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Criminal Revision Application No. 229 of 1963, decided on 4th October 1965.

Ss. 494 & 439 Withdrawal from prosecution‑"Consent" within meaning of S. 494 must be one freely given by free and independent Magistrate and not by one surrendering his authority to his superiors‑Reasons for withdrawal should be considered on judicial grounds and should not be arbitrary or mechanical‑Ground of "public policy" or "interests of administration"‑Not sufficient or proper ground for withdrawal Order of discharge of accused under S. 494‑Judicial order‑High Court, in revision, competent to go into matter and judge for itself whether order of discharge proper or otherwise.

An order under section 494, Criminal Procedure Code, 1898 consenting to withdrawal of the case is a judicial order and so to be a judicial order there must be reasons underlying it. These reasons should be capable of articulate expressions, and there must be an indication in the order itself whether the Magis trate's discretion has been rightly exercised. The consent within meaning of section 494, Cr. P. C. means consent freely given by a free and independent Magistrate who must not surrender his authority to the District Magistrate, but must act judiciously and arrive at his own independent conclusion on a consideration of all the relevant circumstances whether the withdrawal ought to be permitted. Where, therefore, an order under section 494, Cr. P. C. by a Resident Magistrate was not given with due considerations to all aspects of the case but was primarily occasioned by the order of the District Magistrate, which in turn gave no considera tions nor took into account the seriousness of the prima facie case against the accused and of the injury on the person of one of the complainant party it was held that there was no justification in law for the withdrawal of the prosecution case and the order passed under section 494, Cr. P. C. was, therefore, illegal.

Fukirchand v. Murad Umar & Sons A I R 1940 Sind 233 ; Emperor v. Sitaldas A I R 1943 Sind 109 ; Emperor v. Milanmal Hardasmal A I R 1943 Sind 161; Crown v. Babu and others P L D 1956 Kar. 385 and Awaz Gul v. Habib Khan P L D 1959 Pesh. 186 ref.

S. 439-Revision petition alleged to be by person having no locus standi-High Court, nevertheless, competent to examine matter in exercise of its re visional powers.

Qazi Faizullah v. The State P L D 1965 Kar. 105 ref.

Muhammad Hayat Junejo for Applicant.

Mrs. Salima Nasiruddin for the State.

A. H. Pirzada for Respondents Nos. 1 to 5.

Date of hearing : 28th September 1965.

This revision application is directed against the orders of the learned R. M. More dated the 8th of November 1961 by which he allowed the withdrawal of the case against respondents 1 to 5, and discharged them under section 494, Cr. P. C.

2. The applicant was one of the injured witnesses of an incident that took place on the 25th of July 1961 when one Ghulam Kadir accompanied by Ismail, the applicant Muhammad Kassim and a constable Hakimali, left his village riding a jeep to offer condolences to the heias of Rais Gul Muhammad Khero. On the way while driving along the James minor this party was accosted and attacked allegedly by respondents 1 to 5 who were armed with guns and rifles and suddenly emerged from their hiding. Shots from the fire arms struck the jeep destroying the headlights and injured the left aim of the applicant. The case of the applicant is that as a result of these injuries his left arm had to be amputated. Owing to these injuries the applicant was taken by Rais Ghulam Kadir to the Nawabshah Civil Hospital and Rais Ghulam Kadir's kimbar was directed to lodge a report which he did at the Doulatpur Police Station under sections 307/ 149, P. P. C. and 19-E of the Arms Act.

3. After the respondents bad been challaned, only the evidence of Dadan was recorded. It is important to bear in mind that this Dadan was not an eye witness to the incident and his F. I. R. related to details as given to him by his Zamindar. Nevertheless the first report definitely stated that on account or the gunshot injuries the condition of the applicant Muhammad Kassim had become serious.

4. Dadan's statement was recorded before the R. M. Moro on the 28th August 1961. An application under section 494, Cr. P. C. was made to the District Magistrate Nawabshah, contending to be on behalf "the parties" requesting that the case be withdrawn on the ground that Ghulam Kadir on the one hand and the accused on the other hand who are near relations had compromised their differences at the intervention of respectable persons, that there had been misunderstanding between them due to "very trifling matters" which had been removed by their nekmard, "that the willingness on the part of the complainant's party clearly suggested that they were anxious for the compromise rather than proceeding with the case," that the prosecution case was "un plausible and unnatural" with no liklihood of its ending with conviction, and that the "hurry and haphazard manner of the investigation on the part of the police clearly suggests that they never applied their mind to the case and hence produced a formal challan". Para. 8 of this application reads as under:

"The Honourable Court will be pleased to take into consideration the stand taken by the Superintendent of Police that he had directed the Prosecutor to make a statement before the learned Resident Magistrate Moro that the learned District Magistrate will be requested to allow withdrawal of the case."

