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Criminal Appeal No. K-3 of 1977, decided on 4th February 1977.

(On appeal from the judgment and order of the High Court of Sind & Baluchistan made on 25-10-1976 in Cr. Revision No. 99 of 1976).

- S. 494-Withdrawal from prosecution-Section 494 very widely worded and not indicative of any principle or guideline for grant or refusal of consent of Court-Order of acquittal or discharge passed under section consequent upon withdrawal of Public Prosecutor from prosecution with consent of Court-A judicial order liable to revision by High Court when direction improperly or arbitrarily exercised by Court.

The King v. Parmarand A I R 1949 Pat. 222 ; The King v. Mould Buz A I R 1949 Pat. 233 ; Rajni Kanti Shaha v. Idrees Thaukar -I L R 48 Cal. 1105 ; State of Bihar v. Ram Naresh Pandey P L D 1957 S C (Ind.) 361 Awaz Gul v. Habib Khan P L D 1959 Pesh. 186 and State v. Ensab Ali 1969

P Cr. L J 320 ref.

--- S. 494-Withdrawal from prosecution-Exercise of discretion to give or refuse permission to withdraw from prosecution-Need not be deferred till trial Court records all available evidence-Discretion in such regard, held, exerciseable on basis of available material, even though evidence not judicially recorded.

--- S. 494-Withdrawal from prosecution-Matters to be determined for purpose of giving consent.

What the Court has to determine in such a case, for the purpose of giving consent, is whether the general executive discretion given by law to the public prosecutor has not been improperly exercised or that it is not an attempt to interfere with the normal course of justice for reasons not related to the public interest.

S. 494-Withdrawal from prosecution-Possible grounds for withdrawal and function of Court in such regard.

The application for withdrawal can be made on many possible grounds which may include the inexpediency of prosecution on grounds of public policy or in the interest of public peace, or the undesirability of permitting the prosecution to continue where there is insufficient or meagre evidence to justify a conviction The discretionary power having been vested in the public prosecutor by the statute, the Court acts, so to say, in a supervisory capacity, to see that the power is not abused in any manner or exercised arbitrarily and contrary to the public interest so as to amount to an interference with the ordinary course of justice. The Court must, therefore, satisfy itself that there do exist on the record grounds to sustain the reasons advanced by the public prosecutor for his withdrawal from the prosecution. It is clear that this supervisory function of the Court can be exercised only on a consideration of all the facts and circumstances of the case available to the Court, and not in disregard of any material factor or circumstance having a bearing on the issue. At the same time, it is also clear that in undertaking this exercise the Court cannot embark upon the kind of detailed analysis of the evidence which can appropriately be undertaken only at the conclusion of a judicial trial. Any such attempt would amount to throttling the prosecution or interfering with the ordinary course of justice.

-- S. 494-Withdrawal from prosecution-Application for withdrawal from prosecution not made on any ground of public policy or public peace and interest but merely on grounds directly related to detailed appreciation of evidence-Application, held, in facts and circumstances of case tantamounted to an attempt to throttle prosecution and to interfere with ordinary course of justice-Real question involved being whether prosecution witnesses were mostly of credit and whether circumstances existed for benefit of respondents, such question, held, could only be determined by a proper trial and such function of trial Court could not be allowed to be pre-empted at a preliminary stage by making application for withdrawal from prosecution.

