Find a Lawyer

Criminal Revision Application No. 25 of 1983, heard on 26th October, 1983.

--- S. 494--Penal Code (XLV of 1860), Ss. 307/395/147/148 & 332/ 353/149/114-West Pakistan Arms Ordinance (XX of 1965), S. 13 (d)-Conflict and quarrel between two sections of population with gathering of 1,100 people-Brick batting a police personnel on duty causing injuries-Withdrawal of case by Government under S. 494, Cr. P. C.-Justification-Government decision to drop case impelled by spirit of maintaining peace and harmony between two warring sections of population-No material on record to show that inten tion of Government was mala fide or that Government by withdraw ing case wanted to favour one section of population-No untoward incident eversince day of incident occurred between two quarrel ling parties-One section of population already shifted from area---Held, since emotion bad subsided and tension no longer existed between parties and situation had become normal, it was in the interest of public peace and maintenance of harmonious relations between parties that ugly chapter of conflict and quarrel between them should be closed rather than be kept alive by pursuing case Withdrawal of case by Government was held to be justified in circumstances.

--- S. 494-Penal Code (XLV of 1860), Ss. 307/395/147/148 & 332/353/149/114-West Pakistan Arms Ordinance (XX of 1965), S. 13 (d)-Conflict and quarrel between two sections of population with gathering of 1,100 people- Brick-batting on police personnel on duty causing injuries-Withdrawal of case by Government-Justi fication of withdrawal on merits of case-Injuries caused to police personnel, though certified to have been caused by blunt substance yet none of accused said to be carrying such weapon at time of occurrence-Leader of procession said to be armed with gun and had fired at police party but no gunshot injury was discovered on person of any police force-No evidence present to indicate which particular accused out of 47 had snatched gun from police party-- Held, in confusing situation, as it was, it would be difficult to establish identity of accused as being assailants -Accused could not be proved to be vicariously liable as it was hard to prove common object of such mammoth gathering-Case not proved against accused persons-Application by Government for withdrawing case under S. 494, Cr. P. C. was, therefore, based on good grounds in circumstances.

--- S. 494--Penal Code (XLV of 1860), Ss. 307/395/157/148 & 332/353/149/114-West Pakistan Arms Ordinance (XX of 1965), S. 13(d)-Conflict and quarrel between two sections of population with gathering of 1,100 people- Brick batting on police personnel on duty causing injuries-Request of withdrawal of case by Govern ment-Justification on merits of case F. I. R. lodged by S. H. O. of Police Station and alleged to have been injured by crowd- Witnesses cited in support of case from police department-Not a single individual from aggrieved section of population ventilating grievance either by complainant or offering himself as witness- Request for withdrawal of case corning from administrative depart ment of police force-Held, case being wholly a police case, it would not be justified to decline withdrawal of case in which all witnesses - including complainant were from police department--- Refusal to allow withdrawal of case, in such circumstances, would tantamount to thrusting of justice on unwilling party-Withdrawal of case was, therefore, justified in circumstances.

S. Zawwar Hussain Shah, Asstt. A.-G. for the State.

Abdul Latif Gabol for Respondent.

Date of hearing : 26th October, 1983.

This Revision Application is directed against the order of Sessions Judge, Sukkur, passed on 2nd June, 1983 whereby the learned Sessions Judge declined to give consent to withdrawal of the Sessions Case No. 38/83, State v. Moulvi Abdul Shakoor and 47 others.

Briefly stated the facts of the case are that on 4th August, 1982 Abdul Hakeem Lashari S. H. O. Ubauro lodged F. I. R on behalf of the State, alleging therein that the Deputy Commissioner, Sukkur had come to settle the dispute of religious nature between Qadianis on one band and local Maulvis on the other. Accordingly, the S. H. O. alongwith his subordinate staff were on duty to protect the houses and the mosque of Qadianis. At about 7-00 p. m., a crowd of 1100 to 1200 people went in a procession to Masjid Quba raising slogans against the President of Pakistan and the Administration. The procession was led by Maulvi Abdul Shakoor, Maulvi Majeed, Maulvi Muhammad Ramzan Shah and Rahmat Shah who incited the crowd to destroy the mosque of Qadianis and set their houses on fire and kill them as they were Kafirs. As a result of the instigation, some people in the procession pelted brickbats at the police personnel on duty causing injuries to some of them; includ ing the S. H. O. On this the S: D. M. ordered the use of teargas against the miscreants, whereupon the procession dispersed. However, it soon reassembled at the gate of Muhammadi Mosque. This time Abdul Shakoor who was at the head of the procession and was armed with a single barrel gun was exhorting the people forming the procession to eliminate the dogs' of Government. The said Maulvi was further alleged to have fired at the police party. The people in the procession also attacked the police and snatched teargas gun and caused injuries to several Police Constables. Seeing this the Sub-Divisional Magistrate ordered lathi charge, whereupon the procession dispersed. As many as 44 persons were apprehended by police and were booked for trial under sections 307, 395, 147, 148 and 332, 353, 149, 114, P. P. C., and section 13(d) of the Arms Ordinance.

In view of the Government's decision to withdraw the above case, the District Magistrate, Sukkur was directed by a teleprinter message to advise the District Public Prosecutor to move an application for with drawal. Accordingly, the District Public Prosecutor made an applica tion under section 494, Cr. P. C. inter alia on the following grounds: -

(1) There was huge crowd of 1,100 to 1,200 people in the procession with resultant disorder and confusion all round and, therefore, it is difficult to fix the responsibility of the injuries sustained by police personnel on any of the accused.

(2) According to the medical evidence, the injuries suffered by the prosecution witnesses have been caused by hard and blunt substance like lathis but the accused who have been challaned were not carrying such weapons at the time of occurrence.

