' ANWAR-UL-HAQ PANNU N, J.--- Through thii criminal revision petition the petitioner, complainant has sought setting aside the order, dated 3-4-2009 passed by learned Additional Sessions Judge, Sahiwal whereby the learned trial Court while allowing application of Mst. Farzana Bibi the petitioner/complainant has been ordered to have been given up and debarred from appearing as witness of the prosecution.
2. Briefly stated the facts of the case are that on the complaint of the petitioner, a criminal case F.I.R. No,47 of 2008, dated 20-2-2008 regarding the murder of his nephew Muhammad Imran son of Boota, has been registered against Shahid Abbas and others. The occurrence was witnessed by Fateh Jhang and Muhammad Rafique P.Ws. After usual investigation of the case the accused have been sent up to Court to face trial, but no witness of prosecution has been examined so far. On 31- 1-2009 Fateh Sher complainant/petitioner moved an application through his counsel, stating therein that one of the witnesses, namely, Muhammad Rafique has since been won-over by the accused, therefore, while accepting his application the permission may be granted to give up the said P.W. Another application was also moved by Mst. Farzana Bibi, the mother of Muhammad Imran deceased wherein she made a request that being legal heirs of the deceased, she may be allowed to give up the complainant as he has connived with the accused party. The learned trial Court vide his consolidated order dated 3-4-2009 dismissed the application of the petitioner but, while accepting the application of Mst. Farzana Bibi, the prosecution was allowed to give up the complainant, debarring complainant from appearing in the Court as a prosecution witness.
3. Learned counsel for the petitioner submits that admittedly the petitioner being complainant of the case had set the machinery of law into motion, his evidence is very pivotal and material for prosecution and decision of case, therefore, the impugned order whereby application of Mst.
Farzana Bibi has been allowed, debarring petitioner from appearing as a prosecution witness in the case would cause a serious prejudice to prosecution's case. It is also added that the learned trial Judge has allowed the application while passing the impugned order on the basis of unfounded apprehensions voiced by Mst. Farzana Bibi. It is also added that the application of the petitioner, has also been illegally turned down by the learned trial Judge wherein the petitioner made a request, for giving up Muhammad Rafique, an eye-witness of the occurrence and debarring him from appearing in Court as a prosecution witness as having been won-over by the accused. The learned counsel has relied upon Muhammad Waseem alias Kalu v. The State 2006 PCr.LJ 364, to contend that under the Islamic dispensation of justice the Public Prosecutor cannot be allowed to enjoy unhindered powers for moving application for giving up any of the P. Ws. On the basis of his whims. It is also added that the trial Court itself has vast power for adjudging the basis on which some application for giving up a P.W. Is moved but the learned trial Judge without adverting to this aspect of the case dismissed the application of the petitioner and had allowed the application of respondent through the impugned order which is not sustainable in the eye of law.
4. On the other hand learned D.P.-G. States that since the Public Prosecutor has been designated as incharge of the prosecution under the law in a trial, therefore, he while exercising his lawful discretion moved the said application, and the learned trial Court while recognizing his discretion has rightly allowed the application of Mst. Farzana Bibi moved through the Public Prosecutor.
