Zahur Ahmad petitioner felt aggrieved by the order of the District Magistrate, Rawalpindi, dated the 8th of April 1971, whereby a case under section 366/342, P. P. C. etc., was registered against nine persons at Police Station ,'C" Division, Rawalpindi, on the 28th of October 1969, at the instance of Shamim Zahur, respondent No. 2, and pending in the Court of Assistant Commissioner, was withdrawn on a statement made by her before the District Magistrate in support of the petition for withdrawal.
The impugned order is challenged .on the legal ground that in view of the opposition of the Public Prosecutor to the withdrawal of the case the learned District Magistrate was not competent to make such an order under section 494, Cr. P. C. which is the only relevant provision contained in the Code of Criminal Procedure.
2. The case has a chequered history, the dispute between the parties having resulted in multiple litigation some of the ramifications of which also engaged the attention of this Court on more than one occasion. The first of these was Cr. M. No. 6080 of 1970, moved by Mst. Shamim Zahur herself under section 561-A, Cr. P. C. for quashing of the criminal proceedings of the same case which was subsequently withdrawn by the District Magistrate vide the impugned order. She alleged, therein that being a Graduate of about 24 years of age she had freely and voluntarily contracted marriage with Akxam Hayat, the principal accused in the case, on the 25th of November 1968. She denied having submitted any affidavit to the police which appears to have formed the basis of the registration of the criminal case and explained that having been threatened by her father Zahur Ahmad, the present petitioner, with dire consequences, she was made to sign a blank paper under duress. In support of the petition, she also attached a copy of the Nikahnama. This petition, which falsified the allegations of her abduction and wrongful confinement etc. was admitted by Shaukat Ali, J., as he then was, vide his Lordship's order dated the 28th of August 1970. Before this petition could be finally disposed of Mst.
Shamim Zahur filed yet another Petition No. 6617 of 1970, wherein she prayed that any order made by the trial Magistrate for her so-called recovery or arrest may be cancelled for the reason that she was freely and voluntarily living with her husband Akram Hayat. In support of the petition she personally appeared in this Court and the miscellaneous petition was disposed of vide order dated the 21st of September 1970, with the observation that the petitioner shall neither be arrested nor taken into custody in respectof the criminal proceedings. Subsequently, Zahur Ahmad petitioner filed Cr. M. No.7084 of 1970 in this Court praying therein that Cr.M. No.6080 of 1970 filed by Mst.
Shamim Zahur may be dismissed as there was no justification for the invocation of the jurisdiction of this Court under section 561-A, Cr. P. C. It was further prayed that the matter be left for determination by the trial Magistrate, who had the requisite jurisdiction to deal with it. Zahur Ahmad petitioner his daughter Mst. Shamim Zahur and Akram Hayat, whom she claimed to be her husband, appeared before Muhammad Afzal Khan, J. on the 15th of October 1970, when learned counsel for the parties agreed that Cr. M. No. 6080 of 1970, filed by Mst. Shamim Zahur for quashing of proceedings shall nor be pressed by her, that the Assistant Commissioner shall expeditiously dispose of the case for recording her statement as early as possible. His Lordship directed accordingly and disposed of Criminal Miscellaneous No. 6080 of 1970. Before her statement could be recorded by the learned trial Magistrate, Muhammad Zahur moved a petition before the District Magistrate on the 20th of November 1970, seeking the withdrawal of the case. After recording her statement on the 8th of April 1971, the learned District Magistrate passed the impugned order as stated earlier, giving rise to the present petition.
3. Learned counsel for the petitioner, supported by the learned counsel for the State, contends that the only relevant provision which could be invoked by the learned District Magistrate for the withdrawal of the case is the one contained in section 494, Cr. P. C., which, in fact, empowers the Public Prosecutor, and not the District Magistrate, to withdraw from the prosecution of any person of course with the consent of the Court, lt is argued that in the instant case when the Public Prosecutor had clearly opposed the withdrawal of the case the learned District Magistrate had exceeded his jurisdiction in making the impugned order. It is next submitted that even otherwise the order of withdrawal came into conflict with the order of the High Court dated the 15th of October 1970, referred to earlier whereby the Assistant Commissioner was directed to proceed with the trial and as such was without jurisdiction.
On the other hand, learned counsel for the respondent contends before me firstly that the order of withdrawal was passed by the District Magistrate in exercise of his executive authority and not in the course of judicial proceedings, and as such could not be called in question in this Court in exercise of its revisional jurisdiction. Reliance is placed in this regard onPLD 1967 Pesh. 65.
4. Having considered the legal position, T am not convinced that the learned District Magistrate was competent to pass the order of withdrawal in the circumstances of the case, particularly when the Public Prosecutor did not feel inclined to withdraw from the prosecution of the case. The authority relied upon by the learned counsel for the respondent proceeds on entirely distinguishable facts. Nor for that matter, do I find much substance in the contention raised on behalf of the respondent that it was an executive order and as such could not be challenged in revision. In the circumstances, therefore, it appears difficult to sustain the impugned order on the legal plane. There is, however another aspect of the matter. Having considered the background of this litigation wherein the girl, who has at least twice appeared in the High Court in person and once before the D. M. is a Graduate of about 24 years of age and has cried from the housetop that she has voluntarily contracted a marriage with Akram Hayat and also gave birth to two still-born children, I am of the opinion that any further continuation of this litigation would be merely an exercise in futility which would serve no useful purpose. It is unfortunate that while marrying Akram Hayat she did not consult or take into confidence her father, the petitioner, who did not consent to it, yet in the circumstances, there is not a ghost of a chance of the case resulting in conviction when the prosecutrix herself is not going to support it. Accordingly, while setting aside the impugned order, I am not inclined to direct re-agitation of these wasteful and futile proceedings.
5. Learned counsel for the petitioner contended that once the impugned order is set aside, the earlier order dated the 15th of October 1970, passed by Muhammad Afzal Khan, J. would stand automatically revived and any order passed by this Court in derogation of the same would amount to reviewing that order which this Court would not be competent to do. It may be observed, in the first instance, that subsequent to the aforesaid order his Lordship passed yet another order in Cr. M.
No. 7937 of 1970, a petition filed by Zahur Ahmad, the present petitioner for cancellation of bail allowed to the accused persons in the criminal case in question. When it was brought to his Lordship's notice that the case had already been withdrawn, the petition was dismissed as having become infructuous. In fact, Mr. Munawar Akhtar, learned counsel for the petitioner, who also represented the latter before his Lordship had himself stated that the case may be disposed of as having been withdrawn. No grievance was made by the petitioner before his Lordship of the so-called improper withdrawal. But assuming that he was still competent to file the present petition, as in all probability he was, it cannot be reasonably argued that the termination of these futile proceedings would amount to reviewing an earlier order. The revisional jurisdiction of this Court is vast enough to allow the exercise of all powers conferred on it by sections 423, 426, 427 and 428 read with section 561-A, Cr. P. C. and would make it fully competent to put an end to this patent abuse of the process of Court.
6. The upshot of the discussion, therefore, is that while technioally setting aside the impugned order, I quash the proceedings and discharge the accused. -- .