AURANGZEBL J.- Through the instant criminal revision petition, the petitioner has challenged the impugned order dated 23.12.2024, passed by the learned Additional Sessions Judge-XIII, Peshawar, whereby, the said learned Judge discharged the accused-respondents No.2 & 3 under section 494(a) Cr.PC from the charges levelled against them in case FIR No.1040 dated 02.11.2021, registered under sections 324/427/34 PPC, at Police Station Phandoo, District Peshawar.
02. Brief facts of the case as per the contents of the crime report are that, during gasht, the complainant Mubarak Zeb Khan SHO received information about firing in the area of Service Road Ring Road Jamil Chowk, Peshawar, who, after receiving the said information, rushed to the spot where he found a motorcar bearing Registration No.AFR-021/ICT-ISL in damaged condition, and it was reported to him by the people present on the place of occurrence that three persons had come to hotel in the said motorcar to have a meal, and as soon as, they got into the motorcar, unknown accused started firing at the motorcar, as a result of firing of the unknown accused, two persons sustained injuries where one of them escaped unhurt, who shifted the injured persons to the Hospital.
3. On 27.01.2023, both the injured persons namely lmran Khan and Kamran Khan sons of Muhammad Sultan got recorded their statements under section 164 Cr.PC before the learned Judicial Magistrate-11, Peshawar, wherein, they charged both the accused-respondents for the commission of offence. When the case file was received to the Court of learned Additional Sessions Judge-XII[, Peshawar for trial, the said learned Judge vide order dated 23.12.2024, discharged the accused-respondents. Hence, this criminal revision petition.
4. During the course of arguments, the learned counsel for the accused-respondents No.2 & 3 raised an objection that the petitioner has filed the instant criminal revision petition against the order dated 23.12.2024 of the learned Court below, which is not maintainable. Section 561-A of the Criminal Procedure Code (CrPC) grants inherent power to the High Court to make orders necessary to give effect to any order under the Cr.PC, prevent abuse of the court's process, or secure the ends of justice. This power allows the High Court to quash proceedings in exceptional cases where the trial would cause undue harassment. The Hon'ble Supreme Court of Pakistan in case reported as "Muhammad Akram vs. DCO. Rahim Yar Khan and other" (2017 SCMR 56), held that: "The Courts are sanctuaries of justice, and in exercise of authority to do ex debito justitiae, that is to say remedy a wrong and to suppress a mischief to which a litigant is entitled. No fetters or bar could be placed on the High Court and or this court to convert and treat one type of proceeding into another type and proceed to decide the matter either itself provided it has jurisdiction over the lis before it in exercise of another jurisdiction vested in the very court or may remit the lis to the competent authority/forum or court for decision on merits. Courts have been treating and or converting appeal into revisions and vice versa and Constitution Petitions into appeal or revision and vice versa. Even time consumed pursuing remedy before a wrong forum in appropriate cases could always be condoned (see Shamsul Hag and others vs. Mst. Ghoti and 8 others (1991 SCMR 1135)"
In cases reported as "Capital Development Authority, Islamabad through its Chairman vs. Khuda Bakhsh and 5 others" (1994 SCMR 771) and "Shamsul Haq and others vs. Mst. Ghoti and 8 others" (1991 SCMR 1135), it has been held that: "Learned counsel then reiterated the argument that the High Court was not right in converting the Revision into a Writ Petition at a point of time when the Revision was no more competent. There is no force in this point either. Recently it has been held by this Court in a number of cases that there is no limit and bar on the High Court to convert a revision into a writ petition. This essentially is a question of exercise of discretion."
5. This Court has the power to convert one type of proceedings into another kind and therefore, the present Criminal Revision is converted into a constitutional petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 r/w section 561-A Cr.PC. The office is directed to allot a number to this writ petition today.
6. I have heard arguments of the learned counsel for the parties as well as learned AAG representing the State and carefully perused the record with their valuable assistance.
07. In essence, the petitioner is aggrieved of the discharge of the accused by the learned Trial Court on suo motu under section 494 Cr.PC. In order to know the powers and jurisdiction of the Court under section 494 Cr.PC, the said provision is reproduced herein below: "Section 494 Cr.PC. Effect of withdrawal from prosecution: 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 be 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."
