SHAPI-UR-REHMAN, J.-The questions of law arising in the two criminal appeals by special leave is as to what are the governing principles applicable to the grant of consent of the Court under section 494, Cr. P. C. And whether such governing principles have been applied correctly in refusing permission to the Public Prosecutor to withdraw from the prosecution in the two cases.
2. Earlier in point of time is a case registered on 16-4-1974 at 10-45 hours at Police Station, Latifabad, Hyderabad, on a report lodged by Aziz Bux alias Bhaddi under sections 302/307, P. P. C.
And section 13-D of the Arms Ordinance. The facts disclosed in the first information report show that he, being a shopkeeper in the neighbourhood was attracted to the stadium side on hearing the report of a gunshot. He found the appellant Saad Shibli son of Dr. Muhammad Idrees Shibli armed with a double barrel gun who disclosed to him that the boys who were running away had teased his sister. He was pacified and went home. Another report of a gunshot was heard soon thereafter on which the complainant again went in that direction followed by Master Mir Muhammad, a witness. They saw a jeep No. M. Y. 747 standing in front of the house of the appellant.
A boy was lying injured on the corner of the street. The appellant was armed with a gun and was shouting "at three boys sitting in the jeep and asked them to get out of the jeep but they did not alight" whereupon he fired another shot hitting another boy sitting in the jeep. Challan was submitted against the appellant and four witnesses were examined in the commitment Court on 17-4-1974. Transfer applications were filed which delayed the recording of further evidence. On 18- 9-1974 the Assistant Public Prosecutor presented an application under section 494, Cr. P. C. Stating as follows "I have been instructed by the District Magistrate Hyderabad vide his No. H. (S) 5035 14-9-1974 through the D. P. P., Hyderabad that the above case may be withdrawn.
The District Magistrate has received the instructions from Home Department.
The District Magistrate has been consulted in the above case. It appears that Government has considered the case on merits also and has desired to withdraw the case. The Government does not want to prosecute the above case any more."
3. The Magistrate in whose Court the proceedings were pending also received a copy of the order of the District Magistrate, another copy of it was endorsed to the District Public Prosecutor. It contains the following order "No. H(S) 5035 of 1974 District Magistrate's Office, Hyderabad.
Dated: 14-9-1974 Read: Letter No. XII (107) S. O. J. 74 dated 14th September, 1974 from the Deputy Secretary to the Government of Sind, Home Department, `Karachi desiring that the case State v. Syed Muhammad Saeed Shibli son of Syed Muhammad 1drees Shibli under section 302/307, P. P. C. And 13-D Arms Ordinance may be withdrawn.
Order of The District Magistrate, Hyderabad State v. Syed Muhammad Saeed Shibli son of Syed Muhammad Idrees Shibli under section 302/307, P. P. C. And 13-D, Arms Ordinance, pending in the Court of IVth Extra Joint Civil Judge and F.
C. M.
(Sd.)
Imdadullah Unar, District Magistrate, Hyderabad."
4. As this application remained unattended on account of transfer applications etc. Another application was filed by A. P. P. On 11-1-1975 in continuation of earlier one. It gave out the grounds ad seriatam as follows "(1) That the Government of Sind after taking into consideration the evidence of Prosecution intends to lead and scrutinizing the record and has decided to withdraw from Prosecution.
(2) That the facts of the case does not indicate that can end in con--viction.
(3) That the Government of Sind has taken view to withdraw from Prosecution in the light of circumstances of the case and Public Policy.
(4) That the complainant Party had chosen to file direct complaint with regard to the same incident discarding the Police investigation in which complaint was subsequently through application on record and con--sequence the direct complaint was dismissed.
(5) That the evidence in this case is the nature of that no offence alleged may be made out against the accused.
(6) That the learned District Magistrate has communicated the decision of Government of Sind and it would be expedient in the interest of justice if permission is granted for withdrawal of the case."
5. The Resident Magistrate who dealt with the application passed two -separate orders one relating to the case under section 302, P. P. C. And the other relating to the case under section 13-D of the Arms Ordinance. The operative part of the Magistrate's order is as follows :- "In view of the facts and circumstances of the case considered by Government of Sind and order passed by them in that regard and 2 inconsistent versions of case reported to Police in F. I. R. And in direct complaint before the learned IV Extra Civil Judge & F. C. M. And its dismissal by him on another application of the complainant, that his witnesses were tampered with, make evidence doubtful for murder case and as such it seems that case cannot be successful for conviction.
