2020 P Cr (PLP)

MUHAMMAD QASIM KHAN, J.

Through this revision petition, the petitioner has attacked the legality of order dated 13.03.2019, passed by the learned Judge Anti-Terrorism Court-III, Lahore, whereby, by acceding the request made in the light of section 10(3)(f) of Prosecution Act, 2006, by learned DPG for postponement of the case, file of the case was consigned to record room.

2. We have heard learned counsel for the petitioner as well as learned Deputy Prosecutor General at length and perused the record available on the file.

3. Stance of learned counsel for the petitioner is that the petitioner was facing trial in case FIR No.1099/2013 Police Station Garden Town, Lahore and after hearing final arguments, the learned trial Court has adjourned the matter sine die although, no iota of evidence was available on file against the petitioner/accused and in this way, passed the impugned order in a whimsical manner just by relying upon the statement of DPG.

4. From perusal of the impugned order dated 13.03.2019, it appears that statements of formal witnesses have been recorded, whereas, eye-witnesses of the occurrence namely Munawar Hussain/ PW.19 and Najam-ul-Tasir/PW.20 have been declared hostile and the learned DPG prayed for postponement of the case by stating that the star witness namely Usman Qasmi is not available in case FIR No.753/2013 Police Station Ravi Road, Lahore as his whereabouts are not traceable to police; hence, on the statement of DPG the file was consigned to record.

5. To further dilate upon the matter, section 10(3)(f) of Prosecution Act, 2006 is reproduced herein below:- "At any stage of a trial before any trial court subordinate to the High Court before the judgment is passed, the Prosecutor General or any Prosecutor specifically authorized by him, may, for reasons to be recorded in writing, inform the court on behalf of the Government that the Prosecutor shall not prosecute the accused upon the charge and thereupon all proceedings against the accused shall be stayed and he shall be discharged of and from the same. Provided that such discharge shall not amount to an acquittal unless the Court directs otherwise."

6. There are some important ingredients to stay the proceedings in any criminal case that:- i) The Government has decided not to proceed against the accused; ii) The Prosecutor General shall inform the Court after recording the reasons in writing; or iii) Any Prosecutor specifically authorized by the Prosecutor General shall inform the Court. So first of all approval of the Government is necessary and that should be based on specific reasons and that reasons should be in writing either the case be forwarded by the Prosecutor General by advancing reasons to the cabinet by adopting the departmental procedure or the cabinet itself take the decision but this decision must be based on some cogent reasons and the Government means does not the Prosecutor, Prosecutor General or Secretary Prosecution or Chief Secretary of the Province, it is the 'Cabinet'. Reference in this respect is made in the case "Messrs Mustafa Impex, Karachi and others v. The Government of Pakistan through Secretary Finance, Islamabad and others" (PLD 2016 Supreme Court 808).

7. Secondly, either the Prosecutor General or any Prosecutor especially authorized in this behalf by the Prosecutor General has to inform the Court and he has to submit before the Court the reasoning and the decision of the 'Cabinet'. In this case, neither any decision was made by the Government i.e. approval by the 'Cabinet' nor any Prosecutor was specifically authorized in this behalf by the Prosecutor General and even the Deputy Prosecutor General had not submitted before the Court that he stated under the instruction of Prosecutor General and he has also not submitted the reasoning advanced by the Prosecutor General or the Cabinet/Government in this respect and the Deputy Prosecutor General while appearing before the Court stated as under:- "Accused Abdul Rauf has already been convicted by Military Court vide order dated 04.01.2016 in case FIR No.319/2014, under sections 302, 324, 148, 149/34, P.P.C. and 7-ATA, 1997, Police Station Garden Town, Lahore. There is no issue of liberty of the accused so I also tender in evidence warrant of commitment of sentence regarding accused Abdul Rauf as Ex.P-GG and also close the prosecution evidence after tendering report of PFSA, Lahore Ex. P -HH/1-2 to Ex.P-QQ/1-8 with the request that case FIR No.753/2013, Police Station Ravi Road, Lahore and case FIR No.1099/2013, Police Station Garden Town, Lahore of accused Abdul Rauf may be decided on one and same date so that prejudice may not be caused because the star witness Usman Qasmi in case FIR No.753/2013, under sections 302, 324, P.P.C. and 7, A.T.A., 1997, Police Station Ravi Road, Lahore is not available, as per information his whereabouts are not traceable to the police because he has concealed himself due to threat of accused party".

8. Mere fact that earlier case against the accused has already been postponed due to non-availability of a witness does not constitute a valid reason that the other case of similar nature must also be postponed; hence, the above statement of learned Deputy Prosecutor General has no sanctity at all in the eyes of law as neither the Deputy Prosecutor General stated that he has been instructed by the Prosecutor General nor he has submitted any document to establish the approval of the Government in this respect. Hence, the impugned order is declared to be illegal, void and is hereby set aside and the learned trial Court is directed to start the proceedings of trial from the stage, the case was sine die adjourned.

9. With the above observations/directions, criminal revision is allowed. SA/A-10/L Petition allowed.