P L D 2009 Lahore 87 (PLP)

MUHAMMAD AKRAM QURESHI, J.

Case under sections 409/382, P.P.C. read with section 5 of Prevention of Corruption Act, II of 1947 was registered against respondent No.1, Umar Hayat and one Mian Khan. Umar Hayat and Mian Khan were declared innocent by the police whereas respondent No. 1 avoided his appearance before the police and proceedings under sections 204/87/88, Cr.P.C. were carried out against him. Report under section 512, Cr.P.C. was also submitted against him in the Court of learned Special Judge Anti Corruption, Lahore who summoned him and proceedings initiated. He avoided his appearance before the learned Judge. His summonses, bailable and non bailable warrants were also issued but all in vain. In the meanwhile respondent No.1 appeared before the Court and submitted that he had secured pre-arrest bail from the Court of learned Addl. Sessions Judge, Okara. He was directed to produce robkar to that effect and the matter was adjourned for 7-2-2004. The S.H.O. was also directed to file supplementary challan. On 7-2-2004 neither respondent No.1 appeared nor the supplementary challan submitted. Non-bailable warrants of his arrest were issued and the S.H.O. was also given a show-cause notice. On 21-2-2004 the position remained the same. On 6-3-2004 it was reported that respondent No.1 was sick and a medical certificate was submitted along with the application for dispensation of his attendance. The case was further adjourned for 20-3-2004 and non-bailable warrants of arrest of respondent No.1 were again issued. On 20-3-2004 he was again absent but it was intimated to the Court that the case has been cancelled by the D.P.O. so the matter was adjourned for 3-4-2004, whereon the learned A.D.P. informed the Court that the case against respondent No.1 has been cancelled and he be granted permission to withdraw the prosecution of this case. The learned trial Court, vide order dated 3-4-2004 permitted the learned A.D.P. to withdraw from the prosecution and the case against respondent No.1 was consigned to record. The petitioner has assailed the order dated 3-4-2004 being illegal, incorrect and improper. Hence the present revision petition.

2. The learned counsel for the petitioner while relying upon Mir Hassan v. Tariq Saeed and 2 others (PLD 1977 SC 451), The State v. Navid Asif and others (PLD 1991 Lahore 268), Pahalwan Machhi v. Abdul Wahid and another (1991 PCr.LJ 728), Habib ul Wahab el Khairi v. Pakistan through Secretary, Interior Division Islamabad and others (1998 MLD 1523) and Khizer Hayat v. I.G. Punjab Lahore (PLD 2005 Lahore 470) has submitted that the order of the learned Special Judge was illegal and incorrect and that once the Court has taken cognizance, the case cannot be cancelled by an order of the executive authority. He submits that the impugned order is not in accordance with the norms of criminal administration of justice and that the learned special Judge should not have permitted the withdrawal of case mechanically and should have analyzed the merits of the case. Conversely, the learned counsel for the complainant submits that a private party has no authority at all to pray for revision of the impugned order and that under the special law the impugned order cannot be declared illegal, incorrect and improper and that the present revision petition is without merits and the same may be dismissed.

3. I have considered the respective contentions of the parties and gone through the record. In case of Mir Hassan v. Tariq Saeed and 2 others (PLD 1977 SC 451) the Apex Court has held that:-- "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. 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 of exercise 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 and circumstances of the case available to the Court, and not in disregard of any material factor or circumstances 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 amount to throttling the prosecution or interfering with the ordinary course of Justice." In the case reported as The State v. Navid Asif and others (PLD 1991 Lahore 268), this Court has held as under:-- "

S.494

Pakistan Criminal Law Amendment Act (XL of 1958), S.10 (4)

Withdrawal of prosecution

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 of Pahalwan Machhi v. Abdul Wahid and another (1991 PCr.LJ 728) it has been held as under:-- "

S.494

Penal Code (XLV of 1860), S.302/34

Application of prosecution for withdrawal of case

Trial Court had repeatedly ordered issuance of process for the witnesses but they did not attend the Court

Public Prosecutor stated before High Court that he was moved by the Trial Court to submit withdrawal application

High Court deprecated the act of Trial Court and observed that Trial Court should have allowed more time and should not have allowed withdrawal of a murder case in the way it had been done." And in the case of Habib ul Wahab el Khairi v. Pakistan through Secretary, Interior Division Islamabad and others (1998 MLD 1523) this Court declared that:-- "

S.10

Criminal Procedure Code (V of 1898), S.492

Constitution of Pakistan (1973), Art. 199

Constitutional petition

Private complaint filed by petitioner against respondent was sought to be withdrawn by Government through specially appointed Public Prosecutor

Petitioner challenged withdrawal of prosecution; appointment of Special Prosecutor and non-according sanction of prosecution of newly added accused

Constitutional petition was opposed on the ground that petitioner had other adequate remedy by opposing withdrawal of prosecution before Special Judge

Petitioner having attacked other on the ground that same was wholly without authority, question of alternate remedy being available was of no significance

Prosecution having been initiated on the basis of complaint filed by the petitioner, State could not withdraw such prosecution

Power to withdraw complaint was only vested in complainant with permission of Court

Government, thus, could not withdraw prosecution against its officials which had been initiated by private person

Government, however, was empowered to appoint Public Prosecutors in terms of S.492 Criminal Procedure Code, 1898 and in such matter no person would have right to object to such appointment

Public Prosecutor so appointed by the Government was restrained to seek withdrawal of prosecution against accused person; he could, however, if so desired by the Government, conduct prosecution against accused."

4. I have also considered the contentions of the learned counsel for the parties. The impugned order of the learned Special Judge Anti Corruption, Lahore is not in accordance with the dictums of superior Courts of Pakistan. It is mechanical in nature. The learned Judge should not have permitted the withdrawal of the case. The Special Judge has taken cognizance of the offence and thus was of the opinion that sufficient reasons were existing to proceed with the trial. Any executive opinion of the District Prosecutor counselling the case should not have prevailed upon the said judicial order of the learned Judge. In this respect, this Court is further enlightened by the judgment of the apex Court reported as Muhammad Alam and another v. Additional Secretary to Government of N.-W.F.P. Home and Tribal Affairs Department and 4 others (PLD 1987 SC 103).

5. In the light of above discussion I have no hesitation to conclude that the impugned order of the learned Special Judge Anti Corruption. Lahore is illegal, incorrect and improper. The present petition is accepted and the order of the learned Special Judge Anti Corruption Lahore dated 3-4-2004 is hereby set aside. The case is remanded back to the learned Special Judge Anti Corruption, who shall proceed with the trial in accordance with law. N.H.Q./A-130/L Petition allowed.