 270, has been omitted from the Criminal Procedure Code. Therefore, the entire basis of the submission made by the learned counsel completely vanishes. The new corresponding provision is contained in section 265-C. A bare reading of this new provision indicates that this section, now limits the class of trials before a Court of Session, which are to be conducted by the Public Prosecutor to only those which are initiated upon a police report. This provision is a clear departure from the old provision as contained in section 270, Cr. P. C. Which did not create any distinction on the basis of the mode of initiation proceedings and assigned the prosecution to the Public Prosecutor because of the forum of trial only. Therefore, the intention of the Legislature obviously is that the conduct of trials before the Courts of Session by the Public Prosecutor be limited to only such cases as are initiated upon a Police report.
The learned counsel has emphasized that the deleted section 289, only enjoined the "Prosecutor" to sum up his case and then again in section 292 of the old Criminal Procedure Code the expression used was "Prosecutor". The learned counsel contends that the words complainant's counsel" did not exist anywhere and even today, the same position (1)PLD 1974 Lah. 245 (2) 1969 P Cr. L J 1058
(3) 1917 1 C 441 (4) AIR 1924 Pat. 283 ' continues because of the provisions of section 265-C, sub-clause (1) or sub-clause (2). He also says that section 492 or 493 has not been altered. The argument of the learned counsel and the scheme of the present provisions are consistent which the view that 1 have taken. Under the old law conduct of a trial was envisaged only by a Public Prosecutor (section 270, Cr. P. C.) and therefore, reference to the word "Prosecutor" could be deemed to be synonymous with the words "Public Prosecutor". "Public Prosecutor" was defined in section 4. Clause (t) which is to the following effect:- " 'Public Prosecutor' means any person appointed under section 192, and includes any person acting under the directions of a Public Prosecutor and any person conducting a prosecution on behalf of the State in any High Court in the exercise of its original criminal jurisdiction."
However, under the present law when a distinction has been drawn between cases instituted upon a police report and those upon a complaint in writing the usage of the word "Prosecutor" in section 265-C, clauses (1) and (2 will have to be interpreted in its ordinary dictionary meaning or as commonly understood, particularly when the Legislature has not chosen to define B the same. It will, therefore, be deemed to include both i,e, the Public Prosecutor as well as a counsel appointed or nominated by the complainant for prosecuting the case on his behalf. If the same person i,e, Public Prosecutor was envisaged in both the clauses of section 265-C, that is clauses (1) and (2), there was no need to incorporate the word "complainant" in sub-clause (a) of clause (2) of section 265-C in contradistinction to the provisions of section 265-A enjoining the "Public Prosecutor" to conduct trial.
' I also do not see any force in the submission of the learned counsel when he places reliance upon the provisions of reaction 493, Cr. P. C. The Public Prosecutor is authorized to plead or appear, according to section 493, Cr. P. C. "in any case of which he has charge". Obviously. The Public Prosecutor is not in charge of a complaint. Similarly, 1 do not see any point in the submission that after the framing of charge, C every case becomes a State case and, therefore it has to be conducted by the Public Prosecutor.
5. The result is that this revision petition has on force and is dismissed. Petition dismissed.