08. Section 494 of the Code of Criminal Procedure, 1808 (Cr.PC ) empowers the Public Prosecutor to withdraw from prosecution of any person, either generally or in respect of any specific offence, before the judgment is pronounced, subject to the consent of the Court. The provision acts as a safeguard to prevent misuse of the legal process in situations where continuing prosecution would serve no useful purpose or is not in the interest of justice. The purpose of section 494 Cr.PC is to ensure that unnecessary or frivolous prosecutions do not burden the criminal justice system. It acknowledges the discretionary authority of the public prosecutor to assess whether the continuation of proceedings is justifiable in light of available evidence, public interest, and judicial economy. However, the prosecution does not have absolute authority to withdraw from prosecution. The provision expressly requires the prior permission of the Court, which acts as a judicial check against arbitrary or malafide withdrawal.
09. To validly invoke section 494 Cr.PC, the following essential conditions must be met:
(a) Initiation by the Public Prosecutor. The application for withdrawal must be made by the Public Prosecutor or Assistant Public Prosecutor appointed by the Government. A private complainant or Investigating Officer has no locus standi to file such an application under this section.
(b) Consent of the Court Withdrawal is not automatic, it requires the Court's informed consent. The Court must be satisfied that the withdrawal is based on lawful reasons, such as, lack of evidence, futility of prosecution, protection of larger public interest, change in policy or circumstances, desire to focus on the principal accused,
(c) Withdrawal must occur before judgment is pronounced. Any application moved after the conclusion of the trial and announcement of judgment is legally incompetent.
10. Section 494 Cr.PC provides two distinct consequences depending on the stage of withdrawal, if withdrawal occurs before the framing of charge. The accused shall be discharged if withdrawal occurs after framing of charge or where framing of charge is not required, e.g in a summary trial, the accused shall be acquitted. This distinction is significant. A discharge does not amount to a final verdict and may not bar future proceedings on the same facts, while an acquittal invokes the protection of section 403 Cr.PC (double jeopardy), barring re-trial for the same offence. Withdrawal may not be allowed when withdrawal is politically motivated or appears to shield an influential accessed or substantial evidence is available, and public interest demands a full trial. In cases of heinous offences like murder, rape or terrorism, unless are compelling reasons. Section 494 Cr.PC serves a dual purpose; it allows the State to avoid wasteful litigation and simultaneously protects the rights of the accused from malicious prosecution. However, this power is not absolute and is exercised under judicial supervision. The Courts are duty-bound to ensure that any withdrawal is not an abuse of process and is based on legitimate legal, factual or policy grounds. The Public Prosecutor's request must therefore be supported by a reasoned application, and the Court must record its satisfaction before allowing the withdrawal.
11. The next question before this Court is, whether the Court can invoke section 494 Cr.PC without an application by the Public Prosecutor? as is held in the instant case. The Court cannot invoke section 494 Cr.PC on its own motion (suo motu). The initiation of withdrawal under section 494 Cr.PC must be obtained exclusively from the Public Prosecutor. The Court's role is supervisory; it can only grant or refuse permission for withdrawal, but cannot initiate the process itself. In section 494 Cr.PC words used are "Any Public Prosecutor may, with the consent of the Court, before the judgment is pronounced, withdraw from the prosecution". This wording clearly establishes two essential requirements (1) initiation by the Public Prosecutor (2) Consent of the Court.
12. Thus, unless the Public Prosecutor moves an application stating valid grounds for withdrawal, the Court cannot act independently under this section. Section 494 Cr.PC is not a suo motu power of the Court, it is exclusively prosecutional in origin, with judicial oversight, if no application is filed by the Public Prosecutor, the Court has no authority to act under this section.
13. Reliance is placed on the judgment reported as "Mir Hassan vs. Tariq Saeed and 2 others" (PLD 1977 SC 451), wherein, it has been held as under:
(c) Criminal Procedure Code (V of 1898)-S. 494- Withdrawal from prosecution-Matters to be determined for purpose of giving consent.
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
(d) Criminal Procedure Code (V of 1898S. 494-Withdrawal from prosecution-Possible grounds for withdrawal and function of Court in such regard.
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 meager evidence to justify a conviction 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 or 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. 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 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 amount to throttling the prosecution or interfering with the ordinary course of justice.
