2000 P Cr (PLP)

The petitioners are accused of commission of offences under section 420/467/409/468/471/109, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947 vide an F.I.R. No.1, dated 21-1-1981, Police Station Anti-Corruption Establishment, Muzaffargarh. They were sent up for trial before a learned Special Judge, Anti-Corruption, D.G. Khan Division Camp at Muzaffargarh. While they were so under-trial, the Provincial Government purporting to act under section 10(4) of Pakistan Criminal Law (Amendment) Act, 1958 (hereinafter referred to as the said Act) passed orders withdrawing the prosecution against the petitioners. The prosecutor before the learned Special Judge did not make a prayer for withdrawal of prosecution. However, an application was filed by the petitioners with the prayer that in the light of the orders withdrawing the prosecution against them, they may be discharged. The application was dismissed by the learned Special Judge vide an order, dated 11-5-1993. Learned counsel for the petitioners contends that the impugned order is without jurisdiction inasmuch as after the withdrawal of prosecution by the appropriate Government under section 10(4) of the said Act, the learned trial Court had no choice but to discharge the petitioners: . According to the learned counsel, the yardstick prescribed by section 494, Cr.P.C. was not applicable to the facts and circumstances of the present case. No one has turned up for the respondents.

2. I have gone through the impugned order as also the orders passed on 7-11-1990 and 11-8-1991 withdrawing prosecution against the petitioners 1 and 2 respectively. Learned counsel has relied on the cases of Dr. Nazir A. Shaikh and another v. The State 1989 PCr.LJ 1361 (Karachi) and Qazi Khalid Saif Ullah v. Sh. Lutfur Rehman, Special Judge, Anti-Corruption, Gujranwala Camp at Gujrat and another 1986 PCr.LJ 2619, to bring home the point canvassed by him i.e. the discharge of the petitioners was to automatically follow the order of withdrawal of prosecution by the Provincial Government. I, however, do not find myself in agreement with the said argument of learned counsel for the petitioners. By virtue of section 6(1) of the said Act, a Special Judge shall be deemed to be a Court of Sessions and a person conducting prosecution before the Court of a Special Judge shall be deemed to be a Public Prosecutor. The provisions of the Code of Criminal Procedure except those of Chapter XXXVIII of the Code, shall, in so far as they are not inconsistent with the said Act, apply to the proceedings of the said Court.

3. Section 10(4) of the said Act is rather couched in a language to l make it a disabling provision. It lays down that no prosecution under the said Act against any person either generally or in respect of any one or more of the offences for which he is being tried shall be withdrawn except under the orders in writing of the appropriate Government. A bare reading of the said provisions of Law, would show that the orders in writing of the appropriate Government are just a stepping stone towards the withdrawal of prosecution. This provision does not at all give the impression as has been gained by the learned counsel that a prosecution shall be withdrawn, the moment orders in writing for the purposes are passed by the appropriate Government. Once the orders have been passed then the only enabling provision for withdrawal of prosecution left in the field is of course section 494, Cr.P.C. This provision of Law came-up for interpretation in the case of Mir Hassan v. Tariq Saeed and 2 others PLD 1977 SC

451. I would like to quote here the following observations of Mr. Justice Anwarul Haq (as his Lordship then was):-- "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, 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 ground to sustain the reasons advanced by the public prosecutor for his withdrawal from the prosecution." Applying the said criteria laid down by the apex Court on the subject, I find that the orders Annexure "A" and Annexure "B" do not contain a single reason as to why the prosecution has been ordered to be withdrawn. It is not at all discernable from the said orders that the same have been made on any ground of public policy or public peace and interest. The learned Special Judge has acted absolutely within the bounds of his jurisdiction while disallowing the application of the petitioners on the basis of said orders claiming a discharge. An order to the contrary would certainly be tantamount, to use the words of the Supreme Court in the said case of Mir Hassan, to throttle the prosecution and to interfere with the ordinary course of justice.

4. I draw support for the said conclusions from the judgment of my learned brother Falak Sher, J. in the case of The State v. Navid Asif and others PLD 1991 Lah. 268, wherein somewhat similar circumstances, his -Lordshin concluded that:-- It is apt to mention that 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 and 2 others PLD 1997 SC

451. Respectfully following the said dictum of my learned brother Falak Sher, J., I find that the impugned order does not suffer from any illegality or impropriety. This criminal revision is accordingly dismissed. H.B.T./M-1303/L Revision dismissed. .