P L D 1956 Karachi 385 (PLP)

VELLANI, J.‑This case has been referred to us under section 438, Criminal P. C. by the learned Sessions Judge of Hyderabad as an instance of consent having been improperly given by the Special Magistrate, Hyderabad, to the withdrawal of the prosecution under section 494, Criminal P. C. after charges had been framed against the 14 accused persons for offences under sections 147, 148 151, 307, 436, 332 335, 427 and 435, all read with section 149 of the Pakistan P. C. Upon these charges being framed, the accused had applied to the Sessions judge for bail, but having regard to the nature and gravity of the charges, and the danger of accused persons absconding, he refused on 30th March 1951 to enlarge them on bail. The prosecution was in respect of the incidents which took place on Ashura Day which fell on 23rd October 1950, outside Chawri Police Station, Hyderabad, which culminated in serious rioting, injury to police officers and men, setting fire to the Police Station building and the record room, and the firing by the police to disperse the riotous mob. It is not necessary to narrate the incidents in detail because it is not the case of anyone that there was not evidence prima facie to support the charges which the Special Magistrate framed. On 1st April 1951, the learned A. P. P. conducting the crow prosecution, made the following application :‑ "It is prayed on behalf of the Crown as follows : That the District Magistrate, Hyderabad, has received orders from the Government of Sind stating that ` all the accused in the aforementioned case have given an undertak ing that they will in future behave themselves and have further promised that they will not indulge in anti‑social activities. Government have as a gesture of good‑will, which it is hoped will be appreciated, decided to withdraw from the prosecution. It is therefore prayed that this Honourable Court will be pleased to permit withdrawal of, the case against all the accused on consideration of the following grounds:‑ (1) that the accused have undertaken to behave properly; (2) that the prosecution is withdrawn as a gesture of good‑will on the part of the Government towards the accused," On this, the learned Special Magistrate made a lengthy order on 2nd April 1951, the concluding part of which reads as follows :‑ "As I am invested with powers under section 30 of the Criminal P. C., the case was being tried by me. The case is at the stage of further cross‑examination after charge, when the Assistant Public Prosecutor, Hyderabad, has presented this application for withdrawal of the case against all the accused. I have heard the Assistant Public Prosecutor on the merits of the application. I am of the opinion that neither "Public Policy" nor "Administration of justice" nor "Interests of the State" can be the grounds on which withdrawal of this case can be permitted. There cannot be graver danger to peace and tranquility than this riot which lasted for over 4 hours, in which public buildings were set on fire, injuries were caused to 30 public servants with a view to deter them from discharging their duties, attempt was made on the life of the District Magistrate with the avowed object of breaking the morale of public authorities and coercing them into submission to surrender the hand of the alleged kidnapper Bilawal to the rioters who wanted to butcher him. The Assistant Public Prosecutor does not concede that his case is suffering from any weakness so as to be incapable of ending in conviction. The Assistant Public Prosecutor informs me that he was not consulted at any time regarding withdrawal prior to the order authorizing him to make a move for withdrawal. I have tried to satisfy myself by looking at the Government orders, and I find that even the District Magistrate has not been consulted by the Govern ment. So then the only point for consideration is‑whether the assurances given by the accused to the Government about their future good behaviour and abstinence from indulging in anti‑social activities is a good ground and sufficient ground for withdrawal. According to me, the Government is custodian of law and order. If the Government is satisfied with the assurances, and if the Government wants to show a gesture of good‑will which presumably they have shown for the better mainte nance of law and order for the future, I think Government know their job better. And I do not wish to interfere in their discretion. In view of this, I consider it to be a fit ground for allowing withdrawal. Accordingly I acquit all the accused of the offences with which they stand charged under section 494, Criminal P. C., and direct that they be set at liberty forthwith." In the case of Fakirch and Ramkrishin v. Murad Umer and others (I L R 1941 Kar. 32), this Court has held that consent within the meaning of section 494 means a consent freely given by a free and independent Magistrate, who has not surrendered his authority or discretion to his administrative superiors or the executive Government. That case also held that the Magistrate must give the consent judiciously upon consideration of all the relevant circumstances, in the exercise of his own judicial discretion. The application of the learned Assistant Public Prosecutor clearly shows that he did nothing more than transmit to the learned Special Magistrate the decision of the Government in the form of instructions he had received through the District Magistrate, and the last paragraph of the order of the learned Special Magistrate shows that he was in terror of the executive authority and himself exercised no discretion whatever in the matter. He had then no judgment left for he was led to regard the situation as one in which he would be interfering with the discretion of Government, if he refused his consent. The duty of considering whether there are proper grounds for the withdrawal of a case rests with the Public Prosecutor, and it is his responsibility to consider whether there are proper grounds that the case should be withdrawn in the interests of justice. The law does not permit of any shifting of that duty. Again in Emperor v. Milanmal Hardasmal and another (A I R 1943 Sind 161), following the case in (A I R 1940 Sind 233), this Court has held that it is impro per for a Public Prosecutor to tell or show to a Magistrate the instructions of a District Magistrate for the withdrawal of a case, and thereby bring improper pressure to bear upon him. The conduct of the learned Assistant Public Prosecutor in quoting the very words of his instructions in his application was designed to bring about improper pressure. It succeeded so well that the Special Magistrate substituted the discretion of the Government for his own. An attempt was made by the learned advocate who appeared for some of the accused, to call into aid such expressions as "Public Policy", "reasons of State" and "interests of Administration" as good grounds for supporting the Magist rate's consent to the withdrawal of the case. These were considered in the case of Emperor v. Sitaldas (A I R 1943 Sind 109 & A I R 1943 Sind 161). They are nebulous expressions designed to cover acts of interference of which we have in this case such a glaring example‑with proper judicial exercise of a discretion vested by law in the trial Magistrate. It was rightly not urged before us for the Crown, that it was a proper exercise of the Magistrate's discretion to consent to withdrawal of prosecution against a person accused of serious crime, on the ground that the accused person had given an undertaking to the Government to behave himself in future and not indulge in anti‑social activities, and that the Govern ment as a gesture of good‑will to the accused wished that the prosecution should be withdrawn, because the tendency of such a ground to undermine the entire administration of justice in criminal cases is manifest. The Code provides for lenient treatment of accused or convicted persons in suitable cases and Magistrates have a judicial discretion. in this regard. Indeed even the Government have powers in law to deal with such cases at the prescribed stage, without expressing, its desire in matters sub‑judice or resorting to action which tend to undermine the independent exercise of judicial discretion by the judiciary. We consider improper the consent given by the Magistrate to the withdrawal and the consequential acquittal of the accused, and we set them aside. The case will now proceed according to law. This order applies only to those accused who have been served with notice of this reference, and the cases of those not served will be considered separately when they are served. K. B. A. Reference accepted.