It has also become evident from the facts and circumstances of the case discussed above that withdrawal is done on public policy."
The withdrawal of both the cases was allowed on this ground.
6. Matloobul Haq, a brother of the deceased Izharul Haq, who was neither the complainant in the private complaint lodged, nor the informant in the case registered with the Police, moved a revision petition in the High Court against this order. A learned Judge of the High Court after examining at length the facts of the case and the grounds disclosed by the Assistant Public Prosecutor came to the conclusion that the circumstances of the case bore "a close resemblance to the circumstances of the reported case" of Mir Hassan v. Tariq Saeed (PLD 1977 SC 451It was found that there were admittedly a number of eye-witnesses to the incident including injured Nasir. Further, there was the medical evidence regarding presence of gunshot injuries on deceased Izharul Haq and P. W. Nasir."
These were according to the learned Judge, questions which "required judicial determination after a proper trial and their determination cannot be conceded to the executive." The revision petition was accepted and the order granting the consent to the withdrawal from the prosecution was set aside and expeditious trial of the case was ordered.
7. Leave to appeal was granted to Saad Shibli on 26-4-1978 with a view to ascertain whether his case was distinguishable from the case of Mir Hassan and what is the true construction of section 494, Cr. P. C. Respondent No. 2, the brother of the deceased contested this appeal.
8. In the other criminal appeal firing had taken place on 7-3-1977 at about 10-30 a. m. Within the limits of Police Station Sukkur resulting in the death of Azizullah and injury to Abdul Ghani and six others. It was the Head constable Incharge of the Police Station Sukkur who had heard the reports of the gunshot and came to know about the injured and lodged the report. The respondents who are 24in number were sent up as accused under sections 302, 307, 147, 149 and 109 read with section 34, P. P. C. And sec--petition 13-D of the Arms Ordinance. The District Public Prosecutor sought the withdrawal of the case under the instructions of the Government on 25-4-1978 but subsequently he was directed not to withdraw the case. Another direction was given to him on 10- 2-1979 by the District Magistrate asking him to withdraw from the prosecution of the respondents.
The order 91withdrawal from prosecution in this case also emanated from the Home Government of Sind but in the application .Filed by the District Public Prosecutor the following grounds were specifically mentioned :- "(1) That the Government of Sind under its General Policy, had decided to withdraw all the cases that were registered during election distur--bances vide his Letter No. 229 (S. O. JJ/77 dated 25-4- 1978. The Government of Sind has again ordered for its withdrawal vide Letter No. VI (229) S. O. J. 77, dated 7-2-1979, from Secretary Home Depart--ment, Government of Sind.
(2) That this incident also took place on 7-3-1977 which was election day of National Assembly of Pakistan.
(3) That the number of accused has been exaggerated.
(4) That it will not possible to know and remember the names of as many culprits when there was roiting."
9. The trial Court (IInd Additional Sessions Judge, Sukkur) refused withdrawal on 17-3-1979 holding on the basis of the decision of this Court in Mir Has.Yan's case that-- "the present application does not contain any ground of public policy or public peace and interest or any other possible ground but ground of general policy has been raised which I feel is a vague term and does not make possible ground for allowing prosecution to withdraw its case."
The learned Judge also considered the other possible grounds that the number of the accused had been exaggerated, that it was not possible to know and remember the names of so many culprits and found 'these grounds to be without any force and considered the dying declaration and the statement of injured to be evidence available for appraisal at the trial.
10. The matter was then taken up in revision by the State and a learned Judge of the High Court held 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 prosecution and therefore with the ordinary course of justice." The revision petition was dismissed.
11. On a petition by the State special leave to appeal was granted on 17-8-1980 and the appeal was ordered to be heard with the appeal of Saad Shibli. None has appeared to contest this appeal. .
