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Criminal Original Case No. 4 of 1956, decided on 2^nd June 1956, transferred to the High Court, Lahore vide Shabir Ahmed J., order dated the 2nd April 1956 in the Criminal Miscellaneous 268 of 1956.

, Ss. 267 and it 526 (2)‑Case transferred by High Court to itself from a Magistrate's Court‑Trial, whether to be by jury.

The procedure to be followed by the High Court in cases transferred to itself from a Magistrate's Court under sub section (2) of section 526, Criminal Procedure Code, is to be the same as would have been followed by the Magistrate if the case had not been transferred, unless the High Court directs under section 267, Criminal P. C. that the trial should be by jury.

, Ss. 333 and 494‑Advocate‑General may withdraw case whether tried by High Court with the help of jury or not‑Advocate‑General may withdraw case instituted upon complaint.

Held, that section 333 is applicable also to cases tried by the High Court otherwise than with the help of a jury. The Advocate‑General may therefore inform the High Court in such a case that he would not further prosecute the defendant upon the charge, and, thereupon, proceedings would be stayed, and the defendant discharged or acquitted as ordered by the High Court. The section was not confined to cases tried by jury.

Though section 333 of the Code of Criminal Procedure mentioned the return of a verdict and would appear at first sight to apply to cases of trial by jury, it was on its plain language applicable to all cases which were tried by the High Court in exercise of its original jurisdiction.

On behalf of the Advocate‑General there was made a request under section 494, Criminal P. C., that the case, which, was before the High Court after transfer from a Magistrate's Court under section 526 (2), Criminal P. C. and which was to be tried by the High Court not with the aid of a jury but as a warrant case, as the Magistrate would himself have tried it, should be allowed to be with drawn. But the High Court declined to allow the withdrawal as the case was of some importance from the point of view of administration, whereupon, the Advocate‑General in formed the Court under section 333 Criminal P. C., that he did not want further to prosecute the accused.

Held, that the High Court had no option but to terminate the proceedings.

An order of acquittal was recorded under the circum stances of the case although no charge had been framed.

Held further, that the powers of the Advocate. General under section 333, Criminal P. C., may be exercised even with regard to cases instituted upon complaint.

Advocate‑General, Assistant Advocate‑General and M. Z. Kitchlew for Complainant.

S. Muhammad Iqbal and Zahir Abbas for Accused.

This order will govern Criminal Original No. 4 of 1956, and Criminal Original No. 5 of 1956, in both of which the accused are the same and the points that require determination at this stage are also the same. The former of these cases is a complaint lodged, on the 22nd of July 1954, by Ghulam Sarwar Girdawar against Niaz Ali, Sub‑Ins pector, and Dost Muhammad, Assistant Sub‑Inspector alleging offences of wrongful confinement (section 342 of the Pakistan Penal Code) and Criminal intimidation (section 504 of the said Code) against the two police officers, while the latter is a complaint lodged on the 28th of July 1954, by Khalil‑ur- Rahman Patwari against the two police officers alleging that they had, by forcing him to make confessions of having committed forgeries by tampering with revenue records in order to favour Sardar Abdul Hamid Dasti, a Minister in the Provincial Cabinet, and some others, been guilty of offences under sections 330 and 348 of the Pakistan Penal Code. It appears that Khalil‑ur‑Rahman had made a confession before a Magistrate of the 1st Class at Lahore that he had committed forgeries, and it was sometime after that confession that he lodged the complaint. The confession was made during the investigation of a case under section 420 of the Pakistan Penal Code which was registered at Police Station Lieah by Niaz Ali accused.

The complaints were instituted in the Court of the District Magistrate, Muzaffargrah, who summoned the accused in December 1955, and a few days later, entrusted the cases for trial to the Additional District Magistrate, Muzaffargarh. In the end of February 1956, the two accused presented transfer applications in this Court (Criminal Miscellaneous No. 268 of 1956 and Criminal Miscellaneous No. 269 of 1956) praying that, as Sardar Abdul Hamid Dasti, who was a Minister, was interested in the successful termination of the cases against them so that his own guilt may not be exposed, the cases should be tried by this Court on the original side. The grounds on which the transfer applications were based were weighty, and, as it was stated before me by Sardar Muhammad Iqbal, the learned counsel for the accused and was also clear from the trend of the applications that the endeavour of the accused in their defence was to be to show that they had been falsely implicated in order that the reputation of high personalities be saved, I passed orders on the 2nd of April 1956 that the cases be transferred to this Court to be heard by it in the exercise of its extraordinary original criminal jurisdiction. The only ground on which the complainants in the two cases resisted the transfer applications was that being petty revenue officials they would not be in a position to bear the expenses of summoning the witnesses if the cases were heard at Lahore, and I, therefore, directed that the expenses of the witnesses were to be borne by the Government. It came to my notice that the complainants had engaged no counsel to oppose two transfer applications and had engaged none even when their cases were pending in the Courts at Muzaffargarh, and, as the decision in the cases could have far‑reaching effects, I suggested to the Provincial Government that the prosecution be conducted by the Advocate‑General. This suggestion was accepted by the Provincial Government, and the Advocate General, West Pakistan, undertook the prosecution of the cases, which on the records coming to this Court were en trusted by my Lord the Chief Justice to me for disposal.

