P L D 1983 Lahore 610 (PLP)

This writ petition has been filed to call in question the revisional order of a learned Additional District Judge, Sargodha whereby he set aside the order of a learned Magistrate passed in terms of section 494, Cr. P. C. allowing the withdrawal from prosecution in case F.

1. R. No. 22, dated 12-3-1976, Police Station, Katha Sagral.

2. The facts necessary for the purpose of decision of the present petition are that a case F. I. R. No. 22, dated 12-3-1967, was registered at the instance of Mian Muhammad respondent No. 4 with Police Station, Katha Sagral (now in District Khushab) against the petitioner Ramzan Ali and 9 others under sections 307/149 and 148, P. P. C. After the completion, of investigation police challan was submitted in the Court of a learned Magistrate in July, 1976 but no prosecution witness had been examined till 264-1979 when the permission for withdrawal from prosecution was granted by the learned Magistrate.

3. Thereafter, it appears that the Government of the Punjab in the Home Department, pursuant t9 instructions contained [n Memorandum dated 27-2-1979 allowed withdrawal from prosecution of 33 cases pending in the Court of Mr. Mushtaq Ahmad Khan Niazi, Magistrate Section 30, Jaubarabad, under section 494, Cr. P. C. The learned District Magistrate, Sargodha issued further instructions in terms thereof. In pursuance thereto, the Public Prosecutor gave a statement before the learned Magistrate seeking permission to withdraw from the prosecution. This was allowed by the learned Magistrate on 26-4-1979. Another case F. I. R. No. 21, dated 12-3-1976 was also withdrawn from the Court of the learned Magistrate which had been got registered at the instance of Umar Draz, a co-accused of the petitioner, against the opposites-party. It further appears from Annexure `D' that the State withdrew from prosecution of 33 cases pending in the Court of the said learned Magistrate.

4. Respondent No. 4 Mian Muhammad then filed a revision petition in the Court of Mian Muhammad Nawaz Naikukara, Additional Sessions Judge, Sargodha challenging the order of the learned Magistrate allowing withdrawal from prosecution in case F. I., R. No. 22, dated 12-3-1976. The learned Additional Sessions Judge vide his order dated 9-2-1982 accepted the revision petition, set aside the impugned order and remanded the case to the learned Magistrate, Jauharabad for fresh trial in accordance with law. The reasons which weighed with the learned Additional Sessions Judge for accepting the revision petition and passing the order in terms noticed above were that the learned Magistrate had failed to pass a judicial order briefly stating the reasons for allowing withdrawal from prosecution to show that the matter had been considered by him judicially and that withdrawal from prosecution on mere instructions by a District Magistrate to a Public Prosecutor ought not to be allowed automatically.

5. The learned counsel for the petitioner at the hearing sought to urge that the learned Additional Sessions Judge had committed an error of approach inasmuch as while setting aside the order of the learned Magistrate, be remanded the case for fresh trial in accordance with law. According to him, the effect of this order was that the petitioner would have to undergo the ordeal of an ill-merited trial on the basis of a technicality on the part of the learned Magistrate. According to the petitioner's counsel, the withdrawal from prosecution was based on public policy as is evident from the list Annexure `D' to the writ petition. He relied on the decision of the Supreme Court In re : Saad Shibli v. The State (PLD 1981SC617), justifying. the withdrawal`., from prosecution in the present case. 6. 1 have considered the submissions made from both sides. I had also, called upon the learned Assistant Advocate-General Mr. Khalil Ramday to assist the Court who rendered able assistance. 7. 1 have reached the conclusion on appreciation of facts and circumstances of the case in the light of the law laid down by the Superior Courts that the only fault found with the order of the learned Magistrate was that it lacked reasons showing application of his own independent mind to all the facts and circumstances of the case before allowing withdrawal from prosecution, under section 494, Cr. P. C. This would amount to a case of failure to,, exercise jurisdiction vested in him by law. Therefore, proper order to be passed in such like cases is to remand the case' to the A learned Magistrate to deal with the request of the Government and the District Magistrate and to dispose it off in accordance with law. The learned Magistrate, therefore, will????????? proceed with the matter from the stage at which a request was made for withdrawal from prosecution by the . Public Prosecutor. ??????????? He would decide the matter in the light of the enunciation of law made by the Superior Courts in the following cases :- "(1) Mir Hassan v. Tark Saeed and .2 others P L D 1977 S C 451. (2) Saad Shibli v. The State P L D 1981 S C 617. (3) Nisar Ahmad v. The State anal others P L D 1976 Lah. 1354."

8. In any view of the matter, the order of the learned Additional Sessions Judge is not liable to be sustained as he failed to himself dispose of the matter in terms of section 494, Cr. P..C. and contented himself in point in out the fault with the order of the learned Magistrate and directed him to proceed with the trial of the case.

9. The impugned order of the learned Additional Sessions Judge is therefore, declared to be without lawful authority and of no legal effect and the case is remanded to the learned Magistrate to proceed with the matter C from the stage of withdrawal from prosecution by the State and to. dispose o this request in accordance with law. There will, however, be in the circumstances of the case no order as to costs. M. Y. H. ???????? Petition accepted.