' On the report of one Saabar against Aqil Khan and Iftikhar sons of Qauresh Khan, resident of Toru, Tehsil and District Mardan, a case was registered vide F.I.R. No, 328, dated 9-12-1980, in Police Station Saddar Mardan under section 307/34, P.P.C. After investigation of the case, a challan was submitted in the Court of Magistrate 1st Class, Mardan on 9-2-1981. The learned Magistrate ordered the case to be registered and summoned the accused for 23-2-1981.
2. The case lingered on without any substantial progress, as the order-sheets of the learned trial Court reveal, when on 10-6-1981, accused-respondent Iftikhar, while praying for the adjournment of the case, informed the Court that a compromise has been effected between the parties and the papers in respect thereof are lying with the District Magistrate, Mardan. The case was thus adjourned by the learned Magistrate to various dates awaiting the receipt of the compromise papers. These were, however, received on 16-7-1981 but were returned for some clarification to the District Magistrate and on their receipt again on 30-8-1981, the learned trial Magistrate passed the impugned order which shows that:-
(i) the State was not represented,
(ii) the District Magistrate has already allowed an action in terms of section 494, Cr.P.C. Against both the accused,
(iii) consequently the case against the accused was withdrawn, and
(iv) the accused were acquitted.
' The Provincial Government took exception to the impugned order and filed an appeal under section 417, Cr.P.C. On inter alia, the ground that the case could not be withdrawn against Aqil Khan, accused-respondent because of the fact that he was a proclaimed offender and he neither appeared before the District Magistrate nor before the trial Magistrate and accordingly the impugned order is illegal. On this sole point too, the appeal was admitted as per order of this Court, dated 28-3-1982.
3. I have heard Qazi Shamsuddin, Advocate, the learned counsel for the State and K.G. Saber, Advocate, the learned counsel for the 2 accused-respondents who are also present in person. With the valuable assistance of the learned counsel for the parties, I have also perused record of the case with considerable degree of care.
4. The learned counsel for the appellant while reiterated the point on which this appeal was admitted to full hearing, contended that no formal prayer was made on behalf of the prosecution for the withdrawal of the case; that the learned trial Court did not appply his own mind and was influenced more by the order of the District Magistrate in giving his consent for the withdrawal of the prosecution.
5. On the other hand, the learned counsel for the respondent maintained that no charge has been framed against the accused-respondents and, therefore, under section 494, Cr.P.C. They stood discharged and as such the appeal against their acquittal is not competent in law. He also urged that more than eight years have passed since the occurrence had taken place, which was a case of ineffective firing and the impugned order has not occasioned such miscarriage of justice as would call for setting it aside and to make the accused-respondents to undergo the rigour of a fresh trial particularly when the feud between the parties has come to an end as a consequence of the compromise.
6. I have given my serious consideration to the matter. A perusal of the record would indicate that this case has also been handled in the Court of learned trial Magistrate in the same haphazard manner as is usually practiced in such like cases. It is a matter of surprise that while in the challan accused-respondent, Iftikhar is shown as an absconder, no document is on the file to confirm it inasmuch as there is neither any warrant under section 204, Cr.P.C. Nor the statement of any search witness has been recorded muchless any order passed by the Court to declare the said accused-respondent as an absconder. In fact the impugned order rather gives out to show that both the accused were present on bail. In such a situation, it cannot be urged with any amount of certainty that, legally speaking, the accused-respondent was an absconder and, therefore, the impugned order of withdrawal of prosecution qua him was illegal. As is held by this Court in case Mst. Zarizadgai v. Fida Muhammad and others reported in PLD 1989 Pesh. 10, the accused person can be considered absconder only when a warrant under section 204, Cr.P.C. Has been issued and evidence has been recorded to the effect that the accused person is concealing himself with the purpose of avoiding the service of such warrant.
7. In this context of the matter, both on the legal and factual premises, the accused-respondent, Iftikhar, cannot he held as an absconder and as such the contention of the learned counsel for the State, in this regard, loses its force.
8. Regarding the other points, I tend to agree with him, as is evident from the impugned order, that P.S.I. Being absent, there was neither any representation on behalf of the State nor any formal application for withdrawal was made in this respect. It is also established from the record that the learned trial Magistrate blindfoldedly followed the order of the learned District Magistrate whereby he had accepted the compromise effected between the parties and consequent withdrawal of the prosecution against the respondents. It is an act which again is not only violative of the law as embodied in section 494, Cr.P.C. But also is a pointer as to how great and imminent is the need for compliance with the Constitutional requirement of separating the judiciary from the Executive.
9. Let it be borne in mind that an order of discharge, or, as the case may be, acquittal under section 494, Cr.P.C. Is a judicial order and in passing the same the learned trial Court is required not only to apply his mind to the facts of the case but also to record reasons in support of its granting the consent of withdrawal. It is further to be noted that the consent within the meaning of section 494, Cr.P.C. Means the consent freely given by an independent Magistrate who must not surrender his wisdom or authority to the District Magistrate and must act judiciously in order to arrive at his own independent conclusion on a consideration of all the relevant circumstances. In the instant case, however, but for the peculiar facts of this case, I would have no hesitation in holding the impugned order as manifestly against the provision of 494, Cr.P.C. And, speaking strictly, in no way in accordance with the law.
10. The foregoing legal aspect of the case notwithstanding, I do not feel inclined to make the accused-respondents face their trial for the reasons that besides being the case of an ineffective firing, the withdrawal from the prosecution of the instant case and the acquittal of the accused- respondents is resulted as a consequence of a compromise which has ended any chance of feuds between the parties in the future and which in fact has stood the test of time inasmuch as no recurrence of any criminal act on the part of either party after the present case is alleged to have taken place. In such circumstances, the action taken under section 494, Cr.P.C. Has occasioned no miscarriage of justice.
11. I also tend to agree with the learned counsel for the accused-respondents that in the absence of framing a formal charge, the impugned order of acquittal, in fact, is the order of discharge and an appeal against it could not be filed under the law, for, section 417, Cr.P.C. Contemplates an appeal against an order of acquittal only. Such being the case, this appeal, obviously suffers from incompetency in law.
12. Resultantly, I hereby dismiss this appeal. The accused-respondents are on bail. Their bail bonds stand discharged.