This application was forwarded by the District Magistrate to the R. M. Moro for his remarks. The learned Magistrate in all conscience made the following remarks

"Only the complainant has been examined. He has fully supported the prosecution. At this stage no remarks can be offered by me. The accused are involved in henious crime and injured Kassim has received gun shot injuries. An offence under section 307, P. P. C. is exclusively triable by the Court of Sessions."

5. Thereafter the learned District Magistrate passed an order under section 494, Cr. P. C. It is undated and a copy of it was forwarded to the R. M. Moro on 1-11-61. The order stated the grounds on which the application for withdrawal had been made, that the case against the respondents was one under section 307, P. P. C. that although the complainant had been examined, "the injured and the other main witnesses are yet to be examined," and in view of that the learned D. P. P. urged before the learned District Magistrate that the prosecution witnesses may not be available and to "allow the parties an opportunity to live peacefully and to really iron out their differences for ever", the application was allowed and the D. P. P. Nawabshah was ordered to withdraw the case from the file of the R. M. Moro.

6. The impugned order of the learned R. M. Moro merely referred to the circumstances explained by the A. P. P. and allowed the withdrawal resulting in the discharge of the respondents.

7. As previously stated the applicant is one of those who were riding the jeep on the day of the incident and was injured as a result of the gunshot, and, as stated in the affidavit supporting his application, these injuries resulted in his left arm having to be amputated. That the applicant was seriously injured was also referred to in the F.I.R. and the seriousness of the injuries are emphasised by the fact that immediately after the incident, applicant's Zamicidar Rais Ghulam Kadir Khan considered it necessary to have him carried immediately to the Nawabshah hospital and to ask his Kamdar Dadan Khan to lodge the F.I.R.

8. It is manifest that although the entire proceedings referring to the withdrawal of the case have been made by the parties, the applicant has not been taken into confidence, and indeed does not appear to have known of the so‑called compromise effected between the parties at the intervention of the nekmard. The only progress of the case against the respondents before the R. M. Moro was that the first informant had been examined. He was not an eye‑witness to the incident and it must have been obvious to the authorities who dealt with this matter and as they have themselves referred to this aspect, that neither the injured nor indeed the eye witnesses had been examined in the case.

9. When this application was filed in this Court, applicant was present in person and in addition to admitting it to regular hearing, I considered it necessary in the interests of justice to obtain an explanation from the District Magistrate, Nawabshah concerned, whether in passing his order allowing the withdrawal under section 494, Criminal Procedure Code, he took into consideration or indeed was aware of the nature of the serious injury to the applicant. In his reply dated the 13th June 1963, and an explanation, which is otherwise not convincing, it is stated that as far as he could recollect this applicant had not been examined "because it was deposed that Kassim was out of station for treatment and was not expected to return for sometime." Except the fact that the Additional District Magistrate in his explanation dated 27th April 1963 which was not called for referred to the applicant having gone to Karachi for treatment and of being unlikely to return at the time the application for withdrawal was made, there is nothing on record to substantiate this circumstance stated by the learned District Magistrate.

10. On the basis of the challan against the respondents they were prima facie charged with offence punishable under section 307/149, P. P. C. and even if it was a case of one under section 326, P. P. C. it should have been obvious to the learned District Magistrate that this was a case which was not compound able under any circumstance and, in any case, not without the consent of the injured.

11. The main point urged by Mr. Junejo for the applicant is that the "consent" as referred in section 494, Cr. P. C. granted by the learned R. M. Moro was illegal and improper as it gave no reasons for the allowing for the withdrawal of the case, and indeed only followed what are directions from the District Magistrate. It was urged that in the context of the language of section 494, Cr. P. C. that it is the responsibility of the Court to decide freely whether or not to grant consent for withdrawal, and the reasons for such withdrawal should be considered on judicial grounds and should not be arbitrary and indeed not mechanical. The consent given by the learned R. M. Moro was certainly not given by him exercising his free discretion. Indeed this impression is accentuated by the fact when in his remarks dated 1st September 1961 this learned Resident Magistrate opposed the withdrawal on the ground that the accused were involved in a heinous crime, that the injured Kassim had received gunshot injuries, that the offence was exclusively triable by the Court of Sessions and that at that stage only the complainant had been examined and he had fully supported the prosecution case.

