' RAJA MUHAMMAD KHURSHID KHAN, C. J.-This appeal, by leave, is meant to assail the judgment of a learned Single Judge of the High Court passed on 3rd September, 1978. This order vacates the acquittal order of Muhammad Saleem appellant recorded by the learned trial Magistrate on the basis of the withdrawal effected by the prosecutor in prosecuting the accused appellant.
2. Brief history of the case is that the appellant was to face trial along with other accused namely Muhammad Afzal, Muhammad Afsar, Muhammad Nazir, Muhammad Rashid and Muhammad Ashraf in the Court of Magistrate 1st Class Dhirkot under section 307/415/435/436/147/ 148/149, A. P.
C. He, being absent, was proceeded in absentia under the provisions of section 512, Code of Criminal Procedure. The appellant was still at large when on 23rd October, 1976 the Deputy Commissioner Poonch, on the direction of the Senior Minister of the Government and after having the recommendation of the Superintendent of Police, directed the Prosecuting Inspector to withdraw from the prosecution of the case against the appellant. The Prosecuting Inspector, in turn, moved an application for the permission of the Court to withdraw from the prosecution of the case and the learned Magistrate on the same date, i. e. 31st October, 1976, consented the withdrawal and passed the impugned acquittal order.
3. Mukhtar Khan, complainant, made this order subject of a writ petition before the High Court, which was dismissed on 28th January, 1978 as the petitioner had an adequate remedy by way of a revision petition to get his grievance redressed. Thereafter complainant, Mukhtar Khan, filed a revision petition before the High Court for setting aside the order of District Magistrate, Poonch, dated 25th October, 1976 whereby, as stated earlier, Prosecuting Inspector was directed to withdraw from the prosecution of the case against the appellant. An objection about the maintainability of the revision petition to impeach the executive order of the District Magistrate, having been taken a second revision petition in continuation of the earlier one, was moved by the respondent on the 4th of July, 1976.
4. The learned Judge, vide his order dated 3rd September, 1978, vacated the acquittal order mainly on the ground that "prior to allowing the withdrawal of the case, the trial Court should have considered the material available on the record against the appellant as well as the reasons, if any, advanced by the Prosecuting Inspector for exercising this right". This appeal seeks to impeach the said order of the High Court.
5. In the case Muhammed Afzal, Muhammad Afsar, Muhammad Nazir, Muhammad Rashid and Muhammad Ashraf were convicted by the trial Magistrate to undergo various terms of imprisonment, under sections 307, 435, 436 and 342/149, A. P. C. Muhammad Afsar and Muhammad Ashraf were also awarded sentences of one year's rigorous imprisonment under section 148 while others under section 147 to six months' imprisonments. All the sentences were to run concurrently.
6. Appeal taken to the High Court succeeded only in respect of Gulzar Khan who was acquitted. The sentence recorded by the trial Magistrate against other, persons was maintained. The High Court's order of conviction recorded against other accwed, except Gulzar Khan, was sought to be assailed by way of an appeal before this Court.
7. Leave was granted to Muhammad Afzal and others to consider the propriety of the finding of guilt recorded against them by the subordinate Courts. During the pendency of the appeal the parties compromised. Mukhtar Khan, complainant, filed a compromise document. As consideration of the compromise Muhammad Afzal and others have given 20 Kanals of land free of costs to Mukhtar Khan complainant through a gift-deed. While taking into consideration the compromise we, in the belief that ends of justice would be served on taking a lenient view, vide order dated 3rd December, 1983 reduced the sentence to already undergone.
8. We have yesterday recorded the statement of Raja Muhammad Akram Khan, Advocate-General (Public Prosecutor). He states that now in view of the changed circumstances he may, in the capacity of Public Prosecutor, be allowed to withdraw the case against the appellant. Kh.
Muhammad Saeed, the learned counsel for the complainant also, in his statement, is in line with the Advocate-General.
9. The withdrawal is no doubt an executive and not a judicial act but the Court must be satisfied that the executive function of the Public Prosecutor is not improperly exercised or that it is not an attempt of interfering with the course of justice. This view prevailed in 1973 P Cr. L J 584.
10. It may be observed that the Legislature has not defined the circumstances under which a withdrawal is permissible. Therefore, no hard and fast rule can be laid down on the subject. Each case has its own features. Section 494 of the Code of Criminal Procedure has been expressed in general words, because it does not intend to limit the material on which action may be taken. The section contemplates action to be taken upon circumstances extraneous of the record of the case, i. e., in expediency of prosecution, for reasons of State or for necessity to drop the case on ground of public policy, etc.
11. Consent of the Court, it is now well-settled, in a matter is not automatic which must be given as soon as the Public Prosecutor has asked for withdrawal, had it been so the consent of the Court was entirely out o place and redundant. Here in this case the learned Magistrate, we are C satisfied, has not applied his mind and consented the withdrawal without satisfying himself about the propriety of the withdrawal. We, therefore, feel convinced that the judgment of the High Court does not suffer from any illegality, but at the same time we entertain the belief that in view of the changed circumstances it would be in the interest of public policy to allow the withdrawal asked for by the learned Advocate-General (Public Prosecutor) before this Court. The complainant has compromised even with Muhammad Saleem, appellant. His statement to that effect has been recorded on 16th March, 1983. We feel that if the withdrawal is refused it would not only adversely affect the prosecution case because in the changed circumstances the prosecution witnesses may not depose against Muhammad Saleem but it may also frustrate the very spirit of the compromise.
12. In view of the above we believe that the withdrawal made by the Advocate-General (Public Prosecutor) is not arbitrary exercise of his right of withdrawal to interfere with the ordinary course of justice. It, in fact, is made to advance the spirit of law as embodied under section 494, Code of Criminal Procedure.
' Therefore, while accepting the withdrawal now made by the Advocate-General before this Court we acquit Muhammad Saleem, appellant, from all the charger referred to above. The appeal stands disposed of in the manner indicated above.