' M.A. ZAFAR, J.---Shoukat Ali, the petitioner has filed this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, assailing the order dated 10.2.2009, passed by the learned Additional Sessions Judge, Faisalabad whereby he allowed the request of the prosecution to examine Yousaf Ali Haral SP, Investigation as Court witness.
2. Learned counsel fore the petitioner submits that name of Yousaf Ali Haral, SP Investigation is mentioned at serial No, 18 in the calander of prosecution witnesses in the challan and thus the order passed by the learned Additional Sessions Judge directing to examine said Yousaf Ali Haral as a Court witness is illegal and unlawful
3. On the other hand, learned DPG while opposing the present petition has supported the impugned order dated 10.2.2009 passed by the learned Additional Sessions Judge, Faisalabad.
4. After hearing the learned counsel for the parties and perusing the record, I have observed that name of Yousaf Ali Haral, SP Investigation was not mentioned in the original challan and after the submission of the challan he conducted some inquiry obviously in violation of the dictum laid down by the Hon'ble Supreme Court of Pakistan in case titled Muhammad Nasir Cheema v. Mazhar Javed and others (PLD 2007 SC 31). Prosecution submitted a supplementary challan in which the name of aforesaid police official is mentioned in the calender of witnesses at serial No,
18. Since, Yousaf Ali Haral, SP Investigation is mentioned in the list of prosecution witnesses, his status will remain as a prosecution witness and prosecution cannot request to the Court to call him as a Court witness. If during the trial while making statement, he does not support the prosecution, the learned Prosecutor will be at liberty to declare him hostile and cross-examine him and even before putting him in a witness-box, prosecution can give up the said witness. In such an eventuality after being given up, defence can examine him as a defence witness but at this stage a witness who is in the list of prosecution witnesses cannot be allowed to change his status and get him examined as a Court witness. It appears that by calling the said police officer as a Court witness, prosecution intends to fill up the lacunas in the prosecution case by putting question during his cross- examination because if some one appears as Court witness, the prosecution as well as defence is art liberty to cross-examine the witnesses. Resultantly, this petition is allowed and the impugned order dated 10.2.2009 passed by the learned Additional Sessions Judge, Faisalabad is set aside.