' These two Criminal Revision Applications bearing Nos.
10. Of 1989 and 3 of 1989 under sections 435 and 439, Cr.P.C. Have been filed against the ommon order dated 18th January, 1989 of learned Special Judge (Central) arachi. The identical point is involved in both the revisions, therefore, I propose o dispose of these revisions by this single order.
2. The facts are that Case No, 122 of 1978 under section 161, P.P.C. And 109, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947 is pending against Dr. Nasir A. Shaikh and Dr. Mehjabin wife of Dr. Nasir A. Shaikh in the Court of Special Judge (Central), Karachi. The Government of Pakistan, Ministry of Interior in letter No, 9/12/88-FIA(I), dated 27th IX:cember, 1988 in pursuance of subsection (4) of section 10 of Pakistan Criminal Law Amendment Act, 1958 passed an order for withdrawal of the prosecution against Dr. Nasir A. Shaikh, Ex-Director-General, Health. The Public Prosecutor, Ministry of Interior, F.I.A S.Z., Karachi filed an application under section 10(4) on 4th January, 1989 in the Court of Special Judge (Central), Karachi for permission to withdraw the above case. Meanwhile the Government amended the withdrawal order by letter dated 5th January, 1989, in which it was desired to withdraw the case against Mr. Nasir A. Shaikh, Ex-Director-General Health and all other accused generally in respect of the above-said offence. Accordingly the District Public Prosecutor moved another application in the Court of learned Special Judge (Central), Karachi, who by an order dated 18th January, 1989 dismissed the application of the Public Prosecutor.
' Being aggrieved with the order of the learned Special Judge, Criminal Revision Application No,10 of 1989 was filed by Dr. Nasir A. Shaikh and Mrs. Mehjabin Shaikh. It was fixed on 28-3-1989, when it was pointed out by Mr. M. Usman Pirzada that State has also filed a separate Revision Application against the same order i,e, Criminal Revision Application No, 23 of 1989 and same was also fixed by the Roster for Katcha Peshi. By consent of the learned counsel, this revision application was admitted and Mr. A.Q. Halepota, who was appearing in Criminal Revision Application No, 10 of 1989 for the applicants undertook to file power. Learned Assistant Advocate-General, Sind and Mr. Muhammad Usman Pirzada and Mr. A.Q. Halepota requested that both the revisions be heard together. Accordingly on that date, I heard Mr. Halepota and Mr. Abdul Ghafoor Mangi, learned Assistant A.-G. And Mr. Muhammad Usman Pirzada, Public Prosecutor in Criminal Revision Application No, 23 of 1989, who had argued partly and requested that some short adjournment may be granted on the ground that Deputy Attorney-General may probably argue these revision applications. Both the revision applications were adjourned to 30-3-1989, when Deputy Attorney- General did not appear and Mr. Muhammad Usman Pirzada, Public Prosecutor, Ministry of Interior, F.IA. Argued the matter.
3. Mr. A.Q. Halepota argued that order of the learned Special Judge suffers from legal infirmities and is liable to be quashed. It was submitted that the learned Special Judge has disposed of the applications on the analogy of section 494, Cr.P.C. And according to him it is not applicable in the cases of this nature as there is no condition for the permission of the Court under section 10(4) of the Criminal Law Amendment Act, 1958. It is submitted that when withdrawal application is filed by the Federal Government, it amounts to withdrawal of sanction from prosecution, therefore, case cannot proceed. He has also argued the case on the merits and submitted that both the accused were involved with mala fide and they have been harassed to the extent that wife of Dr. Nasir A.
Shaikh was dragged for 10 years in the Court, therefore, the Federal Government has rightly allowed the withdrawal of the case. It is also submitted that Special Judge on the identical point has allowed the withdrawal of another case on the same facts. He has referred to the cases reported in PLD 1963 W.P. Kar. 833, PLD 1965 W.P. Quetta 1 and PLD 1975 Lah.
651.
