P L D 1959 (W (PLP)

The P. P. also made the following statement in Court the same day :‑ " I am authorised by the District Magistrate Kohat to withdraw from the prosecution or the accused in the case noted on reverse and I therefore request that may be allowed to withdraw the case pending against the accused under section 494 Cr. P. C. ". Thereupon the Magistrate passed an order to the following elect :‑ " Accused on bail is present. P. P. present. On the written request of the P, P. and his statement recorded above, I allow the P. P. to withdraw the case under section 302 P. P. C. from the Court pending against the accused. The accused is therefore discharged under section 494 Cr. P. C. "

3. Aggrieved by the order of the Magistrate, Awaz Gul, a brother of the deceased, submitted a revision petition to the' Sessions Judge praying for setting aside the order of discharge and for the trial of Habib Shah accused on charge of murder. The learned Sessions Judge, while dismissing the petition, observed :‑ " The Magistrate had unfettered powers to exercise his discretion in allowing the withdrawal of the case to the P. P. In exercise of the powers, the Magistrate had allowed the withdrawal under section 494 Cr. P. C., as a result of which he had discharged the accused. I do not see anything on the record or in the order of the Magistrate that he had exercised this discretion arbitrarily, and therefore I do not think it a fit case even to admit it for full hearing. The revision petition is dismissed in limine."

4. Awaz Gul has now come up to this Court on the revision side. It is contended by his counsel Pir Masoom Shah, that the Magistrate in granting permission to withdraw from the prosecution of the accused did not exercise his discretion in a judicial manner and as such the order was liable to be set aside.

5. The only question calling for determination is, whether the order of the Magistrate passed under section 494 Cr. P. C. is a proper one.

6. Relying on Mul Singh v. Emperor (A I R 1923 Lah. 163) the learned Assistant Advocate‑General maintained, that an order of discharge under section 494, Cr. P. C. was not liable to be interfered with by this Court on the revision side, but when his attention was drawn to the fact that in the case cited by him it was an order of acquittal and not an order of discharge which was challenged in the High Court, he frankly conceded that the order was revisable. It is now well‑settled that an order of discharge under section 494, Cr. P. C. is open to revision like any other order of discharge such as passed under section 209 or 253, Cr. P. C., even when the Court is moved by a private person who feels aggrieved by the order.

7. It is not disputed that the language of section 494, " any Public Prosecutor may with the consent of the Court withdraw from the prosecution of any person " is wide enough to give unlimited discretion to the Court concerned, though the dis cretion is to be exercised in a judicial manner. It is true that the initiative is that if the Public Prosecutor, who in the exercise of his executive function has to make an application for withdrawal, but it is equally true that the judicial function implicit in the exercise of judicial discretion for granting or withholding consent is of the Court, which has to satisfy itself that the executive function of the Public Prosecutor has not been improperly exercised, and that it is not an attempt to interfere with the normal course of justice for illegitimate purposes, or for circumventing the law. The section gives no indication, as to the grounds on which the public prosecutor may make the application or the considera tions on which the Court is to grant its consent. However, the order under section 494, on the granting of the consent being an order of " discharge " would attract the applicability of correction by the High Court under sections 435, 436 and 4391 Cr. P. C. It has, therefore, to be admitted that the function of the Court in granting the consent is nothing but a judicial function, and while granting the consent it must exercise the discretion judicially. This discretion is to be exercised with reference to material gathered by the judicial method, otherwise the apparently wide language of section 494 Cr. P. C. would become considerably narrowed down in its application.

8. It is clear from the language of section 494 that in the last analysis the responsibility is of the Court to decide, whether to grant or not to grant consent for Withdrawal, and the discretion can be properly exercised only if the application for withdrawal is considered judicially. Judicial exercise of the discretion means consideration of all the facts and circumstance of the case available to the Court and also of the grounds on which the withdrawal is sought. If the public prosecutor with holds from the Court the grounds on which his application for withdrawal is founded, or the Court does not avail of the benefit of considering the facts and circumstances of the case, it obviously cannot exercise its discretion judicially. It, therefore, follows that in the absence of any ground for with drawal or on the failure of the Court to weigh the material collected by the Investigating Agency or brought on the record, the abuse of the process of law cannot be prevented, and when the case is brought to the notice of the High Court it will not have before it the requisite material to give a decision. The very word " Consent " clearly indicates, that it is not to be given lightly on the application of the public prosecutor without a careful and proper scrutiny of the grounds on which the application is based. No other interpretation of the wore occurring in section 494 is permissible, and to put any other construction on it would be tantamount to placing unreasonable, limitation on the meaning of the term.

9. It will have been observed that in order to determine the impropriety of the withdrawal as amounting to abuse. or to an interference with the normal course of justice the Court concerned is bound to look into and to consider the evidence of the case in the light of the grounds given in the application for withdrawal. If the Court is satisfied, after the scrutiny of the record, that the grounds for withdrawal are sufficient and reasonable, it will grant consent. If, however, the Court finds the grounds as insufficient or unreasonable, or in its opinion the withdrawal would lead to an interference with the course of justice, it will withhold its consent.

10. Section 494 Cr. P. C. is normally intended to be applied in cases where either the evidence is insufficient to secure a conviction, or where the parties have compromised the case, or where other similar circumstances exist. It is not intended to be used by the Executive Authorities, or the public prosecutor for the purpose of securing the acquittal of an accused person without any cogent reason. If a public prosecutor is given a free license to apply for withdrawal without disclosing the grounds, and the Court is invested with unlimited power to grant consent arbitrarily without recording any reason, the result is not difficult to imagine.

11. As already pointed out, an order of discharge under section 494 is a judicial order and the Court must record reasons in order to enable the High Court to judge, whether the order of discharge has been rightly made. But that does not mean that if the Court fails to record reasons in support of its consent to the withdrawal, the High Court cannot look into the matter in the exercise of its revisional jurisdiction. It is always open to the High Court, and in some cases it will be even necessary to go into the matter and to judge for itself whether the order of discharge is proper or otherwise.

12. As for the case under revision, it is not at all necessary to consider its facts and circumstances, though one could have said much. The petition can be disposed of on other grounds, which are far stronger. The public prosecutor, as is evident from his statement recorded in Court, withdraw from the prose cution of the accused under the authority of the District Magistrate without showing any ground, whatsoever, for with drawal. The learned Magistrate did not feel concerned to find out, as to why the case was being withdrawn. Apparently, the authority of the District Magistrate who was his superior, was quite sufficient to disarm him of his own power. Without looking into the record of the case and without making use of his own judicial discretion vested in him by law, he granted his consent. And the worst part of the matter is, that he did not record any reason, whatever, for giving his consent. That the learned Magistrate failed to exercise his discretion in a judicial manner and surrendered his own judgment to the judgment of the public prosecutor and the District Magistrate, is not a matter for controversy. He has clearly acted arbitrarily and not judicially, as was required of him. As such, the order of discharge being improper cannot be maintained.

13. In the result, the order is set aside, and the case is directed to be put up before some other competent Magistrate for enquiry according to law. K. B. A./A. H. Petition accepted. Order set aside.