5. Heard. Record perused.
6. Chapter XXXVIII "of Public Prosecutor" of Criminal Procedure Code, 1898 contains various provisions relating to power of appointment, "authority and functions, of a Public Prosecutor". The perusal of section 493, Cr.P.C. Reveals that a Public Prosecutor 4pointed under section 492 by the Provincial Government has the authority to appear and plead in the Courts in any of the case under his charge which is under inquiry, trial or appeal before any Court and any private counsel can only conduct the prosecution under his directions. He can also make a request for withdrawal of a case, pending trial being representative of the Provincial Government. The Prosecutor besides being responsible for conducting prosecution of case entrusted to him is also empower to choose which witnesses are to be produced in a trial and which to be given up being unnecessary of having been won-over but in making this selection he must act with great responsibility. The provision although do not give, expressly the authority, to prosecutor for moving application before the Court in order to seek permission for giving up a witness but are implied being incharge of the prosecution. He thus, is not the sole Arbitrator rather his request is always, subject to the discretion of Court, as it is only the Court, which can decide the fate of such request on the basis of its reasonableness keeping in view, the ends -of justice. The Court cannot be expected to sit as a silent spectator even on notice that the non-production of certain witnesses is likely to result in miscarriage of justice. The request made by a Public Prosecutor for giving up a witness as having been won-over by accused or being unnecessary is not unqualified rather the same is always subject to the discretion of the Court. The Court while passing an order for refusing or accepting the request of the Prosecutor has also to take into consideration the likelihood of causing of prejudice to any party, the importance of the evidence of the witness for the just decision of the case. While doing so the Courts are also expected to take into consideration. Article 150 Qanun-e- Shahadat Order (Presidential Order 10 of 1984), which contemplates and postulates that a Court is empowered to allow a party to cross-examine its own witness when he stands in the situation which makes him adverse to the party desiring his testimony. This power of the Court is also meant for catering the situation where the Court feels that any witness has taken a somersault and' had turned hostile for his extraneous, considerations. The Courts have to assess the propriety and genuineness of the request of the Prosecutor keeping in view the material brought before it in the facts and circumstances of the case. The matter solely vests in the discretion of the Court, which has to be exercised keeping in view that the Courts always inspire to find that witness tells the truth and no prejudice should be caused to either of the party to the trial, for achieving the ends of justice and just decision of the case in the instant case it has been noticed that the petitioner moved an application seeking permission from the Court for giving up Muhammad Rafique an eye-witness, cited in the F.I.R. Which was disallowed by the Court and, on the application of Mst.
Farzana Bibi, the petitioner, who lodged the F.I.R. Of the case had been allowed to be given up by the learned trial Court through the impugned order which has created an anomaly. If the complainant of the case is not allowed to depose before the Court there is a serious likelihood of causing of prejudice to the case of prosecution. The petitioner moved the application showing his apprehension regarding Muhammad Rafique P.W. Whose statement under section 161, Cr.P.C.
Stands recorded by the Investigating Officer that he had connived with other side. Both the P.Ws. If they appear in Court, and depose against their own party can be cross-examined by the Public Prosecutor or by the complainant. Counsel, under the directions of Prosecutor subject to permission of Court, as mandated under Article 150 of the Qanun-eShahadat Order and the credibility of any of the witness, can be shaken, as the Court has even the power to draw inference from the evidence of a hostile witness; therefore, it is held that the learned Additional Sessions Judge while passing the impugned order has railed in adverting to the serious implications which can consequently arise on the basis of impugned order. The witnesses have yet to appear in the Court and in case any of the witnesses turns hostile and deposes against the interest of its party the concerned party shall have a right to cross-examine the said witness. Even the Court can ask some appropriate questions to the witnesses for satisfying itself in order to adjudge and assess his truthfulness, veracity or falsity. It is further observed that a person legally bound to depose his knowledge about a fact in issue within his knowledge, still can be taken to task if the trial Court feels that the said witness is making deliberate concealment and is not speaking the truth or is trying to conceal something with some tainted intention or on account of certain extraneous considerations, therefore, it is, therefore, observed, while setting aside the impugned order, dated 3-4-2009 passed by the learned trial Court that the Court shall also exercise its jurisdiction, while examining the P.Ws. In the Court invoking all the relevant provisions of law for coming to the just decision of the case.
8. For what has been discussed hereinabove the impugned order, dated 3-4-2009 passed by Additional Sessions Judge the application of respondent No,2 is set aside as having been passed without due application of judicial mind and without considering the implications thereof which can arise out of the impugned order, consequently, this criminal revision petition is allowed.