The application for withdrawal from prosecution has not been made in this case on any ground of public policy or public peace and interest, but merely on grounds which are directly related to the detailed appreciation of evidence, namely, that the only role assigned to accused respondent is one of instigation, while no overt act has been alleged against other accused respondent that the incident having occurred owing to enmity between the parties, it was not shown whether accused respondents were in any manner connected with the two opposing fictions, that the number of the jeep in which the assailants are said to have arrived at the spot showed that the vehicle was not a jeep but a Toyota Car, that there was political rivalry between that two respondents and the appellant that respectable witnesses in the locality lave supported the alibi of the two respondents, and that one person bad categorically stated that the two respondents were not members of the unlawful assembly which cart assaulted the deceased. Counsel for the appellant, submitted that this is precisely the kind of exercise which is not to be undertaken for the purpose of deciding whether consent to the withdrawal application should be accorded or not on the ground that there was insufficient or meagre evidence to sustain the prosecution. It was submitted that in this case the first information report was lodged promptly within fifteen minutes of the occurrence, that the two respondents were positively named as being among the assailants, and that the leading role of instigators was assigned to second respondent. It was also pointed out that during the investigation of the case seven eye-witnesses had supported the prosecution version, and accordingly this was eminently a case in which it should have been left to the trial Court to decide whether the prosecution evidence was worthy of credit or not.

Held : In the facts and circumstances of the case the application made by the Public Prosecutor for his withdraws' from the prosecution of the two respondents did amount to an attempt to throttle the prosecution and to interfere with the ordinary course of justice. This is not at all a case where there is no evidence against these respondents such as could sustain a conviction. The real question in the case is whether the prosecution witnesses are worthy of credit and whether there are circumstances the benefit of which should go to respondents. These are questions which can only be determined by a proper trial and this function of the trial Court cannot be permitted to be pre-empted at a preliminary stage by an application of the kind made in this case by the Public Prosecutor.

Abdul Wahab Khan for Appellant.

M. Hayat Junejo, Senior Advocate and M. I. Memon, Advocate-on. Record for Respondents Nos. 1 and 2.

A. X. Lakho, Addl. Advocate-General (Sind) for the State.

Date of hearing : 1st February 1977.

This appeal, by the leave of the Court, is directed against the judgment dated the 25th of October 1976 of the learned Chief Justice of the erstwhile High Court of Sind & Baluchistan. by which the order dated the 27th of July 1976 of the Sixth Additional Sessions Judge. Karachi, was set aside and permission was granted to the public prosecutor to withdraw from the prosecution of respondents Tariq Saeed and Syed Zia Abbas in respect of offences falling under sections 302 and 307, P. P. C. read with section 149, thereof.

The incident, resulting in the deaths of Abdul Hassan and Noor Hassan, brothers of the appellant Mir Hassan, took place at 1-30 p m. in front of the Qadri Hotel situate in Jackson Bazar, Karachi. The first information report was promptly made at 1-45 p.m. by Bakhtiar Khan, brother-in-law of one of the deceased persons, naming eight persons, including the two respondents, as assailants. It was stated that the assailants had come to the spot in a jeep driven by accused Habibur Rehman, in which the respondents were occupying the rear seat. Respondent Zia Abbas was alleged to have instigated his companions to finish their enemies, whereupon accused persons named Habibur Rehman, Rustam Khan and Zabita Khan fired from their respective weapons hitting the two deceased as well as witness Fazal Qayum.

The two respondents were arrested after eleven days of the incident. They were allowed bail by the learned Additional Sessions Judge, Karachi on the ground that no specific part had been assigned to them. In the challan submitted to the trial Court seven persons, including the first informant Bakhtiar Khan were mentioned as eye-witnesses of the incident. Due to various reasons on which it is not necessary to dilate here, no progress could be made in the trial of the case until the 2nd of July 1976, when an application was made by the public prosecutor to withdraw from the prosecution of the two respondents herein, on the ground that they bad' not committed any offence as they were not connected with accused Habibur Rehman who had a long-standing enmity with the complainant party. It was stated that no overt act had been attributed to these respondents and there was no likelihood of their conviction. It was also stated in the application that the prosecution of these respondents had become in expedient. The learned Additional Sessions Judge, after reviewing the available material held, by his order dated the 27th of July 1976, that it was not possible to give any positive opinion on the merits or demerits of the case until such time as the prosecution evidence had been led. He also expressed the view that at the present stage of the case the application for withdrawal appeared to be an attempt to interfere with the normal course of justice with a view to throttling the prosecution, as in the first information report it had been alleged that all the accused persons had gone to the scene of offence armed with rifles, guns and pistols, and that the respondent Zia Abbas was said to have instigated his co accused to finish their enemies. He also stated that on the facts alleged by the prosecution, the provisions of section 149, P. P. C. would appear to be attracted. Accordingly, he refused to give his consent under section 494 of the Code of Criminal Procedure.