When the cases came up before me on the 31st of May 1956 for recording the statements of the witnesses summoned at the suggestion of the complainants and Mr. S. A. Mahmood, Assistant Advocate‑General, Mr. M. Z. Kitchlew, Advocate, who was in charge of the prosecution on behalf of the Advocate‑General, made a request that the cases be allowed to be withdrawn. This prayer was evidently made under section 494 of the Code of Criminal Procedure which makes the consent of the Court to the withdrawal necessary, and, as the cases were of some importance from the point of view of administration of justice as well as otherwise, I declined to accede to the request for withdrawal of the cases. Shortly afterwards, Sheikh Faiz Muhammad, Advocate‑General, West Pakistan, appeared before me and said that, acting under section 333 of the Code of Criminal Procedure, he did not want to further prosecute the two accused persons on any of the charges against them in the two cases and, therefore, all proceedings against the accused on those charges be stayed and the accused discharged.

The desire of the learned Advocate‑General not to let the cases proceed astonished me, because in view of the serious allegations made against Sardar Abdul Hamid Dasti, who was a Provincial Minister at all relevant times, in the transfer applications the contents of which were published verbatim in, at least, one daily newspaper, I was expecting that the attempt of the Provincial Government would be to prove that the accused had been guilty of the offences mentioned in the complaints lodged against them. But I was vastly more astonished when Sardar Muhammad Iqbal, the learned counsel for the accused, instead of welcoming the termination of the cases against his clients, opposed the prayer that the cases should finish without evidence being recorded. Sardar Muhammad Iqbal, whose clients were present in Court all along, explained his unusual attitude by saying that if the cases were not heard by a Court of law the world will not know that departmental orders passed to the prejudice of the accused and some other officials had resulted from no other reason than to punish them for having fearlessly undertaken the investigation of a case in which one of the highest dignitaries of the Provincial Government might possibly have ‑been proved not to have acted according to the standard expected of him. As the learned Advocate‑General asked for an order of the discharge of the accused and their learned counsel, urging that the cases could not be withdrawn by the learned Advocate‑General, and, at any rate, it was within my discretion to refuse withdrawal even though the request was made by the Advocate‑General, insisted on the trial of the cases, I adjourned the cases for a day to allow the counsel to address arguments on the points that arose, and yesterday heard arguments on the point whether or not the trial of these cases had to stop because of the request of the learned Advocate‑General to that effect.

At the time when they were transferred to this Court, the cases were pending before the Additional District Magistrate, Muzaffargarh, and, therefore because of sub section (2) of section 526 of the Code of Criminal Procedure, the procedure to be followed in their trial had to be the same as would have been followed by the Additional District Magis trate, Muzaffargarh if the cases had not been transferred to this Court subject to any order passed by this Court under section 267 of the Code of Criminal Procedure which enjoins that all trials before the High Court are to be by jury, and the High Court can direct that the trial of a case transferred to itself be by Jury. I did not direct that the trial of the cases was to be by jury, and, therefore, the procedure to be, followed in these two cases has to be according to Chapter XXI of the Code of Criminal Procedure wherein the procedure relating to the trial of warrant cases is detailed. Relying on this fact, it was argued by the learned counsel fore the accused that, as the procedure for the trial of warrant cases was to apply to these two cases, withdrawal of the cases would be governed by section 494 of the Code of Criminal Procedure which is to the effect that a Public Prosecutor may with the consent of the Court withdraw from the prosecution of any person and upon such withdrawal, if allowed, the accused shall be discharged if the withdrawal takes place before the framing of the charge and acquitted if such with drawal takes place after a charge had been framed. The reliance of the learned Advocate‑General, on the other hand, was on section 333 of the Code of Criminal Procedure which reads as follows:‑

"At any stage of any trial before a High Court under this Code, before the return of the verdict, the Advocate General may, if he thinks fit, inform the Court . . . . . that he will not further prosecute the defendant upon the charge; and thereupon all proceedings on such charge against the defendant shall be stayed, and he shall be dis charged of and from the same. But such discharge shall not amount to an acquittal unless the presiding judge otherwise directs".

