Applicant Pahalwan has called in question acquittal of respondent No.1, Abdul Wahid Machhi in the amalgamated Sessions Cases No.187 of 1982 and No.61 of 1983, by the 1st Additional Sessions Judge, Kandhkot. 2 Respondent No.1, Abdul Wahid and Mahmood were accused in said Sessions Cases Nos. 61 of 1983 and 187 of 1982 respectively. Both the Sessions cases were amalgamated on 15-1- 1985. Allegations against Abdul Wahid and Mahmood were that on 31-8-1982 at 9-00 p.m., they had intentionally caused death of Paryo by inflicting on him hatchet injuries. In respect of such murder F.I.R. No.73 of 1982 was lodged by Muhammad Ismail at Police Station Tangaani on 1-9-1982.
3. The trial Court framed the charge Exh.2 against Abdul Wahid (respondent No.1) and Mahmood on 15-1-1985 for the offence punishable under section 302/34, P.P.C. Both of them pleaded not guilty to the charge.
4. Prosecution examined P.Ws. Ghulam Mustafa Exh.8 (Tapedar), Muhammad Afsar Exh.10 (A.S.I.), Dr. Manzoor Ahmed Exh.Ll (Medical Officer) and Imamuddin Exh.15 (A.S.I.). S.H.O. Sanaullah was given up under statement Exh.13. During pendency of the case accused Mahmood was murdered on 12- 1-1986 as per the F.I.R. Exh.10-A produced by H.C. Muhammad Afsar Exh.10. Hence case against Mahmood stood abated and such order was passed by the trial Court on 29-7-1986.
5. Trial Court issued coercive process for P.Ws. Muhammad Ismail (complainant), Lal, Pahalwan, and Gulab but they could not be served. H.C. Lal Muhammad, who was entrusted with service of process, deposed in the trial Court on 23-6-1988 that he went to village of said witnesses where he learnt that the said witnesses had migrated away to some unknown place and their whereabouts were not known. With such statement H.C. Lal Muhammad produced the warrants Exhs.18-C,18- D,18-E, and 18-F.
6. On the basis of deposition Exh.18 of H.C. Lal Muhammad, the A.P.P. Incharge of the case filed statement Exh.19 closing prosecution side. The A.P.P. Also moved an application Exh.20 under section 494 of Cr.P.C. For withdrawal of the case. Learned trial Judge under the impugned order, dated 28-6-1988 accepted the application Exh.20 and acquitted accused Abdul Wahid (respondent No.1) under section 494 of Cr.P.C. The case against Mahmood already stood abated during pendency of this case. The said order of acquittal has been assailed.
7. Mr. Sharafuddin Ada, learned counsel for the applicant argued that power under section 494, Cr.P.C. Cannot be exercised to throttle the prosecution, and that the learned trial Court should not have allowed withdrawal of the case, when the eye-witnesses against the respondent No.1 were supporting the prosecution in their police statements. It was explained that the prosecution witnesses who were to depose against the respondent No.1 were involved in the murder case of Mahmood and hence they could not appear in the trial Court. The acquittal took place on 28-6- 1988 while the criminal revision application was moved on 3-12-1990. On this point learned,, counsel for the applicant argued that no period was prescribed by law of limitation for moving a criminal revision application. Learned counsel for the applicant cited the cases of (i) Mir Hassan v. Tariq Saeed and 2 others PLD 1977 SC 451, (ii) Muhammad Yaqoob v Faqir Muhammad alias Faqiro and 2 others PLD 1980 Kar 424, (i.e) Iftikhar Ahmad Abdul Majid etc PLD 1980 Lah. 201, (iv) M.H. Abidi v The State Life Insurance Corporation 1990 MLD 563 and (v) Des Raj v. Emperor AIR 1931 Lah. 264.