Aggrieved by this order of the trial Court, the two respondents filed a revision petition in the High Court, which was accepted by the learned Chief Justice. After referring to the case-law on the point, he concluded that as the section itself did not provide any guidelines, the judicial function implicit in the exercise of the judicial discretion for granting consent would normally mean that the Court had to satisfy itself that the executive function of the public prosecutor had not been improperly exercised, or that it was not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes. While considering the bona fides of the application in relation to these guidelines, the learned Chief Justice took into consideration not only the statement of the Additional Advocate-General to the effect that "the evidence collected by the police indicates that the two applicants have been falsely implicated." but also himself assessed the evidence so as to ascertain whether it would ultimately lead to the conviction of the respondents. and reached the conclusion that there was no scope for their conviction. He also overruled the view expressed by the trial Judge that no opinion could be expressed on the merits of the case until the evidence had been recorded. On this view of the matter, he accepted the revision petition and granted consent to the request of the public prosecutor to withdraw from the prosecution of the two respondents.

Leave to appeal was granted to consider whether in the facts and circumstances of the case permission to withdraw from the prosecution of the respondents was given on correct principles.

Section 494 of the Code of Criminal Procedure reads as follows ;

"Any public prosecutor may with the consent of the Court, in cases tried by jury before the return of the verdict and in other cases before the Judgment it pronounced, withdraw from the prosecution of any person either generally or in respect of arty one or mare of the offences for which he is tried ; and upon such withdrawal

(a) if it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences ;

(b) if it is made after a charge has been framed, or when under this Code no charge is required, he shall be acquitted in respect of such offence or offences."

It will be seen that the section is worded in very wide term, and does not Jay down any principle or guideline on which the consent of the Court may or may not be granted. However, there is consensus of judicial opinion that an order of acquittal or discharge passed under section 494, consequent on the withdrawal of the public prosecutor from the prosecution of any person with the consent of the Court, is a judicial order, and is liable to revision by the High Court if the discretion vesting in the Court to give consent has been improperly or arbitrarily exercised. One may in this connection refer to The King v. Parmanand (A I R 1949 Pat. 222), The King v. Moula Bux (A I R 1949 Pat. 233), Rajat Kanti Shaha v. Idrees Thaukar (1 L R 48 Cal. 1105 ), State of Bihar v. Ram Naresh Pande (P L D 1957 S C (Ind.) 361), Awaz Gul v. Habib Khan (P L D 1959 Posh. 140) and State v. Ensab Ali (1969 P Cr. LJ 320).

The question, however, is as to the principles on which the discretion of the Court in giving or withholding consent should be exercised. We may at once agree with the view expressed by the learned Chief Justice in the order under appeal, that for the purpose of exercising this discretion, it is not necessary that the trial Court mast first record all the available evidence, as the discretion can certainly be exercised on the basis of the available material, even though evidence may not hive been judicially, recorded by the time the application for withdrawal is made. Once the investigation of a case has been completed the Court as well as the parties become aware of the evidence that would be forthcoming at the trial, and, therefore, it is not correct to say that for the purpose of giving consent under this section that Court must wait until it has recorded the evidence.

