This is a revision petition under section 439, Cr. P. C. By Iqbal Hussain Shah petitioner against the order of the learned Additional Sessions Judge, Muzaffargarh, dated 31-1-1975, permitting the Additional Public Prosecutor to withdraw from Sessions Case No. 19 of 1978 (ref: State v. Khushi Muhammad and others) and discharging the accused,
2. The brief facts of the case are that on 16-5-1977 two first information reports arising out of one incident were registered in Police Station, Alipur District Muzaffargarh. F. I. R. No. 88 was registered at the instance of one Muhammad Suleman son of Nabi Bakhsh, caste Sheikh, resident of Alipur, District Muzaffargarh, in which, it was alleged that a procession of Pakistan National Alliance was passing through the Tehsil Road and w proceeding towards Iqbal Chowk when at about 6-00 p. m.
In .The evening it reached near the Tehsil mosque and was stopped by one Inayat Butt, who fired at the procession. It was alleged that he belonged to the Pakistan People's Party. It was further alleged that along with Inayat, there were seven others who participated in the firing at the procession, which resulted in the injuries to 7 persons and death to three other persons. Namely, Muhammad Khalid, Mumtaz Ahmad and Abdul Aziz at the spot.
3. That, simultaneously, a Report No. 89 gas registered on the same date soon after the registration of F.I.R. No. 88, at the instance of Ghulam Muhammad son of Fazal Din, caste Rajput, resident of Alipur, under section 307/452/148 read with section 149, P. P. C. In respect of the injuries caused to Inayat Butt by the members of the procession and 11 persons were named in the F.I.R. Who caused injuries with hatchets, etc., to the said Inayat Butt. After the registration of the case, Inayat Butt died in the hospital and the offence was converted from section 307, P. P. C. To section 302, P. P. C,
4. That both the first information reports were investigated by the Station House Officer, Police Station Alipur, who found that the accused in F. I. R. Nos. 88 were all innocent and only Inayat Butt (deceased) had participated in causing injuries to the opposite-party when the procession came to his shop and attacked it. However, after the investigation, bath the cases i.e. F. I. R. Nos. 88 and 89 were submitted to the Court of the Magistrate by the S. H. O., Police Station, Alipur, vide his report dated 15-7-1977 for trial. In the F. I. R. No. 89. The Investigating Officer, found that during the investigation all the accused were found guilty.
5. That it may not be out of place to mention that during the investigation, the matter came before the Supreme Court of Pakistan, so far F. I. R. No. 88 is concerned, in which Muhammad Suleman, a Member of the Pakistan National Alliance had lodged a complaint against eight persons of the Pakistan People's Party for causing injuries and death of three persons. In the Supreme Court of Pakistan, during the arguments in the bail application, it was conceded by the State that the accused in the F.I.R. No. 88, besides Inayat Butt, who died at the hands of the opposite-party, all- other accused were found innocent and till submission of the challan, no further evidence was brought on the record to change the opinion of the Investigating Officer that the accused of F.I.R.
No. 88 were innocent. The accused were granted bail by the Supreme Court of Pakistan and the remaining accused were also granted bail by me in the same case, relying upon the judgment of the Supreme Court of Pakistan.
6. That after the completion of the investigation, both the cases, arising out of the same incident, were submitted to the Court of the learned Sessions Judge, Muzaffargarh, who entrusted the two cases to Mr. Ahmad Nawaz Malik, Additional Sessions Judge, Muzaffargarh.
7. That on 22-1-1979, the learned Additional Public Prosecutor, Muzaffargarh, namely, Kh.
Muhammad Idrees, made an application under section 494, Cr. P. C. In the Court of the Additional Sessions Judge, in case F.I.R. No. 89, dated 16-5-1977, under section 302,1392/451/452/148 read with section 149, P. P. C. Titled `State v. Mumtaz Ahmad and 10 others. This case had been registered at the instance of Ghulam Muhammad, mentioned above, who had died during the pendency of the proceedings and the present petitioner is one of the eye-witnesses in that case. The Additional Public Prosecutor in his application, referred to above, stated that he had been advised by the District Magistrate, Muzaffargarh vide letter No. 92 R. D. Dated 18-1-1979, that the Punjab Government had ordered vide letter No. 11-40-H: FPQ-11/1977-111 dated 13-1-1979, that the case referred to above, may be withdrawn from the Court. He further stated that as a Public Prosecutor, Muzaffargarh, per directions given by the District Magistrate and the Government .Of the Punjab, he was withdrawing the case against all the accused and requested that after withdrawal, the accused may be acquitted. The learned Addl. Sessions Judge, Muzaffargarh, on 22-1-1979, called for a report from the office with tile for 27-1-1979 and on 31-1-1979 the learned trial Judge passed an order to the effect that in view of the statement of the Additional Public Prosecutor the case was allowed to be withdrawn and the accused were discharged.
