1989 P Cr (PLP)

4. The case is pending against Dr. Nasir A. Shaikh and his wife Dr. Mehjabeen under sections 161 and 109; P.P.C. read with section 5(2) of the Criminal Law Amendment Act, 1958. There is a specific provision under this Act for withdrawal of the cases. Section 10(4) of the above Act reads as under:‑

"No prosecution under this Act against any person either generally or in respect of anyone or more of the offences for which he is being tried shall be withdrawn except under the orders in writing of the appropriate Government." Section 10(1) of the Act reads as under:‑

"An appeal from the judgment of Special Judge shall lie to the highest Court having appellate jurisdiction in the territorial limits, in which the offence is tried by Special Judge and the same Court shall also have powers of revision." In this case the Special Judge is a Sessions Judge, therefore, this Court (High Court) is an appellate authority and also has the revisional powers under section 10(1) of the Act irrespective of the powers vested under section 435/439, Cr.P.C. In other cases any Public Prosecutor may with the consent of the Court withdraw from the prosecution and permission of Government for withdrawal of the case is not the requirement in law. For convenience, section 494, Cr.P.C. is reproduced as under:‑- 494, Cr.P.C.‑‑ 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 any one or more of the offences for which he is tried) and upon such withdrawal." (a) if it is made before 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)." From the above two provisions in different laws, it is clear that the cases which are challaned under the Criminal Law Amendment Act, 1958 cannot be withdrawn by the Public Prosecutor without the orders in writing of appropriate Government. There is no embargo of consent of the Court under section 10(4) of the Act. This is a special law for which Special Judges are appointed by the Government to be dealt with and punished in accordance with the Criminal Law Amendment Act, 1958 and prosecution sanction is required which is not necessary in other cases. In case the sanction is specifically competent Authority, the very cognizance of the case could be challenged provided if sanction is not received within 60 days it is presumed that sanction is granted. When there is a special provision under the Special Act, in my humble view the provisions of section 494, Cr.P.C. do not attract to this case and Public Prosecutor m such cases is not empowered by law to withdraw from the prosecution as it is required under section 494, Cr.P.C. The Public Prosecutor has no absolute power in the Act, it is subject to limitation under section 10(4) of the Special Act. In case of the State v. Malik Riazur Rehman reported in P L D 1965 W.P. Quetta 1(6) in para. 10 it was observed as under:‑-- "

10. It was urged on behalf of the respondent that the Sanctioning Authority has moved the appropriate authority for the withdrawal of the case. This, however, cannot lead to the inference that the sanction for prosecution was defective. In law it is open to the Sanctioning Authority after sanctioning prosecution to move for the withdrawal of the case. There is nothing wrong in it." In case of Public Prosecutor (Anti‑Corruption) Karachi v. Ch. Muhammad Hafiz reported in 1963 West Pakistan, Karachi 833, their Lordships have dealt with the question of sanction. In this case, it has been held that if the sanction has been once accorded, as it was by the operation of law, and the Court has become seized of the case and has assumed jurisdiction and started the proceedings, it appears to us that the sanctioning authority, who had failed to grant the sanction within 60 days would not have any further say in the matter once that period has expired. Thereafter, the jurisdiction is of the Court. The entire para is as under:‑

"It is clear that this sanction is not one which is granted by the appropriate Government but has come into existence by the operation of law. If the sanction had been once duly accorded, as it was by the operation of law, and the Court had become seized of the case and had assumed jurisdiction, and started the proceedings, it appears to us that the Sanctioning Authority who had failed to grant the sanction within 60 days would not have any further say in the matter once that period expired. Thereafter the jurisdiction is of the Court. The sanction which came to be accorded by the operation of law independently of the appropriate Government cannot be vitiated by something which that Government does after the matter has passed out of its hands. Therefore, we cannot treat this case as a case of no sanction within the meaning of the law as it stands today by virtue of the. order of the Administrator about the withdrawal of this case. Once the Court had become seized of the matter after the accord of sanction, then it would appear that the only way to deal with the matter would be to withdraw the case, as indeed it was attempted, by the order referred to above." I, therefore, respectfully differ with the arguments of Mr. Halepota that once an application is made for withdrawal, then it is presumed that sanction has been withdrawn. Therefore, the present case cannot be treated as of no sanction within the meaning of law after filing application under section 10(4) of Special Act. The learned Special Judge in para. 4 of the impugned order has observed that Public Prosecutor in his application dated 10‑1‑1989 has not disclosed the grounds of withdrawal of the case nor argued on what basis the Federal Government is of the view that registration of the case against the accused was not justified. He has also observed that under section 494, Cr.P.C. consenting to withdrawal is a judicial order for which there must be the reasons and discretion for withdrawal is to be exercised judicially and while exercising such decision material evidence on record is kept in view even though the evidence may not have been judicially recorded. In para. 5 of the order, he has observed as under:‑

5. "I have gone through entire record and am of the view that on the strength of material available on record, there is absolutely no justification for withdrawal of this case. Withdrawal is not absolute prerogative of the Government. It depends upon the applicability of established judicial principles. Material available on record, in this case, indicates clear involvement of both the accused in the said crime. Although learned Public Prosecutor argued that record was re‑assessed, but he was not able to point out that, what material as a result of re assessment was secured, which falsified the oral and documentary evidence collected earlier. Also the ground of `interest of justice', under the circumstances, appears to be vague and unconvincing." Finally in para. 7, he has stated that case is not fit for withdrawal. Probably the entire material available on record was not brought to the notice of the Government and he rejected the application. The impugned order to the extent of withdrawing of the cases under section 494, Cr.P.C. and observation made by the learned Special Judge appears to be justified because the consent is required under section 494, Cr.P.C. and it is a discretion of the Court when such application is moved by the Public Prosecutor, but as stated above, this is a case which comes under the ambit of the Special Law for which special provisions have been made in the same Act for withdrawal of the cases where orders in writing of appropriate Government are necessary. The Special Law overrules the provisions of ordinary law applicable to all cases. As such in these cases section 10(4) of the Act is relevant and no consent of the Court is required. When there is an order for withdrawal by the appropriate Government, the question of not bringing the material to the notice of the Government does not arise. In my view, it is only prerogative of the Government under the Special Law to order for withdrawal of the cases. In case of the P L D 1957 SC (India) 361, the facts are different from the present case as the case was to be withdrawn under section 494, Cr.P.C. In this case, the functions of the Court and Public Prosecutor have been dealt with in detail. In case of Shaikh Muhammad Ali Shah v. Sharifuddin and others, it has been held that absence of reasons for withdrawal does not ipso facto vitiate the order of withdrawal.

5. When an application under section 10(4) of the Pakistan Criminal Law Amendment Act, 1958 on the basis of orders in writing of appropriate Government is moved and it is a State case then permission or consent of Court is not necessary. There is identical provision in section 345, Cr.P.C. The cases which are compoundable and application is made, the Court has no option, but to accept compromise, provided in some cases the permission of Court is required for which the trial Court has discretion. Therefore, in this case neither the Public Prosecutor is competent to withdraw the case, except under the orders in writing from appropriate Government nor the‑consent of Court is necessary. It is for the appropriate Government to apply mind independently for withdrawal of such cases.

6. For the reasons stated above, the order of the learned Special Judge, dated 18th January, 1989 is set aside and both the revisions are Allowed with the result that that appropriate Government after having withdrawn from the prosecution by the application under section 10(4) of Criminal Law Amendment Act, 1958 the appellants Dr. Nasir A. Shaikh and Dr. Mehjabeen Shaikh stand acquitted. M.Z.S./N‑172/K Revision allowed.