P L D 1971 Lahore 574 (PLP)

Where, therefore, a number of persons were on trial for offences under sections 307/326/325/324/148/149, P. P. C. and the complainant moved an application praying for with drawal of case against accused, it was held that the complainant could not on application moved by him claim as of right that the District Magistrate should have passed an order on that. D. M. Awan for Petitioners. SARDAR MUHAMMAD IQBAL, J. The case against the peti tioners under sections 307/326/325/324/148/149, P.P.C., was pend ing in the Court of the Assistant Commissioner, Chishtian. It was transferred on their application to the Assistant Commissioner, Bahawalnagar. It was subsequently transferred on a petition moved by the complainant to the District Magistrate, Bahawalpur. The prosecution evidence was concluded on the 2nd of November 1970. The complainant moved an application on the 10th of, November 1970, praying for the withdrawal of the case. The learned District Magistrate, sent the file of the case to the District Magistrate, Bahawalnagar, for his opinion on the application. He stayed further proceedings in the matter. The District Magistrate, Bahawalnagar, obtained report of the police and forward it by his order dated the 4th of December 1970, to the District Magistrate, Bahawalpur. On the 11th of December 1970, the District Magistrate, Bahawal nagar, again wrote to the District Magistrate, Bahawalpur, stating: "After careful examination of the case and consultation with the Local Officers (the S. D. M.) I am of the view that withdrawal of the proceedings will not be in the interest of the State. The case should be decided by the trial Court on merits." The petitioners filed a petition under Article 98 on the 19th of January 1971. It was under the impression that the District Magistrate, Bahawalnagar, had ordered the with drawal of the case on the 4th of December and that he reviewed the same by a subsequent order dated the 11th of December which he was not competent to do. They also mentioned in the petition that he had applied for copies of the orders but the same were not made available to him. It was, therefore, directed by the order of this Court dated the 12th of January 1971, that the petitioners be supplied copies of the two orders. The copies have been placed on record. It is manifest that the Writ Petition was filed due to a misunderstanding of the real position. The District Magistrate, Bahawalnagar, had not ordered the withdrawal on the 4th of December and the subsequent order dated the 11th of December was not an order recalling the earlier order.

2. Learned counsel on being apprised of the tenor of the orders sought permission to amend the Writ Petition. The position which he wanted to take by amendment was that the District Magistrate, Bahawalpur, should have dealt with the application made by the complainant himself and that he, in having sent the case to the District Magistrate, Bahawalnagar, has acted beyond the scope of his lawful authority, and con sequently the report of the District Magistrate, Bahawalnagar, was of no legal effect. We did not accede to the request of the petitioners for the reason that even if we had permitted them to amend the petition it would not have made any difference so far as the result of the petition was concerned. The amendment, if allowed, would result in futility. Section 248 of the Code of Criminal Procedure provides for the withdrawal of a complaint. It applies only to offences triable as summons case and does not apply to offences triable as warrant case. There is no provision in the Code of Criminal Procedure under which the proceedings in a warrant case may be terminated on the complainant offering to withdraw his complaint. Section 345 of the Code permits composition in respect of the offences specified therein, some of those are in respect of summons cases while others are about the warrant cases. The Court cannot allow the compounding of an offence which is not compoundable under section 345, Cr. P. C. In specifying some of the offences which can be compounded under the said provision, a clear distinction has been made between the cases which concern individuals and others which have reference to the interests of the State. The petitioners are being proceeded against under sections 307/326/325/324/148/149. P. P. C. sections 324 and 325 are compoundable under sub section (2) of section 345 with the permission of the Court before which any prosecution for such offences is pending. The offences under section 302/326 are not compoundable. The l complainant therefore, could not on an application moved by him claim as of right that the District Magistrate should hive passed an order on that. The only other provisions which permit withdrawal of prosecution are contained in section 333 and section 4941 of the Code. Power is given under section 333, Cr. P. C. to the Advocate‑General of entering a nolle prosequi which is an information laid before the Court on behalf of the Govern ment that the prosecutor will proceed no further in his action. The plea of nolle prosequi can be entered only in a trial before the High Court. Section 494 of the Code empowers the Public Prosecutor to withdraw from the prosecution in all cases before the judgment is pronounced. The Public Prosecutor, therefore, can alone approach the Court for the withdrawal of the case and in the absence of any application no action under section 494 could be taken in the instant case by the learned District Magistrate. The learned counsel for the petitioners pointed out that the Prosecuting Deputy Superintendent of Police was conducting the proceedings before the District Magistrate and h‑, was agreeable] to the withdrawal, but had asked the District Magistrate, Bahawalpur, to obtain opinion of the District Magistrate, Bahawalnagar. The P. D. S. P. is not a Public Prosecutor, because under subsection (1) of section 492 of the Code the provincial Government is to "appoint, generally, or in any case, or for any specified class of cases, in any local area, one or more officers to be called Public Prosecutors". The P. D. S. P. had not been so appointed and he was, therefore, not a Public Prosecutor. Thus it is clear that the application made by the complainant to the District Magistrate, Bahawalpur, was not made under any provision of the Code, and the latter was not justified in law to have sought any opinion from the District Magistrate, Bahawalnagar. The reports submitted by the District Magistrate, Bahawalnager, on the 4th of December and then on the 11th of December have no legal value and they could not furnish a valid basis for any action. The learned counsel for the petitioners pointed out that the complainant had also moved an application to the Public Prosecutor. It is, how ever, admitted that the Public Prosecutor has not so far moved any application to the District Magistrate, Bahawalpur. If he moves any such application, the District Magistrate, Bahawalpur will doubtless dispose of that application strictly in accordance with the provisions of section 494 of the Code of Criminal Procedure, without in any way being influenced by any considera tion foreign to the provisions of the section aforementioned.

3. Subject to the above remarks, this petition is dismissed in limine. K. B, A. Petition dismissed.