8. That in the case F.I.R., No. 88, which is a cross-case, the learned Additional Sessions Judge summoned the accused in" which the last date of hearing was 26-2-1979 and the case was adjourned to 8-3-1979 for he appearance of the accused who are on bail.
9. Being aggrieved by the order of the learned Addl. Sessions Judge, Muzaffargarh, dated 31-1-1979, allowing the Additional Public Prosecutor to withdraw from the Sessions Case of State. v. Khushi Muhammad etc. The present petitioner preferred a revision against the same order, which is now before me for disposal.
10. The learned counsel for the petitioner has submitted that the impugned order of the learned Addl. Sessions Judge dated 31-1-1979 is not a speaking order and that the learned trial judge has just mechanically permitted the Additional Public Prosecutor to withdraw from the case without first considering all the facts and circumstances of the case and exercising the jurisdiction vested in him under section 494, Cr. P. C. Of verifying from the actual record of the case whether a prima facie case was made out or not against the accused. In support of his contention, learned counsel relied upon The Crown v: Babu and others (PLD 1956 Kar. 385), The State v. National Fire Insurance Co. (PLD 1958 Kar. 418), Awaz Gul v. Habib Khan (PLD 1959 Pesh. 186), Nisar Ahmad v. State etc. (PLD 1976 Lah. 1354) and Mst. Bhag Bhari v. State (P L. D 1976 Lah. 1593). The learned counsel further submitted that the Police, who had investigated the instant case arising out of F. I. R. No. 89 dated 16-5-1977, had found a prima facie case against the accused and sent them up for trial. Lastly, it was submitted that the accused named, who were members of the Pakistan National Alliance, had manoeuvred to pressurize the Provincial Government to withdraw the case lodged against them, and having succeeded in that matter, were able to secure issuance of a letter from the Government dated 31-1-1979, advising the District Magistrate to withdraw the prosecu--tion, who in turn, had written to the Additional Public Prosecutor, to do so on the basis of the letter. It was also contended that not only the District Magistrate but also the Additional Public Prosecutor and the learned Addl. Sessions Judge were all swayed by the Provincial Govern--ment's directive and without applying their minds to the facts of the case had blindly acted on the letter. It was, therefore, contended that the impugned order of the Addl. Sessions Judge dated 31-1-1979 was illegal and improper and liable to be set aside.
11. The learned counsel for the State, who strongly opposed the petition, submitted that though detailed reasons were not recorded by the learned Addl. Sessions Judge in his impugned order, yet the absence thereof did not vitiate the order. It 'was urged that the direction of the Provincial Government was based on public policy and that it was not, therefore, improper for the District Magistrate to direct the Additional Public Prosecutor to withdraw from the case in execution of the policy of the Government which was in the public interest. He further submitted that since there was material on the record for the withdrawal of the case, it must be presumed that the learned Additional Sessions Judge of necessity considered the same and that the withdrawal was, therefore, not without lawful authority. In support of this proposition, learned counsel for the State relied upon State v. Ensab Ali Kazi etc. (1969 P Cr. L J 320), Muhammad Ali Shah v. Sharaf Din etc. (PLD 1967 Pesh. 65) and The Superintendent and Remembrancer of Legal Affairs, East Pakistan v.
Aminnl Haq, etc. (PLD 1960 Dacca. 783). In these circumstances, it was submitted, that the petition deserved to be dismissed.
12. I have given my anxious consideration to the case. In view of the two latest pronouncements of this Court reported as Nisar Ahmad v. State and Mst. Bhag Bhari v. State, it is clear that the withdrawal by a Public Prosecutor from a case is not some sort of a mechanical process, that as soon as he makes some statement in this behalf, he should automatically be permitted to withdraw. The law compels the Court to consider whether in the given circumstances of each case, a withdrawal should be permitted or not. The trial Court has to apply its mind independently to the facts and circumstances of the case as appearing from the file of the case and to be satisfied that there are sufficient grounds for permitting the Public Prosecutor to withdraw from the prosecution.
No doubt public consideration may compel the Government on grounds of public'-policy to direct the public prosecutor to withdraw from a case and have the accused acquitted or discharged, as the case may be, but the bona fides of such Public Policy must be laid bare before the Court so that the Court is prima facie satisfied that the public interest, as against personal objective, is.
Involved if not actually will be served. In the instant case, the impugned order is not a speaking order and it cannot be determined whether the learned Additional Sessions Judge did apply his mind to the case or not. Section 494, Cr. P. C. Requires the trial Court, on basis of pure principle and intendment, if not enactment, to disclose the grounds for granting consent to a Public Prosecutor to withdraw from the prosecu--tion. Since the impugned order is totally silent and is not a speaking order, the same has been passed with material irregularity.
13. For the foregoing reasons, this petition is accepted. The order of the learned Additional Sessions Judge, Muzaffargarh, dated 31-1-1979, is set aside and the case is remanded back to the said Additional Sessions Judge so that he may pass a fresh order on the Additional Public Prosecutor's application dated 22-1-1979 requesting permission to withdraw from the case, after hearing the parties.