1994 P Cr (PLP)

The present writ petition has been directed against the order, dated 26-1-1992, whereby the learned Additional Sessions Judge, Bhakkar, had allowed the revision petition filed on behalf of the complainant, Imam Bakhsh, (respondent No. l herein), set aside the order of the learned trial Court, dated 18-8-1991, allowing the public prosecutor to withdraw the case pending before it and acquitting the accused (petitioners herein) arid remanded the case back to the learned trial Court for its disposal in accordance with law.

2. The learned counsel submitted that the acquittal of the petitioners had been ordered by the learned trial Court legally in consonance with the provisions of section 494, Cr.P.C. In this respect, further submitted that as no illegality or irregularity was attached to the said order, therefore, no interference was called for with the same under the revisional jurisdiction.

3. On the other hand, the learned A.A.-G. present pursuant to the notice issued herein, pointed out that the law is very clear on this point, i.e. that the Court should apply its independent mind before giving the consent for the withdrawal of the case 2nd*that the application for withdrawal can be filed on the ground of public policy, peace or administration, and that as the order, dated 18-8-1991 was passed without the learned trial Court having applied its mind and without following the principle of public policy etc. stated above, therefore, the revision petition against the same was competent and the order of the learned revisional Court impugned herein does not call for any interference under the Constitutional jurisdiction of this Court. To support his case, the learned A.A.-G. placed reliance upon Mir Hassan v. Tariq Saeed and 2 others P L D 1977 SC 451, wherein, in respect of withdrawal of the case under the provisions of section 494, Cr.P.C., it has been held as follows:-- "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 or 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 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 this respect further reliance was placed on Saad Shibli v. The State and another P L D 1981 SC 617 wherein it has been held as follows:-- "Withdrawal of prosecution

Public Prosecutor

Power of Public Prosecutor

.Exercise of power

No guideline or controlling feature- Power of wide amplitude

Requirements

To exercise these powers-- Must be exercised before judgment and with consent of the Court-- Government and District Magistrate may take decision for withdrawal of prosecution

Public Prosecutor may act on instructions

Court not absolved of its duty

Court must apply its independent mind before giving consent

Application for withdrawal can be filed on the ground of public policy, peace or administration

Duty of the Court

To ensure that normal course of justice is not interfered for illegal reasons. "

4. Therefore, it is hereby observed that the order passed by the learned trial Court, dated 18-8-1991 allowing to withdraw the case against the present petitioners by acquitting them, fails to follow the dictum laid down in the precedents cited above. The said order, dated 18-8-1991 of the learned trial Court is as follows:-- (Urdu Writing) The bare reading of the said order clearly establishes that it has been passed in the mechanical manner without stating cogent reasons on the basis of which the prosecution was allowed to withdraw the case in question.

5. Therefore, pursuant to the above discussion, it is hereby held that the said order, dated 18-8-1991 passed by the learned trial Court allowing the withdrawal of the case in question registered against the present petitioners was rightly set aside by the learned Additional Sessions Judge, Bhakkar, under the E revisional jurisdiction, vide order, dated 26-1-1992 and the case was remanded to the learned trial Court for its disposal in accordance with law. Consequently, the said impugned order, dated 26-1-1992 does not call for interference under the Constitutional jurisdiction of this Court. Resultantly, the present writ petition, being devoid of merits, is hereby dismissed.

6. However., anything stated herein shall not be a bar for the prosecution to invoke the provisions of section 494, Cr.P.C. for the withdrawal of the instant case, if a case for the same is made out in accordance with the principles laid down in the cases relied upon herein, i.e. P L D 1977 SC 451 and P L D 1981 SC 617 and it is further observed that nor shall the learned trial Court be prejudiced in any manner by anything stated herein in entertaining and disposing of such request as warranted in accordance with law. N.H.Q./M-1742/L Petition dismissed.