(e) Criminal Procedure Code (V of 1898)S. 494-Withdrawal from prosecution-Application for withdrawal from prosecution not made on any ground of public policy or public peace and interest but merely on grounds directly related to detailed appreciation of evidence-Application, held, in facts and circumstances of case tantamounted to an attempt to throttle prosecution and to interfere with ordinary course of justice-Real question involved being whether prosecution witnesses were mostly of credit and whether circumstances existed for benefit of respondents, such question, held, could only be determined by a proper trial and such function of trial Court could not be allowed to be pre-empted at a preliminary stage by making application for withdrawal from prosecution, The application for withdrawal from prosecution has not been made in this case on any ground of public policy or public peace and interest, but merely on grounds which are directly related to the detailed appreciation of evidence, namely, that the only role assigned to accused respondent is one of instigation, while no overt act has been alleged against other accused respondent that the incident having occurred owing to enmity between the parties, it was not shown whether accused respondents were in any manner connected with . the two opposing fictions, that the number of the jeep in which the assailants are said to have arrived at the spot showed that the vehicle was not a jeep but a Toyota Car, that there was political rivalry between that two respondents and the appellant that respectable witnesses in the locality lave supported the alibi of the two respondents, and that one person bad categorically stated that the two respondents were not members of the unlawful assembly which cart assaulted the deceased, Counsel for the appellant, submitted that this is precisely the kind of exercise which is not to be undertaken for the purpose of deciding whether consent to the withdrawal application should be accorded or not on the ground that there was insufficient or meager evidence to sustain the prosecution. It was submitted that in this case the first information report was lodged promptly within fifteen minutes of the occurrence, that the two respondents were positively named as being among the assailants, and that the leading role of instigators was assigned to second respondent It was also pointed out that during the investigation of the case seven eye-witnesses had supported the prosecution version, and accordingly this was eminently a case in which it should have been left to the trial Court to decide whether the prosecution evidence was worthy of credit or not.
Held : In the facts and circumstances of the case the application made by the Public Prosecutor for his withdraws' from the prosecution of the two respondents did amount to an attempt to throttle the prosecution and to interfere with the ordinary course of justice. This is not at all a case where there is no evidence against these respondents such as could sustain a conviction. The real question in the case is whether the prosecution witnesses are worthy of credit and whether there are circumstances the benefit of which should go to respondents. These are questions which can only be determined by a proper trial and 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.
Reliance can also be placed on the judgment reported as "Saad Shibli vs, The State and another"
(PLD 1981 SC 617), wherein, it was held that:
(a) S. 494-Public Prosecutor-Withdrawal of prosecution-Statute con ferring power of withdrawal on Public Prosecutor-Prescribes no guidelines and indicates no controlling features, except such power having to be exercised before pronouncement of judgment and subject to consent of Court-Government / District Magistrate can take a decision in matter and Public Prosecutor may act on their instructions but Court thereby not absolved from applying its own independent mind to facts of case for granting or refusing consent.
(d) 494-Public Prosecutor--Withdrawal of prosecution-People all over country protesting against massive rigging of elections by Govern ment functionaries and such complaints giving rise at certain spots to contemporaneous mass violence throughout length and breadth of country- Dissatisfaction so generated leading to more violence and ultimately very Government considered responsible for such affairs ousted and all political parties banned-A policy decision, in such context, taken of withdrawing from prosecution all cases of violence as took place concerning fair conduct of general elections-Held : Such decision a policy decision, uniformly applied to all sections without discrimination, a matter of public concern not affecting an individual, nor localized territorially-Dictates of public policy as well as require meats of administration of justice fully justified withdrawal of such case.
14. In the present case, the learned trial Court withdrew from the prosecution and discharged the accused-respondents No.2 & 3 under section 494(a) Cr.PC (without any application filed by the Public Prosecutor, suo mote) not on any ground of public policy or public peace and interest but merely on the grounds directly related to detailed appreciation of evidence would tantamount to an attempt to throttle prosecution and to interfere with ordinary course of justice.
15. In the light of what has been discussed, the impugned order is not legally sustainable.
Resultantly, the instant petition is allowed, the impugned order is set aside and the learned trial Court is directed to proceed with the trial of the accused in accordance with law.