1. ' This is an application under section 439, Cr. P. C. By the State, whereby the impugned order was passed, by the learned IInd Additional Sessions Judge Sukkur. Disallowing the application for withdrawal, under section 494, Cr. P. C. Of the case, pending before his Court.
2. ' The facts of case briefly are that on 7th March, 1977 at about 10-30 a. m. The Head Constable in charge of Police Station Sukkur, heard some eun shot reports. It subsequently transpired, that the respondents were responsible for firing and injuring some persons. Consequently the F. I. R. Was lodged by him, on behalf of the State.
3. ' During the Investigation, evidence was collected supporting the allegations that respondents, Mehboob Hussain, armed with a revolver, Puttan alias Sibte Hassan, with a gun, and the rest of the Respondents carrying brick-bats and stones, had attacked and caused injuries to several persons.
4. Amongst them one Azizullah, had received a gunshot injury. He was shifted to Karachi for treatment. In his dying declaration, dated 5th March, 1977, the deceased Azizullah had implicated all the respondents, by assigning specific parts to each one of them, of firing from fire- arms, and attacking the victims with brickbats etc. Deceased Azizullah, however, died due to the injuries, received by him. The other injured eye- witnesses had also fully implicated the respondents. After completing the investigation, the police had challaned the case, against the respondents, in the Court, for offences under sections 302/307/147/109 read with 34, P. P. C. As welt as 13 (d) of the Arms Act. In short, there was overwhelming evidence in the case against the respondents.
5. ' The case could not proceed in the trial Court, as the learned District Public Prosecutor, instructed by the District Magistrate, Sukkur, had applied for the consent of the Court for withdrawing from the prosecution of the respondents of all offences, alleged against them.
6. ' On perusal of the impugned order, it appears that the learned District Public Prosecutor, had first made an application for withdrawal of the case, which later on, he withdrew, by making a written statement on 7th Angust, 1978, wherein, he had submitted, that he was directed by the Sind Government to proceed with the case. Thereafter, again another application was moved for withdrawal of the case, on the same facts and grounds.
7. ' Since the withdrawal application did not contain any ground of public policy, or any other ground, in support of general policy, except the vague statments. The learned Judge, had declined to allow the withdrawal of the case, by passing the impugned order. In the case of Mir Hassan (1), almost identical situation had taken place. An application was made by the Public Prosecutor, to withdraw from the prosecution of the respondents/accused, on the ground, that they had not committed any offence, as they were not connected with the main accused, who had a long standing enmity with the complainant party. It was further stated that no overt act had been attributed to the respondent and there was no likelihood of their conviction. It was further contended that the prosecution of the respondent had become inexpedient.
8. ' The learned trial Judge, after reviewing the available material, on the record. Reached the conclusion, that it was not possible to give any, positive opinion of the merits or the demerits of the case, until such time, as the prosecution evidence had been led. He had also expressed the view, that at that stage of the case, the application for withdrawal appeared to be an attempt to interfere with the normal course of justice, with a view to 'throttling the prosecution, as in the F. I, R., it had been alleged that all the accused persons had gone to the scene of offence, armed with the rifles, guns and pistols and that one of the respondents was stated to have instigated the co- accused to finish their enemies, In the circumstances he refused to give his consent under, section 494, Cr, P. C.
(1) PLD1977SCSj4 ' Aggrieved by the order of the trial Court two of the respondents, had filed the Revision Petition in the High Court, at Karachi which was accepted, on the ground that, "the section itself, did not provide any guidelines, the judicial function implicit, in the exercise of the judicial discretion, for granting consent, would normally mean that the Court had to satisfy itself, that the executive function of the Public Prosecutor, had not been improperly exercised, or that it was not an attempt to interfere with the normal course of justice, for illegitimate reasons or purposes". The prosecution evidence was also assessed so as to ascertain, whether, it would ultimately lead to the conviction of the respondents, and reached the conclusion, that there was no scope, for their convictions. The view of the trial Court, that no opinion could be expressed, on the merits of the case, until the evidence had been recorded, was overruled. The Revision Petition was accepted and the consent was granted to the request of the Public Prosecutor, to withdraw from the prosecution of the two respondents.
9. ' The matter went up to the Supreme Court to consider, whether in the facts and circumstances of the case, permission to withdraw from the prosecution, was given op correct principles. It was observed in the judgment as follows :- "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.
10. 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.
11. ' 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, grounds to sustain the reasons, advanced by the Public Prosecutor, for his with drawl 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 tact 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, in our opinion, amount to throttling the prosecution or interferin* with the ordinary course of justice."
12. As a result of the above observation, I find no illegality in the impugned order. I further find that the application for withdrawal from the prosecution had not been made in the instant case, on any ground of public policy or public peace or interest but merely on some general grounds, which give an indication of throttling the prosecution and therefore with the ordinary course of justice. This is not at all the case, where there is no evidence against the respondents, such as could sustain the conviction. Such questions can only be determined by the trial Court. It was observed by the Supreme Court in the above-noted case, that "this function of the trial Court cannot be permitted to be pre-empted at a preliminary stage by an application of the kind, made in this case, by the public prosecutor.
13. ' As a result, I find the impugned order to be legal and proper and th application is dismissed in limine.