11‑A. Several rulings have been cited by the learned counsel for the applicant on the ground of "consent" in section 494 Cr. P. C. In Fakirchand v. Murad Umar & Sons (A I R 1940 Sind 233), it was observed that an order under section 494, Cr. P. C. consenting to the withdrawal of the case is a judicial order, and to be a judicial order there must be reasons underlying it. These reasons should be capable of articulate expressions, and there must be an indication in the order itself whether the Magistrate's discretion has been rightly exercised. It was further observed that the consent within the meaning of section 494 means a consent freely given by a free and independent Magistrate who must not surrender his authority to the District Magistrate, but must act judiciously and arrive at his own independent conclusion on a consideration of all the relevant circumstances whether the withdrawal ought to be permitted.

12. In Emperor v. Sitaldas, (A I R 1943 Sind 109) and Emperor v. Milanmal Hardasmal (A I R 1943 Sind 161), the ground of "public policy" for the withdrawal of a case under section 494, Cr. P. C. was discussed and it was observed that public policy is not a proper and sufficient ground for such withdrawals. In the latter ruling it was also observed that the expression "in the interest of administration or ground of public policy" were meaningless so far as withdrawal of cases were concerned, and that it was improper interference with the administration of justice on the part of a District Magistrate sitting outside the Court to call for a case pending before a Sub Magistrate and to give instructions for withdrawal of the same, and further that it was improper for a Public Prosecutor to tell or show to a Sub‑Magistrate the instructions of a District Magistrate for the withdrawal of a case thereby bringing improper pressure to bear upon the Magistrate. The same view was held in Crown v. Babu. and others (P L D 1956 Kar. 385).

13. In Awaz Gul v. Habib Khan (P L D 1959 Pesh. 186), Habibullah, J. was of the view that an order of discharge under section 494 Cr. P. C. is a judicial order, and the Court must record reasons in order to enable the High Court to judge whether the order of discharge has been rightly made. If the Court fails to record reasons in support of its consent to the withdrawal, the High Court can always look into the matter in the exercise of its revisional jurisdiction and it will always be open to the High Court and in some cases it will be necessary to go into the matter and to judge for itself whether the order of discharge is proper or otherwise. Earlier his Lordship was pleased to observe that judicial exercise of the discretion means consideration of all the facts and circumstances available to the Court and also the grounds on which the withdrawal was sought. The consent must be exercised judicially for the very word "consent" clearly indicates that it should not be given lightly and without a careful and proper scrutiny of the grounds on which the application was based. I am therefore clearly of the view that the consent given by the learned R. M. Moro was not given with due consideration to all aspects of the case. Indeed that it was primarily occasioned by the order of the D. M. Nawabshah, which in turn gave no consideration nor took into account the seriousness of the prima facie case against the respondents and of the injury on the applicant.

14. Mr. Hafiz Pirzada, learned counsel for the respondent, has opposed this application on grounds of delay in the making of this application and that the applicant had no locus standi in this matter. In his affidavit supporting the main application under section 439, Cr. P. C. the applicant has stated that he had never entered into a compromise with the respondents, that none of them are related to him, he being a Khaskeli by caste, that the respondents and the complainant's Zamindar are Dahris and related to each other, that he was not aware of any application for compromise, and that he was told by Dadan and his Zamindar that the case was still pending and would proceed, and he only came to know of the compromise and withdrawal of the case about a week before he made his application which was dated the 8th of April 1963. He further states that he is an illiterate cultivator and was kept in the dark about the progress of the case, that his Zamindar's party in the case are influential and have managed that the applicant should be unaware of the fate of the case.

15. 1 am quite clear that the applicant was in fact prevented from approaching this Court and in spite of the lapse of time and some delay that has been occasioned in this Court in the progress of the case, for which the applicant is not responsible and for that reason alone that this application should not be dismissed.

16. As to the applicant having a locus standi in moving this Court, reference may be made to Qazi Fazullah v. The State (P L D 1965 Kar. 105) where it was observed as follows :‑

"Besides under sections 435, 436 and 439 Cr. P. C it is open to any person to move the Court on its revisional side and the High Court can, on its own motion, in the case of any proceedings the record of which has been called by itself or which has been put up for orders or which otherwise comes to C its knowledge, proceed to inquire into the matter in order tot satisfy itself as to the regularity of any such proceeding.) Therefore, even if the petitioners had no locus standi, this Court is still competent to examine the matters in exercise of its f powers."

I am in respectful agreement with these observations.

16. For the above reasons, I am firmly of the view that this is a case in which there has been a grave miscarriage of justice, that there was no justification in law for the withdrawal, of the case against the respondents by the learned R. M. Moro, that the order for withdrawal was irregular and illegal, and that the order must be set aside in consequence of which this revision application is allowed. The Court of the Resident Magistrate, Moro is ordered to proceed with the trial of the respondents Nos. 1 to 5 according to law.

K.B.A. Application accepted.

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