12, Section 494, Cr. P. C. Is reproduced hereunder "Any Public Prosecutor may, with the consent of the Court, before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried, and upon such withdrawal :--
(a) if it is made before a charge has been framed, the accused shall he discharged in respect of such offence or offences ;
(b) if it is made after a charge has been framed, or when under this Code no charge is required, he shall be acquitted in respect of such offence or offences.
13. A bare reading of this section discloses that the statute conferring the power of withdrawal on the Public Prosecutor prescribes no guidelines and indicates no controlling features, except that such a power can be exercised before the judgment is pronounced and is subject to "consent of the Court". From such a general dispensation certain consequences necessarily follow. In the first place, the power conferred is of the widest amptitude but not so wide as to amount to a fiat or ipsi dixit of the Public Prosecutor. Such a limitation necessarilly follows the requirement of "consent of the Court." It has been held that "where Court's permission is sought or required, such a motion seeks the active exercise of the sound judicial discretion of the Court" (22 A C J S 7). Judicial discretion of the Court is required to be exercised according to reasonably well settled principles, which are capable of being formulated and applied as standards by higher Courts when entertaining appeals against the manner in which they have been exercised. In this sense, therefore, "judicial" refers to the exercise of discretion in accordance with "objective" standards as opposed to subjective considerations of policy and expediency." (Pages 72-73 S. A. De Smith Judicial Review of Administrative Action, Second Edition). In the case of orders passed under section 494, Cr. P. C., they are not appealable but revisable as held in Mir Hassan's case. Next, such an exercise of judicial discretion presupposes the existence of grounds, their disclosure by the Public Prosecutor or their ascertainment by the Court and their nexus with the power sought to be exercised. The disclosure of the grounds need not be by the Public Prosecutor alone. They may as well appear ex facie from. The record of the Court, or, may otherwise comprise facts and events of which judicial notice can be taken under section 57 of the Evidence Act. "But it does not follow that the discretion is to be exercised only with reference to material gathered by the judicial method, otherwise the apparently wide language of section 4':4, Cr. P. C. Would become considerably narrowed down in its application State of Bihar v. Ram Naresh (AIR1957SC389
14. This power of withdrawal by the Public Prosecutor with the consent of the Court has been in the field and operated by the Courts in Pakistan. India and United States of America. For Pakistan and India the law is identical as contained in section 494, Cr. P. C. In the United t States it is contained in rule 48 to be found in United States Code Annotated Title 18 (Federal Rules of Criminal Procedure). It is reproduced hereunder "Rule 48.-Dismissal
(a) By Attorney for Government. The Attorney General or the United States attorney may by leave of Court file a dismissal of an indictment, information or complaint and the prosecution shall thereupon terminate. Such a dismissal may not be filed during the trial without the consent of the defendant.
(b) By Court.-If there is unnecessary delay in presenting the charge to a grand jury or in filing an information against a defendant who has been held to answer to the District Court, or if there is unnecessary delay in. Bringing a defendant to trial, the Court may dismiss the indictment, information of complaint.".
15. This power of withdrawal from prosecution with the consent of the Court is slightly different from the power to enter Nolle Prosegui as earlier existing in section 333 and now in section 265-L of the Criminal Procedure Code and as available in United Kingdom. The Court has no control whatsoever over its exercise. Hence the grounds need not be objective, may not be disclosed at all and the Court has no discretion to refuse entry of Nolle Prosequi. A long line of decisions on the subcontinent took the view that the power under section 494, Cr. P. C. Was conferred on the Public Prosecutor, and was exercisable by him in his discretion, totally uncontrolled and unguided by the District Magistrate or the Government and that any visible intervention in its exercise by these authorities amounted to surrender of power by the Public Prosecutor and improper pressure by Government on Court. This view was last expressed forcefully in this country in Crown v. Bahu (PLD 1956 Kar. 385). The same objection was raised but not pressed and the power was conceded to the Government in India before the Supreme Court in M. N. Shankanarayain Nair v. Bal Krishan (AIR 1972 SC 496). In Mir Hassan's case this Court laid down the law that "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 cogniz--able offences."
16. The Public Prosecutor is appointed by the Government or by the District Magistrate under section 492, Cr. P. C. He is required to prosecute cases in criminal Courts in cognizable cases. Ail prosecutions are in the name of State. In the case of State v. National Fire Insurance (PLD 1958 Kar.