' Mr. Muhammad Usman Pirzada, Public Prosecutor, argued that it is the duty of the Public Prosecutor to consider whether there are proper grounds for withdrawal of the case and law does not permit of any shifting of that duty. His contention is that it is not necessary for the Public Prosecutor to give the reasons for the withdrawal. He has referred to the case reported in PLD 1956 Kar.
365. He argued in Special Law when application is made, the permission of Court is not necessary as required under section 494, Cr.P.C. He has referred to PLD 1957 SC (India) 361 and PLD 1967 Pesh.
65.
' Mr. Abdul Ghafoor Mangi, learned Assistant Advocate-General has supported the Criminal Revision No, 10 of 1989 and has submitted that order of the learned Special Judge is liable to be quashed.
4. The case is pending against Dr. Nasir A. Shaikh and his wife Dr. Mehjabeen under sections 161 and 109, P.P.C. Read with section 5(2) of the Criminal Law Amendment Act, 1958. There is a specific provision under this Act for withdrawal of the cases. Section 10(4) of the above Act reads as under:- "No prosecution under this Act against any person either generally or in respect of anyone or more of the offences for which he is being tried shall be withdrawn except under the orders in writing of the appropriate Government."
' Section 10(1) of the Act reads as under:- "An appeal from the judgment of Special Judge shall lie to the highest Court having appellate jurisdiction in the territorial limits, in which the offence is tried by Special Judge and the same Court shall also have powers of revision."
' In this case the Special Judge is a Sessions Judge, therefore, this Court (High Court) is an appellate authority and also has the revisional powers under section 10(1) of the Act irrespective of the powers vested under section 435/439, Cr.P.C.
' In other cases any Public Prosecutor may with the consent of the Court withdraw from the prosecution and permission of Government for withdrawal of the case is not the requirement in law. For convenience, section 494, Cr.P.C. Is reproduced as under:- 494, Cr.P.C.-- 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)."
From the above two provisions in different laws, it is clear that the cases which are challaned under the Criminal Law Amendment Act, 1958 cannot be withdrawn by the Public Prosecutor without the orders in writing of appropriate; Government. There is no embargo of consent of the Court under section 10(4) ofl A the Act. This is a 'special law for which Special Judges arc appointed by the Government to be dealt with and punished in accordance with the Criminal Law Amendment Act, 1958 and prosecution sanction is required which is not necessary in other cases. In case the sanction is specifically competent Authority, the very cognizance of the case could be challenged provided if sanction is not received within 60 days it is presumed that sanction is granted. When there is a special provision under the Special Act, in my humble view the provisions of section 494, Cr.P.C. Do not attract to this case and Public Prosecutor in such cases is not empowered by law to withdraw from the prosecution as it is required under section 494, Cr.P.C. The Public Prosecutor has no absolute power in the Act, it is subject to limitation under section 10(4) of the Special Act. In case of the State v. Malik Riazur Rehman reported in PLD 1965 W.P. Quetta 1(6) in para. 10 it was observed as under:- "10. It was urged on behalf of the respondent that the Sanctioning Authority has moved the appropriate authority for the withdrawal of the case. This, however, cannot lead to the inference that the sanction for prosecution was defective. In law it is open to the Sanctioning Authority after sanctioning prosecution to move for the withdrawal of the case. There is nothing wrong in it."
' In case of Public Prosecutor (Anti-Corruption) Karachi v. Ch. Muhammad Hafiz reported in 1963 West Pakistan, Karachi 833, their Lordships have dealt with the question of sanction. In this case, it has been held that if the sanction has been once accorded, as it was by the operation of law, and the Court has become seized of the case and has assumed jurisdiction and started the proceedings, it appears to us that the sanctioning authority, who had failed to grant the sanction within 60 days would not have any further say in the matter once that period has expired.
