This application under section 435/439, Cr. P. C., has been preferred by the applicant/complainant against the order dated 4th May, 1980 of the learned Additional Sessions Judge, Tharparkar at Mirpurkhas, where by be has ordered that the prosecution has to be conducted by the public prosecutor and the complainant's case should proceed first. It is against first part of the order that the complainant is aggrieved and has approached this Court to set aside the same.
2. The brief facts of the case are that the complainant Muhammad Shafi lodged his F. I. R., with the police in the first instance. Since he was not satisfied with the police investigation, he filed a direct complaint under sections 302, 325, 324, 147, 148 & 149, P. P. C. On 10-5-1974 against Mushtaque Ahmed and 8 others. The Court took the cognizance and issued process against all the accused.
The police also challaned the case under section 302, P. P. C. On 26-7-1974 in which four persons were let off. When both the cases came before the trial Court, the State moved an application through the A. P. P., requesting the trial Court for consolidating both the cases for purposes of trial on which the impugned order was passed.
3. The learned counsel, for the applicant, has agitated only on a point that it's no more mandatory that every trial before the Court of Session has to be conducted by the public prosecutor. He has further contended that Law Reforms Ordinance which came into existence in 1972 has totally changed the position of the Public Prosecutor as it has omitted section 270, Cr. P. C., which provided, "that all trials before the Court of Session shall be conducted by the public prosecutor".
After the Law Reforms Ordinance, 1972, the public prosecutor shall conduct only those trials before a Court of Sessions, which are initiated upon a police report as provided by section 265-A, Cr. P. C.
In order to support his contention he has relied upon the case of Muhammad Sharif and others v.
Rahmat A.I and others (1). It has also been contended that Noor Illahi's case would not be applicable in this case as far as conduct of the prosecution is concerned as section 265-A was not available at that time.
4. The learned counsel, for the respondents 2 to 10, on the other hand, has contended that Noor Illahi's case is very much in existence as decided in case of Syed Muhammad Hussain Shah v.
Abdul Hamid and 5 others (2). Therefore the corf plainant's case has got to be conducted by the public prosecutor. The learned counsel for the applicant has even otherwise accepted the principle in "Noor 1llahi's case that the complainant's case shall proceed first, and has therefore, agitated only against the first part of the impugned order in respect of conduct of the prosecution case.
5. Mr. Sajid Hussain Siddiqui, appearing on behalf of the State has supported the contentions of the learned counsel for the respondents.
6. I have carefully examined the contentions of the learned counsel for the applicant/complainant as well as respondents. The only point agitated by the learned counsel for the applicant is as to who should conduct the prosecution of the complainant's case which has already been ordered to be proceeded with first.
7. It would be of great interest to reproduce the .Relevant sections, concerning conduct of prosecution before and after the promulgation of the Law Reforms Ordinance, 1972. Section 270, Cr.
P. C. Of Criminal Procedure Code of 1898 provided as under :-- "In every trial before a Court of Session the prosecution shall be conducted by a Public Prosecutor."
The Law Reforms Ordinance, 1972, omitted section 270, Cr. P. C., and instead provided that trials before the Court of Session shall be conducted in accordance with sections 265-A, 265-C 265-D, 265-F and 265-G, Cr. P. C., which are as under :---.
"265-A. Trial before Court of Session to be conducted by Public Prosecutor.-1n every trial. Before a Court of Session, initiated upon a police report, the prosecution shall be conducted by Public Prosecutor.
265-C. Supply of statements and documents to the accused.---(1) In all cases initiated upon police report, copies of the following documents shall be supplied free of cost to the accused not later than seven days before the commencement of the trial, namely;
(a) the first information report;
(b) the police report;
(c) the statements of all witnesses recorded under sections 161 and 164, and
(d) the inspection note recorded by an Investigation Officer on his first visit to the place of occurrence and the note recorded by him on recoveries made, if any:
(1) 1980 P Cr. L J 438 (2) 1981 SCMR 361 Provided that, if any part of a statement recorded under section 161 or section 164 is such that its disclosure to the accused would be inexpedient in the public interest, such part of the statement shall he excluded from the copy of the statement furnished to the accused.
(2) In all cases instituted upon a complaint in writing-
(a) the complainant shall-
(i) State in the petition of complaint the substance of the accusation, the names of his witnesses and the list of evidence which he is likely to adduce at the trial; and
(ii) within three days of the orders of the Court, under section 204 for issue of process to the accused, file in the Court for supply to the accused, as many copies of the complaint and any other documents which he has filed with his complaint as the number of the accused; and
(b) copies of the complaint and any other documents which the complainant has filed therewith and the statements under section 200 or section 202 shall be supplied free of cost to the accused not later than seven days before the commencement of the trial.
265-D. When charge is to be framed. If, after perusing the police report or, as the case may be, the complaint, and all other documents and statements filed by the prosecution, the Court is of opinion that there is ground for proceeding with the trial of the accused, it shall frame in writing a charge against the accused.