Section 494 is an enabling provision, and vests in the public prosecutor the initiative and the discretion to apply to the Court for its consent to withdraw from the prosecution of any person What the Court has to determine in such a case, for the purpose of giving consent, is whether the general executive discretion given by law to the public prosecutor has not been improperly exercised or that it is not an attempt to interfere with the normal course of justice for reasons not related to the public interest. The application for withdrawal can be made on many possible grounds which may include the in expediency of prosecution on grounds of public policy or in the interest of public peace, or the undesirability of permitting the a prosecution to continue where there is insufficient or meagre evidence to justify a conviction. In making such an application the public prosecutor may legitimately be instructed by the Government which, under the legal system obtaining in Pakistan, is responsible for the prosecution of all cognizable offences. The discretionary power having been vested in the public prosecutor by the statute, the Court act, so to say, in a supervisory capacity, to see that the power is not abused in any manner exercised arbitrarily Ana contrary to the public interest so as to amount to an interference with the ordinary course of justice. The Court must therefore satisfy itself that there do exist he record grounds to sustain the reasons advanced by the public prosecutor for his withdrawal from the prosecution. It is clear that this supervisory function of the Court can be exercised only ors a consideration of all the facts and circumstances of the case available to the Court, and not in disregard of any material factor or circumstance having a bearing on the issue. At the same time, it is also clear that in undertaking this exercise the Court cannot embark upon the kind of detailed analysis of the evidence which can appropriately be undertaken only at the conclusion of a judicial trial. Any such attempt would, in our opinion, amount to throttling the prosecution or interfering with the ordinary course of justice.

The application for withdrawal from prosecution has not been made in this case on any ground of pubic policy or public peace and interest, but merely on grounds which are directly related to the detailed appreciation of evidence, namely, that the only role assigned to respondent Zia Abbas is on of instigation, while no overt act has been alleged against Tariq Saeed, that the) incident having occurred owing to enmity between the parties, it was not shown whether Zia Abbas and Tariq Saeed were in any manner connected with the two opposing factions, that the number of the jeep in which the p assailants are said to have arrived at the spot showed that the vehicle was not a jeep but a Toyota Car, that there was political rivalry between the two respondents and the appellant Mir Hassan ; that respectable witnesses in the locality have supported the alibi of the two respondents, and that one person by the name of Muhammad Idrees had categorically stated that the two respondents were not members of the unlawful assembly which had assaulted the deceased. The learned Chief Justice has observed, after a fairly detailed analysis of the evidence, that "it cannot be said that benefit of these facts and circumstances is not admissible to the applicants", ' if in the ultimate analysis there is no scope for the prosecution to achieve their convictions".

While Mr. Muhammad Hayat Junejo, the learned counsel for the respondents, sought to support these conclusions of the High Court by a detailed analysis of the available evidence, Mr. Abdul Wahab Khan, learned) counsel for the appellant, rightly submitted that this is precisely the kind of exercise which is not to be undertaken for the purpose of deciding whether consent to the withdrawal application should be accorded or not on the ground that there was insufficient or meagre evidence to sustain the prosecution. He submitted that in this case the first information report was lodged promptly within fifteen minutes of the occurrence, that the two respondents were positively named as being among the assailants, and that the leading role of instigator was assigned to respondent Zia Abbas. He also pointed out that during the investigation of the case seven eye-witness had supported the prosecution version, and accordingly this was eminently a case in which it should have been left to the trial Court to decade whether they prosecution evidence was worthy of credit or not.

Having considered the submissions made by the learned counsel for the parties, we are of the view that in the facts and circumstances of the case the application made by the public prosecutor for his withdrawal from the prosecution of the two respondents did amount to an attempt to throttle the prosecution. This is not at all a case where there is no evidence against these respondents such as could sustain a conviction. The real question in the case is whether they prosecution witnesses are worthy of credit and whether there are circumstances the benefit of which should go to respondents. These are question which can only be determined by a proper trial, and this function of the trial court cannot be permitted to be preempted at a preliminary stage by an application the kind made in this case by the public prosecutor.

Accordingly, we would accept this appeal, set aside the order of the High Court and restore that of the trial Court. As the trial has already been inordinately delayed. we direct that it shall now commence without further .delay and be concluded expeditiously after a day-to-day hearing.

S. A H Appeal accepted.