1. ' This revision application is directed against the orders of the learned Civil'Judge and F. C. M., Sehwan dated 15th May, 1979 by which he allowed the withdrawal of the case against respondents Nos, 1 and 2, acquitting them under section 494, Cr. P. C.
2. ' The applicant was the complainant who had lodged F. I. R. With the Sehwan Police Station on 9th July, 1976, alleging that respondents Nos, 1 and 2 had committed offences punishable under sections 430 and 506, P. P. C.
3. ' It was the case of the prosecution that complainant Muhammad Yaqoob son of Rahim Dad, who is hari and Kamdar of Syed Izzat Ali Shah, resident of Sehwan, and manages and looks after the water-pumping machine which pumps water in the watercourse of Syed Azzat Ali Shah which ensures flow of water to his lands. On the night of the incident while he was sleeping near the machine Muhammad Arab son of Muhammad Bux Machi and Shafi Muhammad Rind, informed him that while they were going towards village Khabrot they had seen Fakiro Channa and Khabar Channa breaking the bank of the watercourse and diverting the flow of water to their own lands.
4. On going to the place of incident accompanied by the two witnesses he had seen the two accused armed with hatchets who had threatened him and asked him to leave otherwise they would kill him. He had then reported the matter to Syed Ahmad Ali Shah, brother of his Zamindar, who had advised him to submit the information to the Deputy Commissioner, He did so and lodged the F, I. R.
5. ' The record of proceeding shows that charge under sections 430 and 506, P. P. C. Was read out to the accused and depositions of the complainant Muhammad Yaqoob and P. Ws. Muhammad.
6. Arab, Pyaro, mashir Shafi Muhammad had been recorded and they had all supported the prosecution. Only the evidence of some formal witnesses including the S. H. O., H. C. And A. S. I. And reserved witnesses, remained to be recorded when the Assistant Public Prosecutor, Dadu on 2nd May, 1979 filed an application under section 494, Cr. P. C. Praying for consent for withdrawal of the case. The learned Magistrate was on leave and. On 15-5-1979 in the absence of the A. P. P. Passed the following order :- "Application was received from learned A. P. P. Mr. Soomro when the under signed was on leave.
7. Today learned A. P. P. Is absent. Since the state has moved withdrawal application, the accused are hereby aequitted under section 494, Cr. P. C. And the application stands allowed. 7 he accused are on bail and the bail bonds are hereby cancelled."
8. ' It is clear from the wording of the order quoted above that the learned Magistrate considered that a move for withdrawal from prosecution by the A. P. P. Made it incumbent on him to give "consent" within the meaning of section 494. The Assistant Public Prosecutor in the application mentioned as ground for withdrawal from prosecution that the witnesses were not attending and therefore there was no likelihood of the case ending in conviction. If the learned Magistrate had even considered the ground by referring to the record of proceedings he would have found. That it was not soundly based inasmuch as all the alleged eye-witnesses and the complainant had already given evidence.
9. ' Mr. Azizur Rehman Memon, the learned counsel for respondents Nos, 1 and 2 has raised two fold contentions in support of the impugned order allowing withdrawal from prosecution and acquitting the two respondents. Firstly it is contended by him that order permitting withdrawal need not record reasons in writing and therefore, failure to record reasons does not ipso facto vitiate orders of withdrawal. In support of his contention he relies on decision of the Peshawar High Court in Cr.
10. Revision, Muhammad Shah v. Sharaf Din and others (1). Secondly he contends that assuming that the impugned order is illegal the respondents Nos, 1 and 2 have not committed any fault for which they should be punished by setting aside the order.
11. ' With regard to his first contention the decision of the Peshawar High Court, referred to by him could no longer be considered to be indicating the correct interpretation of law, in view of the Supreme Court decision in Pir Hasan v. Tariq Saeed and others (2) wherein the correct principles to be considered while granting permission to withdraw from the prosecution have been laid down. It was observed as under :- "It will be seen that the section is worded in very wide terms and does not lay down any principle or guideline on which the consent of the Court may or may not be granted. However, there is consensus of judicial opinion that an order of acquittal or discharge passed under section 494, consequent on the withdrawal of the Public Prosecutor from the prosecution of any person with the consent of the Court, is a judicial order, and is liable to revision by the High Court if the discretion vesting in the Court to give consent has been improperly or arbitrarily exercised."
(1) PLD 1967 Pesh, 65 ' With regard to question as to the principles on which discretion of the Court in giving or withholding consent should be exercised it was observed as under:- "We may at once agree with the view expressed by the learned Chief Justice in the order under appeal that for the purpose of exercising this discretion, it is not necessary that the trial Court must first record all the available evidence, as the discretion can certainly be exercised on the basis of the available material, even though evidence may not have been judicially, recorded by the time the application for withdrawal is made. Once the investigation of a case has been completed the Court as well as the parties become aware of the evidence that would be forthcoming at the trial, and, therefore, it is not correct to say that for the purpose of giving consent under this section that Court must wait until it has recorded the evidence.
12. ' 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.
13. What the Court has to determine in such a case, for the purpose of giving consent is whether the general executive discretion given by law to the public prosecutor has not been improperly exercised or that it is not an attempt to interfere with the normal course of justice for reasons not related to the public interest. 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. In making such an application the public prosecutor may legitimately be instructed by the Government which, under the legal system obtaining in Pakistan, is responsible for the prosecution of all cognizable offences."
14. ' With regard to function of the Court in giving consent to the withdrawal it was further observed as under :- "The discretionary power having been vested in the public prosecutor by the State, 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 grounds to sustain the reasons advanced by the public prosecutor for his withdrawal from the prosecution.
15. 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 circumstance having a bearing on issue."
16. ' In view of the authoritative interpretation of section 494, regarding exercise of discretion, to give or refuse permission to withdraw from pro secution, it is obvious that impugned order was passed on a misconception of the legal position and has resulted in a failure of justice. It is apparent that the learned Magistrate passed the order without considering the materia before him on record. In any case for reasons to be recorded by him h could have stopped the proceedings at any stage without pronouncing any judgment under section 249, Cr. P. C. And he also had the power to acquit the accused at any stage under section 249-A of the Cr. P. C. If for reasons to be recorded he considered that there was no probability of accused being convicted of any offence.
17. ' In the result the order of withdrawal and acquittal of the accused under section 494, Cr. P. C.
18. Passed by the Civil Judge and First Class Magistrate, Sehwan, dated 15th May, 1979, is set aside and the revision application is allowed. The case may now be sent to the Court concerned for trial and decision as provided by the law.