(3) The accused Maulvi Abdul Shakoor was armed with a single barrel gun and had fired from the gun at the police party, yet none from them had any gunshot injury.

(4) All the witnesses cited in support of the prosecution are police personnel and there is no private person to pursue the case against the accused.

(5) There is no evidence to show as to who had snatched teargas gun from the police and, therefore, it would be difficult to prove the charge under section 395, P. P. C.

(6) The Government has decided to drop the case against the accused on the ground of public policy.

The learned Sessions Judge was, however, not impressed by the arguments of the learned D. P. P. and as such he dismissed the applica tion by a long order for reasons specified therein. The Government has preferred this Revision Petition against the said order.

Mr. Zawwar Hussain Shah, A. A.-G, has made his submission in support of the application. Mr. Abdul Latif Gabole representing the respondents/accused was also heard. However, no one appeared to oppose the Revision Application.

The teleprinter message received from the Government reads as under: -

From ... Homesecy Government of Sind Kyc.

To ... The District Magistrate, Sukkur.

No. VI(31) SOJ 383 Karachi, dated 20th April, 1983.

Withdrawal of case under section 307/395/332/147/149/114, P. P. C., Crime No. 74/82 P. S. Ubauro, District Sukkur. .

Reference your letter No. JB/b/2135/83, dated 14th April, 1983 on the subject noted above (.)

The Government of Sind are pleased to direct the withdrawal of the above case. The District Public Prosecutor, Sukkur may be advised to trove .an application under section 494, Cr. P. C for withdrawal of the above case in the concerned Court and report compliance,

Homesecy"

It appears from the above teleprinter message that while advising the District Magistrate for withdrawal of the case, no reason has been assign ed by the Government for the withdraw. As stated above, one of the grounds on which the application for with has been based is that Government has decided to drop the aforesaid case on ground of public policy. 1n support of the application, the learned A. A. G. has placed reliance; on the case reported as Sadd Shibli v. The State (P L D 1984 S C 617). By the reported case, Supreme Court bad disposed two cases, namely Sadd Shibli v. The State and another and State v. Pattan and others. In the first case, one Matloobul Haq, the brother of deceased Isharul Haq being dissatisfied with the order of withdrawal of the case moved a revision petition in the High Court which was accepted by the learned Single Judge of the High Court, following the dictum laid down in the case of Mir Hassan v. Tariq Saeed (P L D 1977 S C 451). The order of the High Court was challenged in appeal filed before the Supreme Court.

In the second case on the instructions of the Government, the learned D. P. P. moved an application for withdrawal of the case, which was, however, disallowed by the learned Sessions Judge. The revision filed against the order of the Sessions Court was rejected by the High Court. Thereafter the appeal was filed in the Supreme Court, which was ordered to be heard together with the appeal in the case of Sadd Shibli.

It appears that the learned Supreme Court after reviewing a mass of case-law examined the orders passed in both the cases in the light of the re quirements of section 494, Cr. P. C. The Supreme Court was pleased to observe: -

"It follows therefore that, on disclosure of satisfactory ejective grounds relatable to public policy or public peace, and administra tion of justice an application under section 494, Cr. P. C. for seeking Court's permission to withdraw from the prosecution can be filed. The Court's duty is to ensure that such a course" is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes."

If the facts of the present case are judged in the light of the above authority, it would become apparent that application for withdrawal o the case was justified. The Government decision to drop the case was obviously impelled by the spirit of maintaining peace and harmony between the two warring sections of the population. There was no material on the record to show that the intention of Government was mala fid or that the Government by withdrawing the case wanted to favour one section of population at the cost of the other section of population. It is stated at the bar that no untoward incident has occurred between the two quarrelling parties eversince the day of occurrence and complete calm prevails in their village. It is further stated that the people belonging to Qadiani sect have already shifted from the said village. More than year has elapsed since the occurrence. Since the emotions have subsided and tension no longer exists between the parties and the situation ha become normal, it would certainly be in the interest of public peace and maintenance of harmonious relations between the parties that the ugly chapter of conflict had quarrel between them should be closed rather than be kept alive by pursuing the case. It seems the learned Sessions Judge, bas not considered this aspect of the case.

Even on merits, the application moved by the learned D. P. P. is based on the good reasons. It is unlikely that the case will be proved against the accused. In this connection, it is worthy of note that although the injuries caused to the police personnel are certified to have been caused by blunt substance like a lathi, yet none of the accused was said to be carrying such weapon at the time of occurrence. Furthermore. Maulvi Abdul Shakoor was said to be armed with a gun had fired at the police party but no gunshot injury is discovered on the person of any of the police force. There is also no evidence to indicate which particular accused had snatched teargas gun from the police party. In the confusing situation as it was, it would be difficult to establish the identity of the accused as being the assailants. The accused could not even be proved to be vicariously liable as it was hard to prove common object of such mammoth gathering.

Apart from above, it is wholly a police case, as not only the F. I. R. has been lodged by the S. H. O. but also all the witnesses cited in support of the case are from Police Department. Not a single individual from the aggrieved section of population, namely: Qadiani Sect has come forward to ventilate his grievance either by complaint or offering himself as a witness. Since the request for withdrawal has come from Home Department which in the Administrative Department of Police Force, it would not be justified to decline withdrawal of the case in which all witnesses; including the complainant are from Police Department. The refusal to allow withdrawal of the case in such circumstances w Id tantamount thrusting of justice on the unwilling party.

For the foregoing reasons, I would allow the revision petition and set aside the impugned order passed by the learned Sessions Judge. I would further give the requisite permission to withdrawal of the case.

M. Z. M. Revision accepted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.