P L D 2019 Balochistan 12 (PLP)

ZAHEER-UD-DIN KAKAR, J.--Through this petition, the petitioner assails the validity of order dated 17.08.2017 "the impugned order", passed by the Special Judge, Anti-Terrorism Court-II, Quetta "the trial Court", whereby an application for withdrawal of case FIR No.10 of 2016 filed by the Special Public Prosecutor was dismissed.

2. Precisely stated facts of the case are that on 21.5.2016 at about 4:00 a.m., the complainant Shakarullah IP/SHO, Police Station Counter Terrorism Department (CTD), Quetta along with other CTD officials under the supervision of SSP CTD, upon receiving spy information, conducted raid at the house of petitioner (Momin Khan) situated at Jungle Pir Alizai and recovered a huge quantity of arms and ammunitions. Consequently, FIR No.10 of 2016, under Section 13(b)(d) Arms Ordinance, 1965 read with Sections 4, 5 Explosive Substances Act, 1908 and section 7 of Anti-Terrorism Act, 1997 was registered at Police Station CTD Balochistan, Quetta.

3. After completion of investigation, challan of the case was submitted before the trial Court, charge was framed and the prosecution produced its three witnesses. Meanwhile, on 06.08.2017, the Special Public Prosecutor (SPP) filed an application for withdrawal of case, the trial Court after hearing the learned counsel for the parties, dismissed the application vide impugned order, hence this petition.

4. Learned counsel for the petitioner contended that the trial Court while passing the impugned order dated 17.8.2017 failed to appreciate that in the cases/FIRs where the State is complainant, the Chief Minister, being Chief Executive of the province is competent to withdraw the State Case under Section 494 Cr.P.C; that the findings arrived at by the learned trial Court is the result of mis-reading-and mis-application of law, as such, the impugned order is liable to be set aside.

5. Learned DPG appearing on behalf of the State opposed the petition, defended the impugned order and contended that the petitioner has no locus standi to file the instant petition.

6. We have heard the learned counsel for the parties and gone through the record, which reflects that, pursuant to letter No.S.O(Legal-I)22/2014/1178- 79 dated 21.06.2017 of Prosecution Department Balochistan, the SPP filed an application for withdrawal of the case FIR No.10 of 2016. Here, it is necessary to reproduce Section 494 Cr.P.C, which reads as under: "

494. Effect of withdrawal from prosecution. Any Public Prosecutor may, with the consent of the Court, before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of anyone or more of the off nces for which he is tried, and upon such withdrawal: (a) If it is made before the a charge has been framed the accused shall be discharged in respect of such offence or offences; (b) If it is made after a charge has been framed, or when under this Code no charge is required, he shall be acquitted in respect of such offence or offences.

7. Persual of the above provision of alw shows that a move for withdrawal of prosecution under section 494 Cr.P.C. could be made by the Public Prosecutor and he could withdraw such prosecution with the "consent" of the trial Court, before the pronouncement of a judgment. It further shows that the power of Public Prosecutor to withdraw form the prosecution of any case is subject to "consent" of the Court . Therefore, it is with the judicial domain of the trial Court to refuse or accede to the withdrawal of prosecution of a person in any case. In this regard, reference is made to the case titled The State v. Navid Asif and others (PLD 1991 Lahore 268), wherein it was held that even a written application of the Government seeking withdrawal of the prosecution is not to be granted by the Court as a matter of course but shall have to be dealt with on the touchstone of the law enunciated by the Supreme Court in the case of Mir Hassan v. Tariq Saeed (PLD 1977 SC 451). In the case titled Ch. Muhammad Yaqoob and others v. The State (1992 SCMR 1983), it was held by the Hon'ble apex Court that State or Public Prosecutor has no absolute power to withdraw a criminal case and the consent of the Court is required. Court is obliged to apply its mind to the question, whether request for withdrawal is bona fide warranted by the facts of the case and is intended to foster the cause of justice or is based on mala fide with an object to favour an accused person. It was also held in the case titled Muhammad Saleem v. Mukhtar Khan and another (1984 PCr.LJ 390 (SCAJ&K), that withdrawal from prosecution, held an executive and not a judicial act. Court must be satisfied that executive function of Public Prosecutor should not be improperly exercised or that it should not amount to an attempt of interfering with course of justice. It was held in the case titled Saad Shibli v. The State and another (PLD 1981 Supreme Court 617) that Government can take a decision on matter and Public Prosecutor may act on their instructions but Courts are not absolved from applying their own independent minds to facts and circumstances of each case for granting or refusing to give consent. It was further held that the Courts have to ensure that such course being not an attempt to interfere with the normal course of justice for illegitimate purposcs or its own functioning being not thereby pre-empted. It was also held in the case titled Federation of Pakistan through Secretary Ministry of Law, Justice and Parliamentary Affairs, Islamabad v. Zafar Awan, Advocote High Court (PLD 1992 SC 72) that it is narrated from the Holy Prophet that the previous nations were destroyed because they had different laws for high-ups and influential, but different laws for the masses.

8. It is important to mention here that the application for withdrawal was filed by the learned Prosecutor, as he alone was competent to do so as provided by Section 494 Cr.P.C. After dismissal of that application, the learned Prosecutor or the Government did not challenge the order impugned. Rather, the learned Prosecutor appearing before this Court had defended the impugned order and opposed this petition. Under such circumstances, the petitioner/accused has no locus standi to challenge the order nor can request for withdrawal of the case. The petition in the circumstances is incompetent.

9. Besides, we are of the opinion that withdrawal of case is based on mala fide on the part of the Chief Minister, which is evident of the fact that the Secretary Home and Tribal Affairs, the Secretary Prosecution and the Chief Secretary, Government of Balochistan had opposed the withdrawal. Moreover, no reason has been given by the Provincial Government for withdrawal of the case. Be that as it may, the trial Court had passed a well reasohed order based on the comments/proposal of the State functionaries, which do not call for any interference by this Court. Thus, in view of above, the instant petition is dismissed. The parties are directed to appeal before the trial Court who shall proceed with the case in accordance with law and to decide it as early as possible. The interim order dated 26.3.2018 passed by this Court is hereby recalled. JK/63/Bal. Petition dismissed.