' This criminal revision petition and section 439, Cr. P. C. Filed by Abdul Hamid Babar, the first informant, challenging the order dated 7-2-1982 of the trial Magistrate allowing the withdrawal of the case under section 494, Cr. P. C. Registered by Police Station Dabgari under section 379, P. P. C., read with section 14 of Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979) against Hidayatullah accused-respondent has arisen in the following circumstances.
' On the report dated 25-8-1980 of the petitioner that Hidayatullah accused-respondent had committed the theft of an iron girder belonging to Municipal Corporation Peshawar which was fixed in public street of Mohallah Nau-Kashrniri by removing the same, a case under the above mentioned sections of law was registered against Hidayatullah accused-respondent. The proceedings were pending in the Court of Mr. Shoukat Ali Khan, Magistrate, 1st Class Peshawar who on 7-2-1982 passed the impugned order. To appreciate the controversy between the parties it will be beneficial to produce the said order :- "Accused present alongwith the defence counsel.
' The defence counsel produced letter No, 10806-07/MF, dated 6-2-1982 from Chief Officer M. C.
Peshawar to the D. M. With the remarks of the D. M. Thereon. "The case may be withdrawn as requested by the M. C.".
' The P. S.
1. Of the Court has also endorsed the request of withdrawal of the case in the light of order of D. M.
1, therefore, order that the case be filed as withdrawn under section 494, Cr. P. C., against the accused as per request of the D. M. Peshawar.
' The accused is acquitted and the stands discharged of the bail bonds. Case file be consigned to V. R. R. After necessary completion."
2. It was vehemently contended by the petitioner who argued the case himself that the learned.
Magistrate consenting to the withdrawal of the case had not applied his independent mind to the facts of the case. No reason for withdrawal has been given by the Court which renders the order to be arbitrary and not one in which it can be said that the discretion has been exercised judicially.
There can be no two views about the proposition that an order under section 494, Cr. P. C., is a judicial order passed by a Court in course of judicial proceedings which can be challenged in a revision before the higher forum as has been done in the present case. A judicial exercise of the discretion means consideration of all the facts and circumstances of the case available to the Court and also of the grounds on which the withdrawal is sought. An order under section 494, Cr. P.
C. On the granting of consent being an order of acquittal is a judicial order and, therefore, the Court Must record reasons in order to enable the revisional Court to judge whether it has been rightly made. A perusal of the impugned order would show that no reason has been given by the trial Court for allowing the withdrawal of this case. Rather a novel procedure has been adopted in this case. A letter was produced before the Court by the counsel of the accused-respondent whereby a request was made by the Municipal Corporation Peshawar to withdrawal the case. It also contains the endorsement of the District Magistrate that the case may be withdrawal as requested by the Municipal Corporation. The Prosecution Sub-Inspector who was present in the Court also concurred with the request of withdrawal which would show that the request to withdrawn the case was not initiated by the Public Prosecutor. To obtain the consent of the Court for withdrawal of the Public Prosecutor as can be inferred from section 494 of the Code has to give some reasons for the withdrawal of the case and the Court giving the consent has also to record its reasons for giving the consent. Giving or withholding of consent by a trial Magistrate is a judicial act and the power of giving a consent has to be exercised judicially and not arbitrarily. Since the giving of consent is a judicial act it is open to revision by the superior Courts. Unless reasons are recorded how can the revisional Court decide whether the trial Magistrate has exercised his discretion judicially or arbitrarily. Moreover, while giving. Consent the Magistrate should not be influenced by what his superiors direct. The consent should be of a free and independent mind and the Magistrate should not subordinate his authority to that of the District Magistrate or then Government. He should look into the reasons advance for the withdrawal of the case and come to his own independent judgment whether the request should be allowed or not. Reliance in this regard has been placed by the petitioner and the learned Assistant Advocate-General on A waz Gul v. Habib Khan , The State v. National Fire Insurance Co. , Sh. Rafique Ahmad v. Muhammad Farooq and others , Emperor v.
Milanmal Hadasmal and another and The State of Bihar v. Ram Naresh Panday 5.
3. The learned counsel for the respondent relying on Syed Muhammad Ali Shah v. Sharaf Din and others contended that the Court need not record reasons while according permission to the Public Prosecutor to withdraw the case. With profound respect I am of the view that the judgment does not correctly interpret the law on the subject. Besides a perusal of the judgment would show that a contrary decision of the same Court reported Awaz Gul v. Habib Khan was not brought to the notice of the learned Judge by the parties. It was further submitted on behalf of the respondent that it is a case of theft of a single piece of iron girder and that even if the order of withdrawal is set aside and the case is remanded there is not even a remote possibility of the accused being convicted. This argument too is devoid of force. Not a single witness has so far been examined and it will be premature to judge the case on permits. Prosecution has to be given a fair chance to prove its case.
4. For what has been stated here before the revision petition is accepted. The impugned order allowing the withdrawal of the case and acquitting the accused-respondent is set aside. The file of1 2 3 4 6 the case is to be sent to the District Magistrate for entrusting it for disposal to a competent Magistrate other than the one who had passed the impugned order. PLD 1959 (W. P.) Pesh. 186 PLD 1958 Kar. 418 1973 P Cr. L J 584 AIR 1943 Sind 161 PLD 1957 SC (Ind.) 361 PLD 1967 Pesh. 65