' Through this revision petition Qaisar Abbas, petitioner, who is facing trial for the murder of Mst.
Safia, his sister-in-law (URDU TEXT) calls in question the legality of the order, dated 26-6-1992, by which the learned Additional Sessions Judge, in whose Court the murder case is pending, on an application moved by Muhammad Shafique P.W. And supported by the Deputy District Attorney of his Court, allowed the prosecution to give up Abdul Hamid, Abdul Sattar, Abdul Ghaffar, Zulfiqar and Khuda Bakhsh P.Ws. On the ground that they are not likely to support the prosecution case. The learned counsel for the petitioner is of the view that the law on the subject enjoins the prosecution to place all its cards before the Court irrespective of the consequences and in that context it is bound to produce each and every witness cited by it, whether he supports its case or not.
2. In order to ascertain as to whether the learned Deputy District Attorney incharge of the case in the trial Court has really adopted the application made by Muhammad Shafique P.W., the brother of the deceased, for giving up the aforesaid five witnesses, he has been summoned.
3. He states that being a State representative he consciously supported the application of Muhammad Shafique P.W., who being the brother of the deceased is in fact the complainant of the case. He submits that initially Abdul Hamid, the father of Qaisar Abbas accused, was the complainant as he had lodged the report with the police but he had done so with a view to save the skin of his son, who was the real culprit and diverted the course of events towards his enemies whom he blamed for the murder of his daughter-in-law. According to the learned Law Officer, during the investigation the police found that Mst. Safia had been killed by Qaisar Abbas petitioner and proceeding on that line, it cited Zulfiqar and Khuda Bakhsh P.Ws. As witnesses of his extrajudicial confession but they too appear to have deceived the police as they wanted to support the petitioner being their relation and the prosecution after giving them up, still has sufficient evidence against him in the form of extrajudicial confession to be testified by Muhammad Shafique and Muni/. Ahmad P.Ws. In support of his contention that the prosecution is not bound to examine the witnesses which it does not consider to be likely to give true evidence, he has quoted 1969 P Cr.
L J 883.
4. On the other hand, the learned counsel for the petitioner submits that now there are three versions of the occurrence and three sets of prosecution witnesses before the trial Court, one which was given by Abdul Hamid complainant and is embodied in the F.I.R.; second, which the police found after holding the petitioner as accused and cited Zulfiqar and Khuda Bakhsh as witnesses of extra-judicial confession; and third, which was introduced by Muhammad Shafique, the brother of the deceased lady, and his friend Munir Ahmad. In these circumstances, according to the learned counsel, the prosecution is bound at least to bring in witness-box Zulfiqar and Khuda Bakhsh P.Ws.
As they had been picked up by the police itself during the investigation and they cannot be given up merely for the reason that they might side with the accused. In support of his argument he has placed reliance on Rafique v. The Crown PLD 1955 (PC) 70, Rustam Khan and another v. The State 1986 P Cr. L J 440 and Muhammad Hussain and 2 others v. The State 1970 P Cr. L J 1330. Finally, he urges that the Public Prosecutor is to assist the Court for the administration of justice and not to become a counsel for the complainant or for some other person.
5. This case has peculiar facts and circumstances. Mst. Safia, the sister of Muhammad Shafique P.W., had been killed in the house of her in-laws. Abdul Hamid, her father-in-law, lodged the report with the police, blaming his enemies, namely, Khuda Bakhsh, Aslam and Muhammad Amir for her murder. The F.I.R. Was drawn up accordingly but the police during the investigation found that his son Qaisar Abbas petitioner was in fact her real killer. He was, therefore, arraigned as an accused after citing another set of prosecution witnesses, including Zulfiqar and Khuda Bakhsh, against him.
Muhammad Shafique, the brother of the deceased lady, meanwhile also joined investigation and he alongwith one Muhammad Munir also became prosecution witnesses against the petitioner.
During the trial he suspected the aforesaid five prosecution witnesses for siding with the petitioner and, perhaps with the approval of the learned Deputy District Attorney, made an application to the learned trial Judge for giving them up for the reason that they, being relations or sympathisers of the petitioner, might not support the prosecution case. In this move he had the express support of the Deputy District Attorney who virtually adopted this application on behalf of the State. Thus, it is obvious that Abdul Hamid, the father-in-law of the deceased lady, who posed himself as a complainant and lodged the F.I.R., was in fact a imposter who wanted to divert the course of events in order to save the skin of his son, the petitioner herein. In these circumstances; how Abdul Hamid and the witnesses cited by him could be produced as prosecution witnesses? Muhammad Shafique, who became incharge of the murder case of his deceased sister, virtually became complainant in the case and in view of the recently introduced Islamic dispensation on criminal side, he, in the capacity of complainant, has sufficient say in the matter. Being her heir, he can even compound the offence if he so likes. Therefore, he is not a stranger to the proceedings, rather, he is the real person, who can control them in the same manner as the State representative as incharge of the prosecution case, rather, he has upper hand over him in certain respects. Incidentally in this case both of them agree on the course adopted by them and no fault can be found with what they have done. When both of them are sure that the aforesaid five witnesses are likely to spoil the murder case of the deceased lady by siding with the accused, they had the A authority to make request to the trial Court for giving them up and the trial Court was competent to do so. One fails to understand, as to why the complainant, or for that matter, the State representatives should go by the choice of the accused in the production of prosecution witnesses against him. In other words, why the defence should be allowed to impose its will on the prosecution, which, after the recent conceptual change in law, is not to do certain things for the accused which it, as an organ representing the State, had previously been doing not only for the victim but also for the accused.
Now the prosecution is to be controlled or guided by the individual i,e. The aggrieved person or the complainant in the case, whose position as an individual is at par with the accused, though on account of the hang-over of the old concepts of the foreign law, unfortunately he still continues to enjoy certain privileges injurious to the fair administration of justice. Therefore, the case-law cited by the learned counsel for the petitioner, in the changed circumstances, has ceased to have its binding effect and no fault can be found with the impugned order. Consequently the criminal revision is dismissed. However, the petitioner, if so advised, may make a request to the trial Court for examining the given up prosecution witnesses as Court-witnesses and the Court may examine them as Court-witnesses if justice so demands.