Thereafter, the jurisdiction is of the Court. The entire para is as under:- "It is clear that this sanction is not one which is granted by the appropriate Government but has come into existence by the operation of law. If the sanction had been once duly accorded, as it was by the operation of law, and the Court had become seized of the case and had assumed jurisdiction, and started the proceedings, it appears to us that the Sanctioning Authority who had failed to grant the sanction within 60 days would not have any further say in the matter once that period expired. Thereafter the jurisdiction is of the Court. The sanction which came to be accorded by the operation of law independently of the appropriate Government cannot be vitiated by something which that Government does after the matter has passed out of its hands. Therefore, we cannot treat this case as a case of no sanction within the meaning of the law as it stands today by virtue of the order of the Administrator about the withdrawal of this case. Once the Court had become seized of the matter after the accord of sanction, then it would appear that the only way to deal with the matter would be to withdraw the case, as indeed it was attempted, by the order referred to above."
' I, therefore, respectfully differ with the arguments of Mr. Halepota that once an application is made for withdrawal, then it is presumed that sanction has been withdrawn. Therefore, the present case cannot be treated as of no sanction within the meaning of law after filing application under section 10(4) of Special Act. The learned Special Judge in para. 4 of the impugned order has observed that Public Prosecutor in his application dated 10-1-1989 has not disclosed the ' grounds of withdrawal of the case nor argued on what basis the Federal Government is of the view that registration of the case against the accused was not justified. He has also observed that under section 494, Cr.P.C. Consenting to withdrawal is a judicial order for which there must be the reasons and discretion for withdrawal is to be exercised judicially and while exercising such decision material evidence on record is kept in view even though the evidence may not have been judicially recorded. In para. 5 of the order, he has observed as under:-
5. "I have gone through entire record and am of the view that on the strength of material available on record, there is absolutely no justification for withdrawal of this case. Withdrawal is not absolute prerogative of the Government. It depends upon the applicability of established judicial principles.
Material available on record, in this case, indicates clear involvement of both the accused in the said crime. Although learned Public Prosecutor argued that record was re-assessed, but he was not able to point out that, what material as a result of reassessment was secured, which falsified the oral and documentary evidence collected earlier. Also the ground of 'interest of justice', under the circumstances, appears to be vague and unconvincing."
' Finally in para. 7, he has stated that case is not fit for withdrawal. Probably the entire material available on record was not brought to the notice of the Government and he rejected the application. The impugned order to the extent of withdrawing of the cases under section 494, Cr.P.C. And observation made by the learned Special Judge appears to be justified because the consent is required under section 494, Cr.P.C. And it is a discretion of the Court when such application is moved by the Public Prosecutor, but as stated above, this is a case which comes under the ambit of the Special Law for which special provisions have been made in the same Act for withdrawal of the cases where orders in writing of appropriate Government are necessary. The Special Law overrules the provisions of ordinary law applicable to all cases. As such in these cases section 10(4) of the Act is relevant and no consent of the Court is required. When there is an order for withdrawal by the appropriate Government, the question of not bringing the material to the notice of the Government does not arise. In my view, it is only prerogative of the Government under the Special Law to order for withdrawal of the cases. In case of the PLD 1957 SC (India) 361, the facts are different from the present case as the case was to be withdrawn under section 494, Cr.P.C. In this case, the functions of the Court and Public Prosecutor have been dealt with in detail.
In case of Shaikh Muhammad Ali Shah v. Sharifuddin and others, it has been held that absence of reasons for withdrawal does not ipso facto vitiate the order of withdrawal.
5. When an application under section 10(4) of the Pakistan Criminal Law Amendment Act, 1958 on the basis of orders in writing of appropriate Government is moved and it is a State case then permission or consent of Court is not necessary. There is identical provision in section 345, Cr.P.C.
The caws which are compoundable and application is made, the Court has no option, but to accept compromise, provided in some cases the permission of Court is required for which the trial Court has discretion. Therefore, in this case neither the Public Prosecutor is competent to withdraw the case, except under the orders in writing from appropriate Government nor the consent of Court is necessary. It is for the appropriate Government to apply mind independently for withdrawal of such cases.
6. For the reasons stated above, the order of the learned Special Judge, dated 18th January, 1989 is set aside and both the revisions are allowed with the result that that appropriate Government after having withdrawn from the prosecution by the application under section 10(4) of Criminal Law Amendment Act, 1958 the appellants Dr. Nasir A. Shaikh and Dr. Mehjabcen Shaikh stand acquitted.