' The instant revision petition has been filed on behalf of Muhammad Javed petitioner on the plea that case F.I.R. No.187 of 2003 registered on 20-4-2003 under sections 302/34/109, P.P.C. In Police Station, R.A. Bazar, Rawalpindi is pending trial in the Court of the learned Additional Sessions Judge, Rawalpindi. In the revision petition, it has been averred that the learned counsel for the complainant raised unnecessary objections on each and every point and as a result of which the learned defence counsel was incapable of performing his duty properly. An objection was raised from the side of the accused to the effect that the learned Public Prosecutor should conduct the case himself because he had, never permitted the learned private counsel to conduct the proceedings. The learned counsel for the petitioner has contended that a question was put to the learned Public Prosecutor by the learned trial Court as to whether he had permitted the private counsel to conduct the case and on which he had replied that as the accused had objected about the conduct of the case by the private counsel, hence he would himself conduct the proceedings.
However, the learned trial Court had skipped the said point and had illegally rejected the prayer of the petitioner and had overlooked the judgments of the Superior Courts relied upon by the learned counsel for the petitioner. He has argued that the authority reported as 1969 Cr.LJ 1058 which was referred to by the learned trial Court related to a different proposition of law and which was as to whether a counsel engaged by a private party can be appointed as Special Public Prosecutor.
Similarly, in the authority reported as 1987 Pak, Cr.LJ 1131, which was referred to in the impugned order, the Special Public Prosecutor had permitted the complainant's counsel to cross-examine the D.Ws. This was also not the point at issue before the learned trial Court because in this case the Public Prosecutor had denied having permitted the complainant's counsel to conduct the case. He has argued that the judgment reported as 1987 SCM R 1353 was also not relevant in this case because in the said case also the Public Prosecutor had permitted the private counsel to cross- examine the defence witness. He has argued that the impugned order, dated 13-4-2004 passed by the learned Additional Sessions Judge, Rawalpindi whereby he had allowed the counsel for the complainant to examine the witnesses be set aside.
2. On the other hand, the learned counsel appearing on behalf of the complainant has argued that the learned Additional Sessions Judge had delivered as well reasoned order based on a number of authorities and that the counsel for the complainant could 'act' in terms of section 493 of Cr.P.C.
And that the word 'act' in section 493 of Cr.P.C. Is not to be understood in the technical sense as meaning something distinct and different from the word 'plead'. He has argued that the Court can even ask any Lawyer practising before it to assist it in the decision of a matter before it, where the State representative is not before a Court and can call upon complainant's counsel as amicus curiae if the Court considers it desirable to obtain the assistance of a counsel engaged by a complainant in placing the facts before it. He has argued that by allowing the complainant's counsel to examine the witnesses under the directions and supervision of the Public Prosecutor, the learned Additional Sessions Judge, Rawalpindi had not committed any illegality and hence there is no justification for interference with the said order.
3. I have carefully considered the arguments from both sides and have also perused the case-law relied upon by the learned counsel for the parties.
4. In the case Malik Asad Khan v. The State 1969 PCr.LJ 1058 (Lahore), a counsel originally engaged privately by the complainant party was subsequently appointed as a Special Public Prosecutor to conduct the said case. In the said authority, it was held that in the prosecution of a criminal case, particularly a case of murder, an Advocate privately engaged is not a proper person to conduct the prosecution, as he would represent the interests of his client and it is above all things essential, that in the prosecution on behalf of the State private interests and private feelings, for instance, the desire to wreak vengeance should have no place and that an Advocate privately engaged to represent a complainant should have no other place than that of one strictly . Subordinate to an Officer who prosecutes on behalf of the State, for the State stands not necessarily for a conviction, -but for justice, However, in the aforesaid authority it was also observed that the word 'act' in section 493 of Cr.P.C. Is not to be understood in the technical sense as meaning something distinct and different from the word 'plead'. In the aforesaid authority it was further observed as under:--- "This question was also considered in Medichetty Ramakistiah and others v. The State of Andhra Pradesh, their Lordships observed as follows:--- ' To sum up, the conduct of all prosecutions before a Court of Session shall be in the hands of a Public Prosecutor appointed under section 492, subject to his power to instruct a duly qualified person acting under his directions, and where either before a Magistrate or before a Court of Session, a pleader is instructed by a private individual to prosecute any person in a case before any Court, the pleader so instructed may act in that case subject to the over-all supervision of the Public Prosecutor. Such a pleader can conduct the examination, cross-examination and re- examination of witnesses as also address arguments to the Court. These provisions do not, however, authorize the abdication of his functions by the Public Prosecutor; he should continue to be in charge of the case and to issue directions on all important matters."
' It was held in Mansabclar v. The State PLD 1972 Lahore 182 by reference to Vaz v. Emperor 1930 Muhammad W N 769 and Medichetty Ramakistiah and others v. The State of Andhra Pradesh AIR 1959 Andh Pra. 659 that in both the said authorities the view taken was that Public Prosecutor cannot abdicate his functions being incharge of the prosecution but a private pleader can conduct the examination, cross- examination, etc. Of witnesses under his directions. It was held in Zarif Khan v. The State 1987 PCr.LJ 1131 (Lahore) that cross-examination of defence witness by complainant's counsel with permission of Public Prosecutor is unexceptionable and where the Public Prosecutor had permitted complainant's counsel to cross-examine defence witness on his behalf and cross-examination was to be done under supervision of Special Public Prosecutor who was incharge of conduct of case, the order of trial Court, rejecting objections of accused and his counsel that it was only Public Prosecutor who could cross-examine defence witnesses was neither illegal nor improper. It was held in Zarif Khan v. The State 1987 SCM R 1353 that where a complainant's counsel was acting under the supervision and directions of Public Prosecutor who was incharge of the case, he could examine or cross-examine the defence witness under his directions.
5. In the light of the aforesaid authorities, it is clear that a complainant's counsel could act under the supervision and directions of a Public Prosecutor who is incharge of the case and can also examine or cross-examine defence witnesses. But in this case, the learned counsel for the petitioner has submitted that on being asked by the learned Additional Sessions Judge the learned Public Prosecutor had sated that on account of the objection of the accused he would himself conduct the prosecution. If this is the position, the learned Public Prosecutor can always do so, because under the law it is he who has to conduct the prose-cution. Therefore, in this particular case, it would be appropriate for the learned Additional Sessions Judge to inquire again from the learned Public Prosecutor as to whether he has allowed the private counsel to act under his directions and allowed him to examine or cross-examine the witnesses under his directions. In case the learned Public Prosecutor replies in the affirmative, the learned Additional Sessions Judge will permit the private counsel to act under the directions and supervision of the Public Prosecutor.
But if the Public Prosecutor opts to himself conduct the prosecution without any assistance by the private counsel for the complainant, obviously he has the right to do so.
6. Be that as it may, as the order of the learned Additional Sessions Judge, dated 13-4-2004 does not suffer from any infirmity, there is hardly any justification for interference in exercise of revisional jurisdiction of this Court. The revision petition, with the above direction/ observations, is thus accordingly dismissed.