PLD 2007 Quetta 94 (PLP)

MEHTA KAILASH NATH KOHLI, J.

This Constitutional petition is directed against order dated 16th May, 2007, passed by Special Judge, Anti-Terrorism Court Sibi-Nasirabad Division at Sibi in Anti-Terrorism Case No.14 of 2006, registered vide F.I.R.No.63 of 2006 under sections 3/4/5 of Explosive Substances Act read with section 7 of Anti-Terrorism Act, on 2nd September, 2006 at 7-40 p.m. By Police Station City Sibi, whereby, application filed by District Attorney/Special Prosecutor, A.T.C. under section 494, Cr.P.C: for withdrawal of case has been rejected. Following relief has been sought in the present petition:-- "PRAYER:-- (i) Honourable Court may: (a) declare impugned order of 16-5-2007, as without lawful authority; (b) on setting aside impugned order, Honourable Court may be pleased to allow application of Special Prosecutor dated 11-5-2007 and to acquit petitioner. (ii) In case, Honourable Court declines to interfere with impugned order on any ground, proceedings before Anti-Terrorism Court (1st respondent) in Anti-Terrorism Case No.14 of 2006 may be quashed to the extent of petitioner; exonerating and acquitting petitioner. " Facts of the case, in brief, are that Inspector Jan Muhammad Khosa, S.H.O. Police .Station, City Sibi lodged F.I.R. No.63 of 2006 on 2nd September, 2006 alleging therein that he along with other Police officials was patrolling the area; about 7-00 p.m. when they reached near Levies Station, .sound of explosion was heard from Bus Stand side, consequently, they reached Bus Stand, where people had already gathered in a street and informed that explosion took place in the house of one Wazir Khan Bangulzai. It was further alleged that S.H.O. complainant along with Police officials entered in the house and found a paniced person, who was taken into custody and on interrogation he disclosed his name to be Ghulam Muhammad son of Ghulam Rasool, caste Rahija, resident of Dhadar and (that he) was working as a cleaner of Wazir Khan's vehicle, while driver of the vehicle had alighted at Kolpur and the vehicle was brought by another driver namely Manan son of Behram Khan; said Ghulam Muhammad further disclosed that he along with driver. Manan, Barkat, Ahmed Nawaz son of Ali Akbar, Nazir Ahmed and Raheem Bakhsh sons of Ahmed Khan were residing in the alleged house for three/four days. It has been stated that on enquiry with regard to alleged explosion, Ghulam Muhammad did not give satisfactory explanation. It was further alleged that accused Ghulam Muhammad, Manan, Barkat, Ahmed Nawaz, Nazir Ahmed acid Raheem Bakhsh had brought the bomb for committing terrorist act, which unfortunately exploded inside the alleged house, which had caused damage in the house, as well as, glasses of the minibus and a car were also broken. The alleged explosive material was taken into possession and scaled in a parcel, and accordingly a case under sections 3/4/5 of Explosive Substances Act read with section 7 of Anti-Terrorism Act, 1997 was registered with above said Police Station. Consequently, petitioner along with above said persons was arrested. After completion of investigation, challan of the case was prepared and charge was framed, to which the accused persons did not plead guilty and claimed trial. To substantiate accusation, prosecution has produced P.W.1 Muhammad Boota (Sub-Inspector, P.W.2 Muhammad Sudheer (A.S.I.), P.W.3 Muhammad Riaz Awan, Section Commander, Bomb Disposal Squad, P.W.4 Khair Bakhsh (Police Constable), P.W.S Khameesa Khan (Police Constable) and statement of P.W.6 Jan Muhammad (I.P./S.H.O.) were recorded. After close of prosecution evidence statements of accused persons including present petitioner were recorded under section 342, Cr. P. C., wherein they had denied the allegations and pleaded their innocence. Record reflects that on 11th May, 2007, an application under section 494, Cr.P.C. was filed by District Attorney/Special Prosecutor, A.T.C.; along with application letters dated 28th April, 2007 addressed by Government of Balochistan, Home and Tribal Affairs Department (Judicial Section) were also filed regarding withdrawal of case registered against petitioner and other co-accused persons. It would be appropriate to reproduce herein below contents of the letter dated 28th April, 2007, addressed to the Secretary, Law Department by Home and Tribal Affairs Department:-- "Subject:- Withdrawal of case F.I.. No.63 of 2006 under sections 3-4-5 Exp. Act 7 A.T.A of Police Station City District Sibi. The undersigned is directed to refer to the subject noted above and to state that the competent authority, has approved withdrawal of non-compoundable offences ill terms of powers vested in him under section 494, Cr.P.C. in case F.I.R. No.63 of 2006 under sections 3-4-5- Explosive Act, 7 A.T.A. of Police Station City District, Sibi, registered against the accused Wazir Khan Bangulzai and others, which is under trial before the Special Judge, Anti-Terrorism Court, Sibi (copy of approved summary is enclosed).