418) the relation of Public Prosecutor and District Magistrate was taken to be of counsel and client.
Considering the subject matter and the nature of his engagement, the Public Prosecutor will appear to be a subordinate element in a heirarchical set up. The limitations arising out of such a situation have been considered in S. A. De Smith Judicial Review of Adm. Action, p. 273 reproduced hereunder :- "Authorities directly entrusted with statutory discretion---s, be they Executive Officers or members of District tribunals, are usually entitled and are often obliged to take into account considerations of public policy, and in some context the policy of -a Minister or of the Government as a whole may be relevant factor in weighing those considerations but this will not absolve them from their duty to exercise their personal judgment in individual cases unless explicit statutory provision has been made for them to be given binding instructions by a superior or possibly unless the cumulative effect of the subject matter and their hierarchical subordination make it clear it is constitutionally proper for them to receive and obey instructions."
17. The same subject has been dealt with in Halsbury's Laws of England, Fourth Edition Vol. I, para. 31 as follows "Acting under dictation.-A body entrusted with a statutory discretion must address itself independently to the matter for consideration. It cannot lawfully accept instructions from, or mechanically adopt the view of, another body as to the manner of exercising its discretion in a particular case, unless - that other body has been expressly empowered to issue such directions or unless the deciding body or officer is a subordinate element in an administrative hierarchy within which instructions from above may properly be given on the question at issue."
It follows that the Government/District Magistrate can take a decision in the matter and the Public Prosecutor may act --n their instructions but this will not absolve the Court from applying its own independent mind to the facts of each case for granting or refusing consent:
18. With regard to the relevance and the weight to be given to con--sideration of "Public Policy" "administration of justice" or "interest of State" in deciding the question of consent, the decisions have not been uniform. In Crown v. Babu and others these words were considered "nebulous expressions designed to cover acts of interference". In Emperor v. Setaldas (AIR 1943 Sind 109) after reproducing the principles governing Nolle prosequi the Court held "We regard this reason of public policy, however learned and however high sounding it may appear, as an improper reason for the withdrawal of any case."
Such a view had its foundations in the view of public policy formed in the context of contracts and commercial pursuits e. g. That "public policy is always an unsafe and treacherous ground for legal decision (Janson vDriefontin Consolidated mines 1902 A C 484) or that "public policy is a restive horse and when you get astride of it, there is no knowing where it will carry you." In Mir Hassan's case this Court laid down the law that "the application for withdrawal may 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 Indian Supreme Court in the case of Nair held "Though the section is in general terms and does not subscribe the powers of the Public Prosecutor to seek permission to withdraw from the prosecution the essential consideration which is implicit in the grant of the power is that it should be in the interest of administration of justice which may be either that it will not be able to produce sufficient evidence to sustain the charge or that subsequent information before prosecuting agency would falsify the prosecution evidence or any other similar circumstances which it is difficult to predicate as they are dependent entirely on the facts and circumstances of each case. Nonetheless; it is the duty of the Court also to see in furtherance of justice that the permission is not sought on grounds extraneous to the interest of justice or that offences which are offences against the State go unpunished merely because the Government as a matter of general policy or expediencey unconnected with its duty to prosecute offenders under the law, directs the Public Prosecutor to withdraw from the prosecution and the Public Prosecutor merely does so at its behest."
Orissa v. Chandrika Mohapatra (AIR 1977 .SC903) the two grounds noted as important 'for withdrawal out of five given were "One was that occurrence arose out of Labour Union trouble and since the date of the occurrence there was industrial peace and harmony and the other was that for withdrawal of the prosecution would help maintain cordiality between the rival Trade Unions."
Supreme Court held :-- "We cannot forget that ultimately every offence has a social or economic cause behind it and if the State feels that the elimination or eradication of the social or economic cause of the crime would be better served by not proceeding with the prosecution, the State should clearly be at liberty to withdraw from the prosecution."
