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Criminal Miscellaneous No. 132 of 1975/BWP, decided on 13th March 1975.
‑ S. 494‑Criminal case, withdrawal of‑District Magistrate not a proper forum for purpose of S. 494‑Only trial Court can exercise his discretion in matter.
Khan Riazud Din Khan for Petitioner.
Muhammad Khan for the State.
Thin is an application by Muhammad Siddique and Muhammad Hanif sons of Aziz‑ud‑Din caste Arain residents of Chak No. 340/H.R., under section 561‑A/439. Cr. P.C. for the quashment of proceedings in a case titled state v. Muhammad, Siddique etc under section 452/326, P.P.C. pending in the court of Magistrate Section 30, Fort Abbas
2. The brief facts of the case are that on 21‑2-1974 a case; under section 452, P. P. C, was registered against the petitioners at police Station Marot for making assault on the complainant Muhammad Afzal. Later on the complainant filed are application in the Court of the District Magistrate, Bahawalnagar under section 434, Cr. P. C. in which he prayed that he may be allowed to compound the offence with the accused persons. The reason for this move on behalf of the complainant was stated to be a peace move which was initiated at the instance of relative and brotherhood (biradary) of the parties which had culminated in a factual compromise. The complainant apprehended that litigation between the parties would result in deterioration of their relations and would lead to further litigation. This application was sent for report to the learned Public Prosecutor who rode his report dated 29‑11‑1974 recommended the permission for compounding of this case. 'The learned District Magistrate after going through the record and hearing the petitioners and looking into medico legal report, did not accept the petition moved by the complainant and declined to withdraw the case.
3. I have heard the learned counsel for the petitioners as well as the counsel fear the State. It has been submitted on behalf of the petitioners that it was a tit case for quashment under section 561‑A Cr. P. C. as it is apparent from the face of it that the complainant would not support the prosecution case and ultimately the case will end in acquittal. He has further urged that the learned District Magistrate does not come anywhere under the provision of section 494, Cr. P. C. in which the prime mover for the withdrawal of a criminal case is the Public Prosecutor subject to the consent of the trial Magistrate. Therefore the refusal of the learned District Magistrate to decline withdrawal was of no legal consequence. On the other hand the learned counsel for the State has pointed out that the ingredients of section 561‑A, Cr. P. C. clearly revealed that unless and until it was proved that the case was of no evidence, the superior Courts have always declined to interfere. He argued that in the instant case there are number of eye‑witnesses besides the complainant himself who area likely to support the prosecution version and thus the petitioners who are charged with non‑compoundable offences of grave and heinous nature cannot take benefit of section 561‑A or 494, Cr. P. C.
4. I have considered the arguments advanced by both sides and feel per shaded by the arguments of the learned State counsel as far as the prayer for quashment is concerned. In, face of the F. I. R. and availability of other P. W's. besides the complainant, no case of quashment is made out. Undoubtedly the learned District Magistrate is not the trial Court in this case and thus the application should not have been filed by the complainant in his Court. If at all the learned District Magistrate was approached under the provision of this section lay the complainant he should have directed the' Public Prosecutor to apprise the trial Court of his views in compliance of this section 494, Cr. P. C. Anyhow if the complainant genuinely wants to avoid further litigation and wants to forget the past in order to open a chapter of peaceful co‑existence he can once again initiate his petition for withdrawal of the case in the proper forum and the learned trial Magistrate can exercise his discretion under the law and the views expressed by the District Magistrate should not hamper his judicial discretion.
5. With these observations the petition stands dismissed.
Order accordingly.
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