The learned counsel for the accused contended that section 333 of the Code of Criminal Procedure could not be invoked because even if applicable to these cases, it would have had a bearing only if the trial were by jury. He pointed out that the section deals only with a withdrawal before the return of a verdict, and, as a verdict can be returned only by a jury, the section was intended to have application to those cases only in which trial before the High Court was by Jury, and to no others. The contention of the learned Advocate General, on the other hand, was that, though section 333 of the Code of Criminal Procedure mentioned the return of; verdict and would appear at first sight to apply to cases o trial by Jury, it was on its plain language applicable to all cases which were tried by the High Court in exercise of its original jurisdiction. I agree with the learned Advocate General with regard to the field which section 333 of the Code of Criminal Procedure was intended to cover, because, if the intention of the legislature were that the section was to apply only to cases in which the trial in the High Court is by jury, the section would not have been worded as it is. The legislature, which enacted section 333 of the Code of Criminal Procedure, could not have been unaware of the fact that by section 267 of the same Code they had provided that the trial of a case transferred to the High Court may be by Jury or otherwise and the mere fact that they have not more clearly indicated that the section was applicable to cases other than those tried by jury is no ground for holding that the section had to apply only to cases which were tried in that manner.

It was also contended by the learned counsel for the accused that, as the cases had been started on complaints, the learned Advocate‑General could not exercise his powers under section 333 of the Code of Criminal Procedure with regard to them. This argument appears plausible at first sight but cannot be accepted in view of the language in which the section is couched. In the present case, the learned Advocate General had undertaken the prosecution of the accused on c the suggestion made by me in the order passed on the transfer applications of the accused, but even if he had not done that his powers under section 333 of the Code of Criminal Procedure would have been wide enough to act in spite of the fact that the cases were started on private, complaints. In view of what I have said above, I have no option but to terminate the proceedings against the accused in both the cases, because the learned Advocate‑General, in exercise of his powers under section 333 of the Code of Criminal Procedure, wants that course to be followed.

I cannot pass on to the next question that arises in the case without making it clear that if I had any option in the matter I would not have allowed the cases to be strangled at their very birth like unwanted illegitimate children, because it is my duty as a humble member of the highest Court of Justice in the Province to give redress without fear or favour, affection or ill‑will, to the party found entitled to it. The complainants and the accused are, no doubt, not very high ranking public servants, but they are, nevertheless, entitled to get even‑bonded justice like every one else who chooses to knock at the portals of any of the places of justice. I have not the slightest hesitation in declaring that if the accused had succeeded in establishing that they had been falsely in volved in the cases because in the discharge of their duty as police officers they had investigated the case under section 420 of the Pakistan Penal Code regardless of the fact that the result of their investigation might have been to show that a member of the Provincial Cabinet had got more land in Thal than he was entitled to, this Court would have given them all the protection that it possibly could. And if it had been established that the accused had misused their powers as police officers and had not only forced one of the complainants to falsely confess having committed forgeries but had also attempted to silly the name of no less a personage than a member of the Provincial Cabinet. I would not have passed any but the maximum sentence prescribed by law for the offences proved against the accused. I have, however, no doubt in my mind that the fact that this Court has been deprived of the opportunity of examining the matter, because such a course is allowed by law, will not close all other avenues of redress‑should redress be due‑because the aggrieved party can ask for redress by sending petitions to those high executive authorities whose powers to right wrongs are not trammelled by laws of procedure or the Evidence Act some provisions of which sometimes result in exclusion from consideration of thoroughly reliable evidence. Moreover, it is by no means unlikely that after going through the contents of the transfer applications of the accused which alleged a number of oppressive orders and were couched in challenging language and in view of the challenging attitude which the accused took up before me in open Court through their learned counsel the learned Advocate‑General will advise the Provincial Government that the policy of avoiding the scrutiny by Courts of the case relating to the alleged forgeries in the revenue records is doing more harm than good and that the taking of effective steps to allay the suspicions of the public is indicated.

I now pass on to consider what order should be made. The learned Advocate‑General wanted that the order should be one of discharge, but I am of the view that it should be one of acquittal. These cases against the accused were started more than two years ago, and, as the complainants and even the Provincial Government have not been able to establish anything against the accused so far and have not accepted the challenge thrown out by the accused in open Court, I con sider it would be unjust to leave the complainants or anyone else the option not likely to be exercised but still existing‑to rake up the cases at some future time. In the application they put in, the complainants ascribed their in ability to produce witnesses to the influence of the accused but as the accused are no longer posted in Muzaffargarh District and there is no evidence not even an affidavit‑in support of this assertion. I cannot accept it. As no charges have been framed the order would have had to be one of discharge if section 494 of the Code of Criminal Procedure were applicable, but under section 333 of the same Code while the powers of 'the High Court to refuse to allow the prosecutor to smother the prosecution do not exist, the powers with regard to the order to be passed in favour of the accused when the prosecutor does not want the trial to be proceeded with are unlimited, as the Court can pass an order of acquittal though no charge has been framed, The circumstances of the case require that the order should be one of acquittal and, consequently, I acquit both the accused in both the cases.

K. B. A./A. H. Proceedings terminated.

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