MUHAMMAD YUNUS SURAKHVI, C.J.---This revision petition has been directed against an order passed by the Shariat Court on 14-11-2002, whereby the trial Court was directed to record the statement of P.W.16, Muhammad Riaz, in particular.
2. The necessary facts, for the disposal of present revision petition, are that a case was registered for allegedly committing offences under sections 302, 324, 147, 148, 109, 149 and 337, A.P.C. Against the accused-respondents Nos.2, 3 and others, at Police Station Trarkhal, Sudhnooti, on the report of Sheraz Ahmad Naz, petitioner herein, on 14-7-2002 vide F.I.R. No.20 of 2002. The case was investigated and during the course of investigation P.W.16, Muhammad Riaz, got his statement recorded under section 164, Cr.P.C. Before the Magistrate Class 1st on 1-8-2002 against the accused-respondents and after the completion of investigation the challan was presented before the District Court of Criminal Jurisdiction Sudhnooti/Pallandri for trial.
3. During the course of proceedings before the trial Court, the accused---respondents moved bail application on 15-8-2002. The trial Court bailed out accused Kamal Khan, Muhammad Zaheed, Aftab Ahmed and Ashiq 'Hussain, whereas it rejected the bail of accused-respondents, Iftikhar and Muhammad Shakeel, on 21-9-2002. The prosecution filed a revision petition for cancellation of bail of accused who were released on bail while the accused---respondents, Iftikhar and Muhammad Shakeel, filed a revision petition before the Shariat Court Circuit Rawalakot for their release on bail the date of hearing was fixed as 10-12-2002 at Rawalakot. In the meantime the accused- respondents, Iftikhar and Muhammad Shakeel, moved a petition before the Shariat Court, Muzaffarabad on 28-10-2002 for early hearing of the case at Muzaffarabad instead of Camp Rawalakot. During the course of proceedings at Muzaffarabad, the accused-respondents Nos.2 and 3 moved an application before the Shariat Court in an attempt to get recorded the statement of P.W.16, Muhammad Riaz, in particular. This prosecution witness is listed at Serial No.16 of the calendar and is stated to be a material witness. The normal practice of Criminal Courts of the State is to start the prosecution evidence from Serial No. 1 and to proceed onwards accordingly. It is the case of the complainant-appellant that in the past neither prosecution witnesses were left at the mercy of the accused nor pick and choose policy was left to the discretion of the accused for producing the prosecution witnesses. It is always the right of the prosecution to produce any witness or to give it up if the same does not support the case of the prosecution. The learned Shariat Court vide the impugned judgment dated 14-11-2002 directed the trial Court to record the statement of P. W.16, Muhammad Riaz, in particular. The trial Court accordingly under the direction of the Shariat Court fixed the date to record the statement of P.W.16 on 10-12-2002. It is the aforesaid judgment of the Shariat Court dated 14-11-2002 which is the subject-matter of present revision petition before this Court.
4. In support of revision petition it was vehemently contended by Sardar Mushtaq Hussain Khan, the learned counsel for the complainant-petitioner, that the accused--respondents Nos.2 and 3 in fact won over P. W.16, Muhammad Riaz, and wanted to get his statement recorded so that the accused may be benefited in the bail application moved by them. The mala fide intention of the accused is obvious from their conduct due to ongoing developments. Subsequently the said witness, Muhammad Riaz, produced his affidavit before the Court and resiled from his original confessional statement. According to the learned counsel for the complainant---petitioner it is the privilege and prerogative of the prosecution to decide at any appropriate stage as to how many prosecution witnesses are to be examined and which witness is to be given up. The defence has no right to insist upon the recording of evidence of a particular prosecution witness. The right of accused to lead the defence evidence starts after he is being examined under section 342, Cr.P.C., if he opts to do the same. However, if a prosecution witness is given up by the prosecution, the accused has the right to produce him in the defence. The accused could not insist upon examining the prosecution witness at the earlier stage who is listed at Serial No.16. Thus, the impugned judgment passed by the Shariat Court on 14-11-2002 is perverse, capricious and liable to be set aside. The learned counsel also contended that the prosecution was unable to produce evidence due to bail petitions moved by the accused persons from time to time, however, there was no delay on the part of the prosecution.
5. On the other hand controverting the arguments raised by the learned counsel for the petitioner, Sardar Abdul Hameed Khan, the learned counsel for respondents Nos.2 and 3, submitted that the trial Court has committed no error in directing to get the statement of P.W.16 to be recorded earlier because no definite procedure has been provided that the prosecution witnesses should be examined number-were as mentioned in the calendar of challan. The Shariat Court in the circumstances of the case felt advised to order for recording of the statement of P.W.16 for the purpose of immediate disposal of the case. Thus, no illegality was committed by the Shariat Court and its order did not warrant any interference by this Court.
6. Raja Ibrar Hussain, the learned Advocate-General, supported the contentions of Sardar Mushtaq Hussain Khan, the learned counsel for the complainant-petitioner, by contending that in fact P.W.16, Muhammad Riaz, was won over by the defence and due to mala fide reasons it wanted to get the statement recorded immediately so that the accused whose bail petition had already been moved, may get the benefit of his statement and they may be released on bail.
7. After hearing the learned counsel for the parties and perusing the record, it may be stated that Muhammad Riaz, son of Said Muhammad, has been cited by the prosecution as witness No. 16 in the calendar of challan. The accused-respondents moved an application before the Shariat Court at its headquarters at Muzaffarabad on 28-10-2002 stating therein that in the bail application filed by the accused-respondents, the next date has been fixed as 10-12-2002 at Rawalakot Circuit. It was prayed by the accused--respondents that if the file of challan is sent back to the trial Court for getting recorded the statement of prosecution witnesses particularly that of witness No.16, then they would not, for the time being, press their bail application and the same would be argued at Circuit, Rawalakot. In the end of the application it was prayed that the file of challan may be sent to the trial Court at Rawalakot so that the statement of Muhammad Riaz, P.W.16, may be recorded.
Similarly the file of application for bail may also be sent to Rawalakot. On 14-11-2002 a learned Judge in the Shariat Court ordered by sending the file of challan to the trial Court that the statement of P.W.16 may be recorded and it was further directed that the file of bail application may also be sent to Circuit Rawalakot. This shows that the accused wanted to get the statement of P. W.16 recorded immediately because of their ulterior motives and with mala fide intentions in order to get support in their bail application. Subsequently the apprehension of the learned counsel for the complainant-petitioner turned true when P. W.16 filed ' an affidavit before the trial Court resiling from his original statement which he got recorded under section 164, Cr.P.C.
8. It is a settled principle of criminal law that it is the prerogative of the, prosecution to produce any prosecution witness, cited in the calendar of challan, or to give up anyone of them but the Shariat Court while directing the trial Court on the application of the accused that the evidence or P.W.16 might be recorded earlier in particular has deprived the prosecution of the privilege and prerogative which vests in it. Even otherwise we are of the view that on the application of the accused persons it is not desirable to order for the recording of statement of prosecution witness out of turn because this gives an impression to the litigants in particular and to the public in general that the attitude of the Court is not fair and impartial. The famous maxim must always remain in the mind of the Court that 'justice should not only be done but it should appear to have been done'.
9. In the light of what has been states above by accepting the revision petition, we set aside the impugned order passed by the Shariat Court on 14-11-2002 and direct the' trial Court to proceed with the case firstly by recording the evidence of the prosecution and thereafter if any witness is given up by the prosecution, the accused would be at liberty.