2. It is therefore, requested to kindly move for withdrawal of non-compoundable offences in the subject case F.I.R. against the above named accused persons under intimation to this Department. (Sd.) (Nasir Hameed) Section Officer, Judl.)" The learned Special Judge, Anti-Terrorism Court, Sibi vide order dated 16th May, 2007, concluded in the following terms:-- Against aforementioned order, petitioner Wazir Khan has filed the present petition before this Court. Mr. Muhammad Aslam Chishti, learned counsel for petitioner has appeared and urged that the trial court has seriously erred in refusing to allow withdrawal of the case under section 494, Cr.P.C. It was further pointed out that it was a case of no evidence, as such; permission to withdraw the case was to be granted. In the alternate, it was submitted that this court should exercise jurisdiction to suo motu quash the proceedings on the ground of there being no evidence on record against the accused persons. We have considered the arguments advanced by learned counsel for petitioner and perused the record. From perusal of withdrawal order, reproduced hereinabove, it is quite clear that no ground has been mentioned nor any reason .has been shown for withdrawal of the case. Simply allowing the petitioner to withdraw from the case would amount to throttling the process of law anal is not permissible in law. Mr. Chishti had referred two judgments report in PLD 1981 SC 617 and PLD 1980 Lahore

201. The first case related to mass cases registered pursuant to disturbance, which had taken place due to rigging of elections by the Government and the Government after taking all those factors had taken note of the Pact that those cases were not based on genuine facts. The factum of rigging was the base for withdrawal of the prosecution cases. In the second case, reported in PLD 1980 Lah. 201, Single Judge of the Lahore High Court was pleased to consider facts in the related case, the learned Judge concluded that order should be judicial and speaking order and a bare reference to withdrawal and to act mechanically was held not to be proper. It was further concluded that the supervisory jurisdiction under section 439, Cr.P.C. can be exercised by the High Court to correct the errors committed by the courts below. The above two judgments referred to by the learned counsel for petitioner are distinguishable to the facts and circumstances of the case in hand. It is a case related to Explosive Substances Act and as per .conclusions drawn by the trial Court, the entire evidence has been recorded. The Government has not given any cogent or plausible reason for withdrawal of the case. The learned trial court had rightly come to the conclusion that the prosecution has already recorded the entire evidence and it is the defence, who has to led the evidence. The basic principle on the point is that it is bounden duty of the courts to see, as to whether the .withdrawal of the cases are based on cogent grounds or based on no evidence. The discretion vested with the trial court should be exercised in such-like manner that the criminal justice should not be hampered and real culprits should not take undue advantage of section 494, Cr. P. C. and go scot-free. Reference is made to the judgment of Mr. Hassan v. Tariq Sneed and 2 others PLD 1977 SC 451; relevant observations of their lordships arc reproduced hereinbelow:-- "Section 494 is an enabling provision, and vests in the public prosecutor the initiative and the discretion to apply to the court for its consent to withdraw from the prosecution of any person. What the court has to determine in such a case, for the purpose of giving consent, is whether the general executive discretion given by law to the public prosecutor has not been improperly exercised or that it is not an attempt to interfere with the normal course of justice for reasons not related to the public interest. The application for withdrawal can be made on many possible grounds which may include the inexpediency of prosecution on grounds of public policy or in the interest of public peace, or the undesirability of permitting the prosecution to continue where there is insufficient or meagre evidence to justify a conviction. In making such an application the public prosecutor may legitimately be instructed by the Government which, under the legal system obtaining in Pakistan, is responsible for the prosecution of all cognizable offences. The discretionary power having been vested in the public prosecutor by the- statute, the Court acts, so to say, in a supervisory capacity, to see that the power is not abused in any manner exercised arbitrarily and contrary to the public interest so as to amount to an interference with the ordinary course of justice. The court must, therefore, satisfy itself that there do exist on the record grounds to sustain the reasons advanced by the public prosecutor for his withdrawal from the prosecution. It is clear that this supervisory function of the Court can be exercised only on a consideration of all the facts gild circumstances of the case available to the Court, and not in disregard of any material factor or circumstance having a bearing on the issue. At the same time, it is also clear that in undertaking this exercise the Court cannot embark upon the kind of detailed analysis of the evidence which can appropriately be undertaken only at the conclusion of a judicial trial. Any such .attempt would, in our opinion, amount to throttling the prosecution or interfering with the ordinary course of justice." The next question raised by learned counsel for the petitioner that this court should exercise suo motu powers and on appraisal of evidence should come to the conclusion that no case is made out against petitioner and the proceedings be quashed. The learned counsel has referred to a judgment reported in PLD 2006 Kar.

678. The above exercise of jurisdiction was made by the Division Bench of Karachi High Court in the case in which death was awarded in absentia and the court had come to the conclusion that the order which was made by subordinate courts was void and illegal order, where suo motu exercise under Article 203 of the Constitution of Islamic Republic of Pakistan was made, this principle is not applicable on the facts and circumstances of present case. In the case in hand, the facts are distinguishable as the trial court has already recorded the evidence and it is the turn of petitioner including other accused persons to lead defence version. Moreover, the jurisdiction has been invoked under Article 199 of the Constitution of Islamic Republic of Pakistan. Their lordships of Hon'ble Supreme Court of Pakistan in the case of Ali Muhammad through Legal Heirs and others v. Chief Settlement Commissioner and others 2001 SCMR 1822 were pleased to hold that the High Court while exercising jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan should not exercise suo motu. Relevant observations are reproduced hereinbelow:-- "

30. Now it would be considered whether learned Judge in Chambers of High Court had lawfully granted relief to respondents Aismatun Nisa and others while disposing of appeal filed by Sardar Shahid knowing well that they are not party in the writ petitions filed by them. In this behalf without dilating in detail on this proposition it is sufficient to observe that in exercise of jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan High Court does not enjoy suo motu jurisdiction to grant relief to a party as it has been held in Fazl-e-Haq. Accountant General, West Pakistan v. The State PLD 1960 SC (Pak.) 295) Shahnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Balochistan and another PLD1971 SC 677, Akhtar Abbas and others v. Nayyar Hussain 1982 SCMR 549 and Haji Muhammad Sadiq and others v. Khairati 1984 CLC 2239. Learned counsel for petitioner had attempted to take us through the evidence, but; we refrain ourselves to comment on the evidence available on record. However, we observe that the learned trial Court should decide the spatter within period of two months positively. For the foregoing reasons petition being devoid of merit is accordingly dismissed in limine. H.B.T./26/Q Petition dismissed.