265-F. Evidence for prosecution.-(1) If the accused does not plead guilty or the Court in its discretion does not convict him on his plea, the Court shall proceed to hear the complainant (if any) and take such evidence as may be produced in support of the prosecution: Provided that the Court shall not - be bound to hear any person as complainant in any case in which the complaint has been made by a Court.
(2) The Court shall ascertain from the public prosecutor or, as the case may be, from the complainant, the names of any persons likely to be acquainted with the facts of the case, and to be able to give evidence for the prosecution, and shall summon such persons to give evidence before it.
(3) The Court may refuse to summon any such witness, if it is of opinion that such witness is being called for the purpose of vexation or delay or defeating the ends of justice. Such ground shall be recorded by the Court in writing.
(4) When the', examination of the witnesses for the prosecution and the examination (if any) of the accused are concluded, the accused shall be asked whether he means to adduce evidence.
(5) If the accused puts in any written statement the Court shall file it with the record.
(6) If the accused, or any one of several accused, says that he means to adduce evidence, the Court shall call on the accused to enter on his defence and produce his evidence.
(7) If the accused, or any one or several accused, after entering on his defence, applies to the Court to issue any process for compelling the attendance of any witness for examination or the production or any document or other thing, the Court shall issue such process unless it considers that the application is made for the purpose of vexation or delay or defeating the ends of justice such ground shall be recorded by the Court in writing.
265-G. Summing up by prosecutor and defence.-(1) In cases where the accused, or any one of several accused, does not adduce evidence in his defence, the Court shall on the close of the prosecution case and examination (if any) of the accused, call upon the prosecutor to sum up his case whereafter the accused shall make a reply.
(2) In cases where the accused, or any one of the several accused, examines evidence in his defence, the Court shall, on the close of the defence case, call upon the accused to sum up the case whereafter the prosecutor shall make a reply. ' .
8. It would be very easy to understand as to what is the intention of the Legislature in omitting section 270, Cr. P. C., and providing the above sections in its place. Therefore position of the Public Prosecutor in the changed circumstances is not what it used to be before the promulgation of Law Reforms Ordinance, 1972. It's undoubtedly different and he has been confined to conduct the prosecution of the trials before a Court of Sessions initiated upon a police report. Section 265-C is divided into two parts. As far as supply of documents is concerned, and it's second part has specifically made it mandatory for the complainant to supply the relevant documents. Section 265-D gives separate reference to police report or as the case maybe, the complaint, at the time of framing of a charge. Again in clause (2) of section 265-F provides that the Court shall ascertain from the public prosecutor or as the case may be, from the complainant, the names of any persons likely to be acquainted with the. Facts of the case and to be able to give evidence for the prosecution etc. Shows that the prosecution can be conducted by the complainant himself and that is why a separate provision to exclusion of the Public Prosecutor is made. Section 265-G refers to summing up by the prosecutor after the close of the prosecution case which does not necessarily mean Public Prosecutor. If Public Prosecutor would have been the intention of the Legislature, it could have clearly inserted the word "Public Prosecutor" as provided in clause (2) of section 265-F, Cr. P. C. It has already been held by my learned brother Aftab Farrukh, J., in the case of Muhammad Sharif arid others v. Rahat A.I and others that "Prosecutor would include both i.e. the Public Prosecutor as well as counsel appointed or nominated by the complainant for prosecuting the case on his behalf.
9. The case of Noor Illahi was decided before the Law Reforms Ordinance, 1972 came into existence, therefore it would not apply as far as the point as to who should. Conduct the prosecution is concerned, otherwise it is no doubt an authority for all purposes. The facts involved in the case of Syed Muhammad Hussain Shah v. Abdul Hamid and others were also different no such point as to who should conduct the prosecution in that case was involved, therefore neither a decision to this effect is made in the above case nor any observation relevant to this point is found out there.
10. Now, therefore, purpose of amendments in the Criminal Procedure Code and omission of section 270, Cr. P. C. Is to equally safeguard the interest of the complainant, who ordinarily files the private complain in the Court, when he is' aggrieved with the police investigation. If the public prosecutor is allowed to conduct every trial before the Court of Sessions. Including one initiated on the private complaint and he doe not accept the story put forward by the complainant, what would happen to the case of the complainant? It would be the Public Prosecutor instead of the Court to decide as to correctness of a particular story which in n case could be the intention of the Legislature. The omission of section 270, Cr. P. C. And introduction of sections 265-A to 265-G, Cr. P.
C. Is also to meet situations of this type as in the present case so that n party should have any grievance to the effect if it's story has not been properly presented in the Court which has to ultimately decide as to which of the stories presented by the parties is correct.
11. In the result, the impugned part of the order dated 4th May; 1980, of the learned Additional Sessions Judge, is set aside. The prosecution of the complainant's case in the private complaint shall be conducted by a counsel for the complainant and this application, under the circumstances is allowed.