' This criminal revision application under section 439 read with section 561-A, Cr.P.C. Has been filed by Muhammad Nawaz Khan against the order, dated 20th April, 1988 of IVth Additional Sessions Judge, Karachi (East).
2. The facts are that case under section 302/34, P.P.C. Is pending for trial in the Court of IVth Additional Sessions Judge, Karachi, and respondent Usman Murri was one of the accused. The Government of Sindh directed the Public Prosecutor for withdrawal of the case. Accordingly such application under section 494, Cr.P.C. Was moved and respondent has been acquitted.
3. This revision application was pending under the objections since 21st May, 1988 and the learned counsel on various hearings failed to comply with the objections and finally this Court admitted the revision by an order dated 30-3-1989 and directed the Advocate of the petitioner to file documents and furnish the address of the respondent. However, this revision application came up on 17-94989, when another Advocate Mr. Muhammad Jamil appeared and filed power. He requested for short adjournment. On the other hand Mr. M.A. Kazi filed power on behalf of the respondent No,2. At the request of Mr. Jamil, revision was fixed on 24-9-1989 and notice was ordered to the Advocate- General. The matter came up for hearing on 24-9-1989 and there was an application on behalf of Mr. Jamil for adjournment that he is sick. Mr. M.A. Kazi, pointed out that he saw Mr. Jamil in the premises of the High Court. I, therefore, had no reason to disbelieve the statement of Mr. Kazi and heard his arguments. At 11-15 Mr. Jamil appeared and requested for one days' adjourment, which was granted. When matter came up for hearing on 25-9-1989, Mr. Jamil filed an application for withdrawal of power and stated that petitioner has taken away file from him. The petitioner again applied for adjournment. The application was dismissed as no good cause was shown.
' Mr. G.R. Warsi present for the A.-G. And I have heard him.
' In revision applications, in view of the case reported in PLD 1983 FSC 497 Court is not bound to hear all the parties, but notice is necessary. In this case, the adjournments were granted and 2 advocates were appearing. Mr. Salahuddin has neither withdrawn his power nor did he appear. Mr. Jamil also withdrew his power.
' Mr. M.A. Kazi submitted that order of the acquittal is proper as the learned Public Prosecutor has withdrawn from the prosecution under the directions of the Government. He has submitted that case has been withdrawn because co-accused Shabbir Ahmed in judicial confession has not implicated the respondent Usman Murri. He has referred to the cases reported in PLD 1957 SC 361 and AIR 1949 Pat.
223.
' Mr. G.R. Warsi, appearing for the State, does not support this revision application and stated that the order of the learned Additional Sessions Judge is proper and revision is not maintainable.
' The Secretary to the Government of Sindh, Home Department, by an order dated 14-4-1988, addressed to the District Magistrate, Karachi, (East) stated that the District Public Prosecutor, Karachi, be advised to move an application under section 494, Cr.P.C. In the concerned Court for withdrawing the case against accused Usman Murri only. Consequently, the District Magistrate, Karachi (East) sent letter to the District Prosecutor for withdrawal of the case against the respondent only. The learned Public Prosecutor filed an application on 20-4-1988 under section 494, Cr.P.C. For withdrawal of the case giving reasons therein. Application was allowed. The main grounds taken in this revision application are that the trial Judge has no jurisdiction, and the respondent was A fugitive from law and impugned order amounts to interference of the ordinary course of justice and is an abuse of process of law. The reliance is placed in case reported in PLD 1956 Kar.
385. Subsection (5) of section 439, Cr.P.C. Provides that when under this Code an appeal lies and no appeal is brought, no proceedings by way of a revision shall be entertained at the instance of the parties, who could have moved appeal. In this case, there is nothing to show that petitioner has moved the concerned authorities for appeal. It is a settled law that revision application only lies on the points of law. In case reported in PLD 1957 SC 361, the powers of the Public Prosecutor and functions of the Court in these circumstances have been given in detail. In another case referred by Mr. Kazi, AIR 1949 Patna 222, it has been held that discretion is to be exercised by the Court judicially. In case of Syed Muhammad Ali Shah v. Sharafuddin and others reported in PLD 1967 Pesh. 65, it has been held that order permitting withdrawal in Court need not record reasons in writing and failure to record reasons does not ipso facto vitiate order of withdrawal. In this case, Public Prosecutor has given the reasons and trial Court allowed the withdrawal and acquitted.
Under section 494, Cr.P.C. Any Public Prosecutor may, with the consent of the Court before the judgment is announced, withdraw from the prosecution of any person. There is no embargo or conditions laid down on the Public Prosecutor or the Court to pass an appropriate order. In these circumstances, I do not find any irregularity or illegality in the impugned order. This revision application, having no merits, is dismissed.
Revision .