8. In (i) above, it was held that the Court before whom an application under section 494, Cr.P.C. Is moved has to determine whether the general., executive; discretion given by law to the public prosecutor, has nor been improperly exercised or that it is not an attempt to interfere with the: normal course of justice for reasons not related to the public interest. It was observed that an application for withdrawal of the case is be made, inter alia, on the ground of the undesirability of permitting the prosecution to continue where there is insufficient or meagre evidence to justify a conviction. It was further held that before allowing withdrawal of a criminal case the Court must satisfy itself that there do exist on the record grounds to sustain the reasons advanced by the public prosecutor for his withdrawal from the prosecution. In (ii) above, the Assistant Public Prosecutor moved for withdrawal from prosecution on the ground of witnesses not attending and on the ground of there being no likelihood of the case ending in conviction and practically all eye- witnesses and complainant were examined and only formal and official witnesses were left to be examined. It was held that in such circumstances, the order allowing withdrawal was based on a misconception of the legal position and resulted in failure of justice. In (i.e) above, the view taken was that no limitation was prescribed by law for filing a criminal revision application under section 439, Cr.P.C In the cited case, the Additional Public Prosecutor -as permitted to withdraw from the prosecution on the ground that there was no evidence with the prosecution to establish the charge and the view taken was that the Court was obliged to satisfy itself after consulting the record whether the reasons advanced for withdrawal were correct. (iv) above would not apply in a criminal case because it was on the point of laches as a bar to` exercise of Constitutional jurisdiction. In (v) above, it was held that a criminal revision cannot be rejected on mere ground of delay.
Mr. Zawar Hussain Jafferi, learned AA: G. Opposed the application and argued that the criminal revision application was not filed by the complainant but it was filed by Pahalwan who was a witness and he had no locus standi.
Mr. Siraj Ahmed who as A.P.P. Had moved for withdrawal of the prosecution, was also heard. He argued that from 1984 to 1988 the process was repeatedly issued for the witnesses but they did not attend the Court although bailable warrants were also issued for them. Learned A.P.P. Alleged that the witnesses did not wish the decision on merits as they avenged the murder of Paryo by causing the death of accused Mahmood.
11. Argument by learned AA.-G. That the revision application should have been filed by the complainant and not by a prosecution witness, appears somewhat weighty. This is, however, not an appeal but a revision application. For invoking revisional jurisdiction of a Court even formal application may not be necessary. The Court invested with revisional powers can act suo motu, once it comes to know that a Court subordinate to it has passed an illegal order. Hence the revision application cannot be brushed aside as incompetent if it has not been moved by the complainant.
12. As regards the point of limitation, I cannot take a view different from the one expressed in the case of Des Raj v. Emperor AIR 1934 Lah 264 that a criminal revision cannot be rejected on mere ground of delay. In the present case, the delay in moving the revision application has been explained to be due to the witnesses having been involved in the murder case of Mahmood.
13. It is beyond the competency of an A.P.P. To contend that the prosecution witnesses wanted to avenge the murder by taking the law in their own hands. Such presumption cannot be allowed to be taken. One cannot jump at a conclusion without any basis in such sensitive matters. It would be too much to assume that Mahmood,, was murdered by Ismail, Lal, Pahalwan and Gulab even if F.I.R.
No.103 of 1986 had been lodged against them.
Coming to the facts of the case, I find that withdrawal of the case was allowed without taking all steps to procure witnesses for the prosecution. No doubt, the trial Court had ordered issuance of coercive process for the witnesses but some more time should have been allowed. A.A.P. Mr. Siraj Ahmed has made a statement before me that he was moved by the trial Court to submit withdrawal application. If this was so, then I have no hesitation in condemning such act by the trial Court. In view of the case-law cited at the Bar, I am of the considered view that the trial Court should not have allowed withdrawal of a murder case in the way this has been done.
Consequently, I accept this revision application and set aside the order of withdrawal dated 28-6- 1988 and remand the matter to the trial Court, for proceeding with the sessions case against the respondent No.1, from the stage when the impugned order was passed.