19. From the United States of America two decisions relevant to the question in issue are traceable in 18 U SC A 379, on rule 48 of Federal Rules of Criminal Procedure. In the case of U. S. v. Shanahan D. C. Ind. ((1959) 168 Fed. Supp 225it was held that "under this rule, entry of a Nolle Prosequi by Government is a permissive right only requiring in all cases approval of Court in epecrise of its judicial discretion and that "where Court was satisfied by explanatiosn given by United States Attorney that prejudice would likely be worked upon Government in another and far more reaching criminal action it was, as a matter of sound judicial discretion, incumbent upon Court to grant leave requested by Government in its motion to dismiss." In the other case of U. S. v. Doe D. C. Conn ((1951) 101 Fed. Supp. 606 ) it was held that "dismissal of a criminal pro--secution can be approved only on a showing that Government lacks evidence to warrant a prosecution" and that the Court, for effectively exercising this power of consent, is entitled to seek and obtain the necessary factual information.
20. It follows therefore, that on disclosure of satisfactory objectives grounds, relatable to public policy, or public peace, and administration of justice, an application under section 494, Cr. P. C. For seeking Court's permission to withdraw from the prosecution can be filed. The Court's duty is to ensure that such a course "is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes"-AIR 1957 SC 389 or that Courts "own functioning is not thereby pre-empted"-PLD 1977 SC' 451.
21. With such a purpose of the law relating to criminal prosecutions and the principles governing the exercise of power of withdrawal from prosecution in the background, the action taken in the two cases requires to be considered. The case against Saad Shibli involved an individual. It had originated on a purely personal note, an alleged affront to the dignity of his sister, followed by firing resulting in the death of one and injury to another. There were witnesses available, and the Court had examined four of them. The mere existence of a complaint, or a different version in the complaint, or the withdrawal of the complaint, or even the lack of confidence of the complainant in the Police investigation could not be a relevant or decisive factors for withdrawing from the prosecution. These considerations should have, on the contrary, spurred a more thorough investigation of the case, may be a reinvestigation, so as to dispel all misgivings about the fairness and soundness of the investigation. If the accused in the case pleaded right of self defence, not only its availability at the material stages but also its extent had to be ascertained with definiteness and particularlity. This could be done better by the judicial process of trial than in the isolation and .Secrecy of a Government Department. If the case had obtained dispropor--tionate publicity or notoriety of a sort, the public furore over it could be silenced and the public anxiety brought to an end by a fair and speedy trial. In his case in seeking withdrawal from prosecution, the Public Pro--secutor, and the Government were clearly pre-empting the functioning of the Court itself, and the refusal by the two Courts was eminently justified and proper. His appeal, therefore, fails and is dismissed.
22. The other case had an altogether different context and dimension. Country wide elections to the National Assembly seats were taking place on the 7th March. 1977. Elections did take place on that date. As noted in Begum Nusrat Bhutto v. Chief of Army Staff etc. (PLD 1977 SC 657') "people all over Pakistan protested that there had been massive rigging by the Government functionaries."
Such complaints gave rise at certain spots to contemporaneous mass violence throughout the length and breadth of the country. This ca forms a part of the pattern. The dissatisfaction so generated led to more violence and ultimately the very Government considered responsible for it was ousted and substituted by Martial Law Regime. All political activity, and subsequently all political parties, were banned. In this context, after some initial vascillation, a policy decision was taken, of withdrawing from prosecution of all such cases of violence which had taken place on 7-3- 1977 or near about and were concerned with agitational political activity concerning the fair conduct of general elections. I was a policy decision in so far as it involved a principle uniformly applied to all sections without reference of discrimination. It was a matter of public concern because it affected not an individual, not a small group of individuals, nor was it a matter localized territorially but affected the entire length and breadth of the country. The object in withdrawing from the prosecution was not to prejudge the issue but to end perpetuation of acrimony and hatred over a matter which had in the entirely changed context that followed, became so to say, a dead horse. In this case, therefore, the dictates of public policy, as well as requirements of administration of justice fully justified the with--drawal of the case. In the circumstances the Government's appeal is accepted and the permission to withdraw from the prosecution of this case is hereby granted.
23. The end result is that the Criminal Appeal No. K-21/78 (Saad Shibli v. State and another) fails and stands dismissed. The other Criminal Appeal No. K-6/80 (State v. Futtan and others) succeeds and the order refusing permission to the Public Prosecutor to withdraw from the prosecution of the case is set aside and the required permission is hereby granted.