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Criminal Revision Application No.52 of 1983, decided on 2nd November, 1985.

‑‑‑S.494‑‑Penal Code (XLV of 1860), S.420/406/34‑‑Withdrawal of case against accused‑‑Maintainability of application before Magistrate for withdrawal‑‑Magistrate issuing process on submission of challan‑‑Accused absconding and Magistrate repeating non‑bailable warrants which could not be executed‑‑All these facts showing that cognizance had been taken by Magistrate‑‑‑ Contention that no cognizance had been taken by Magistrate and application for withdrawal was not maintainable, repelled in circumstances.

Abdul Rehman Bajwa v. Sultan and 9 others P L D 1981 S C 522 ref.

‑‑S.494‑‑Penal Code (XLV of 1860), S. 420/406/34‑‑Withdrawal of se‑‑Accused fugitive from law‑‑State making application for withdrawal to case against accused without giving reasons as to why proceedings The dropped under S.494, Cr.P.C.‑‑Magistrate allowing said application without applying his mind and without satisfying himself in interest of justice‑‑Order of Magistrate allowing withdrawal set aside and case remanded for retrial‑‑Held, Court had to apply its mind to facts of case and application for withdrawal was not to be accepted merely because Government had passed an order.

Dhani Parto v. Munthar and another P L D 1978 Kar. 371 ref.

Abdul Qadir Halepota for Applicant.

Siddique Mirza and Makhdoom A. Wali for Respondents.

Date of hearing: 27th October, 1985.

This application has been filed against the order of A.C.M. Karachi allowing, application under section 494, Cr.P.C. and thereby allowing withdrawal from prosecution of case pending against' the respondent.

The facts in brief are that an F.I.R. was registered at Police Station S.I.T.E. against the respondents 1 to 5 at the instance of the applicant, wherein it was stated that the complainant was cheated of an amount of Rs.20,000 by the respondents 1 to 5 for buying cattle for the applicant from Punjab. After usual investigation the case was challaned under section 420/406/34, P.P.C. in the Court of A. C. M., Karachi. The respondents 1 to 5 did not attend the Court and they all along remained absent. They were declared as absconders and proclamation was issued. On 5‑12‑1982 the learned A.P.P. filed an application under section 494, Cr.P.C. in the trial Court which read as follows:‑

"It is prayed on behalf of the State that this Hon'ble Court be pleased to allow the undersigned to withdraw from the prosecution the above‑noted case on among others the following grounds:‑

(1) That the Government of Sind vide its Letter No.VI(53) S.O.J. /82 has been pleased to withdraw the above‑said case from the prosecution (copy of the same is attached herewith for your kind perusal).

(2) That the alleged incident took place on 8‑2‑1982 but it would seem no. P.W. has been examined as yet.

(3) That under the circumstances it would be futile to proceed with the matter."

On this application the learned Magistrate passed the following order:‑

"Accused are absconding. A.P.P. had moved an application for withdrawal of the case under section 494, Cr.P.C. under the direction of Government of Sind, Home Department vide Letter No.VI (53) S O J/82, dated 1‑12‑1982. Advocate for complainant raised objection that withdrawal application is not considerable without securing the presence of accused persons. This issue has been got clarified by the A.P.P. who has opined that personal attendance of the accused persons is not necessary. I, therefore, allow and accept withdrawal application submitted by the A.P.P."

The applicant being aggrieved has filed the present application for setting aside the impugned order.

I have heard the learned counsel for the parties and Mr. Makhdoom Abdul Wali for the State.

The learned counsel appearing on behalf of the respondent has stated that the case against the respondent was false but this question is beyond the point. The question involved in present case is whether the order of the learned Magistrate allowing withdrawal of the case under section 494, Cr.P.C. is proper

The next contention raised by the learned counsel for the respondent is that no cognizance has been taken by the learned Magistrate, therefore, this application is not maintainable. He has relied upon the case of Abdul Rehman Bajwa v. Sultan and 9 others reported in P L D 1981 S C 522. This contention has no force. The case cited by the learned counsel is distinguishable. In the present case the Challan has been submitted in the Court of learned Magistrate. The learned Magistrate issued process against the accused. The Diary, dated 24‑6‑1982 of the Court shows that accused were absconding. Advocate for the complainant moved an application requesting that warrants be sent through Deputy Commissioner Karachi West. The learned Magistrate, even repeated non‑bailable warrants but the warrants could not be executed. All these facts would show that the cognizance had been taken by the learned Magistrate; and, therefore, this contention has no force.

.

The next contention of the learned counsel for the private respondents is that at the most the case may be remanded to the learned Magistrate if he has not given any reason in support of his order so that he may record the reasons. In the instant case no reasons had been advanced by the learned Magistrate in accepting the application and on the statement of the A.P.P. he accepted the withdrawal of the application. The cognizance has been taken by the Court. The accused were not appearing and they were fugitive from law and instead of taking steps to procure the attendance of the accused the impugned order has been passed. The Court has to apply its own mind to the facts of the case and application is not to be accepted merely because Government has passed an order. No cogent reasons have been given by the Government as to why the proceedings be dropped under section 494, Cr.P.C. Similarly, the learned Magistrate has not applied his mind before granting such application. The learned Magistrate should have satisfied himself in the interest of justice before allowing such application.

The learned counsel has referred to a case of Dhani Parto v. Munthar and another reported in P L D 1978 Kar. 371. The learned counsel appearing on behalf of the State has also not supported the Impugned order. In the result, I accept this application and set aside impugned order and remand the case for trial.

The application is accepted as such.

M. Y.H.

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