1. MUKHTAR AHMED JUNEJO, J.- - Criminal Revision Applications Nos.71, 72, 73 and 74 of 1991 have been moved by M. Osman, challenging acquittal of Tajamul Hussain under section 494, Cr.P.C. In each of the four cases pending against him in the Special Court (Offences in Banks) at Karachi, under an order dated 18-7-1991.
2. Complaint against Tajamul Hussain, who is respondent No.2 in all the four criminal revision applications, was lodged by the Government of Pakistan Finance Divisions through a Section Officer. After due investigation by FIA, four separate challans were presented against the respondent NoZin the Special Court created by the Offences in Respect of Banks (Special Courts)
3. Ordinance, 1984 (hereafter to be mentioned as the Ordinance), for his prosecution for the offences punishable under sections 409, 420, 468 and 471 of P.P.C.
4. Responden t No.2 was facing trial in the four criminal cases challancd against him by FIA in said Court for the said offences, when on 14-7-1991 an Assistant Director (Legal) of FIA, declared as Public Prosecutor by the Government of Sindh, moved an application in each of the four cases, under section 494 of Cr.P.C. For withdrawal of the case pending against the respondent No.2. All the four applications came to be accepted by the Special Court (Offences in Banks), Karachi under the impugned order dated 18-7-1991. Hence these revision applications which are proposed to be disposed of under this order.
5. Mr. Abrar Hassan, learned counsel for the applicant in each of the revision applications argued that while allowing withdrawal of the cases against respondent No.2, the trial Court had not given cogent reasons. In. Support learndd counsel cited the cases of Mir Hassan v. Tariq Saeed and 2 others PLD 1977 SC 451, Saad Shibli v. State and another PLD 1981 SC 617, and State v. National Fire Insurance Co. And others PLD 1958 Kar. 418, and Muhammad Akram and another v. Second Sindh Labour Court and another 11997 SCMR 31. Learned counsel for the applicant, next argued that besides the cases challaned by FIA, there was a direct complaint filed by the applicant against the respondent No.2 and that the direct complaint was to proceed first and that before disposal of the complaint case withdrawal of the FIA cases could not have been allowed. It was also argued that there was no provision in the Ordinance for withdrawal of a case in respect of any offence mentioned in the Ordinance. Lastly, learned counsel referred to Article 203 of the Constitution of Pakistan and vehemently argued that this Court should not abdicate its power of supervising and controlling the subordinate Courts including the Special Court (Offences in Banks).
6. The Offences in Respect of Banks (Special Courts) Ordinance, 1984 does not lay down the procedure to be followed while trying the offences mentioned in the said Ordinance. Hence a special Court trying an offence mentioned in the Ordinance has to follow the provisions contained by the Code of Criminal Procedure.
7. There can be no cavil with the contention raised by the learned counsel that this Court has to supervise and control all the Courts subordinate to it by virtue of Article 203 of the Constitution of Pakistan and there is no question of abdicating such powers by this Court. In the case of Jodhey and ot ' hers v. State (AIR 1952 Allahabad 788), cited by the learned counsel, it was held that the purpose of the Constitution-makers while enacting Article 227 of the Constitution of India (which corresponds to Article 203 of the Constitution of Pakistan) was to make the High Court responsible for the entire administration of justice and to vest in the High Court an unlimited reserve of judicial power which could, be brought into play at any time that the High.
8. Court considered it necessary to draw upon the same. In the case of Shripatrao Dajisahcb Chatge and another v. The State of Maharashtra and another (AIR'
9. 1977 Bombay 384) cited by the learned counsel, it was held that Article 227 of the Constitution of India is not merely procedural but confers a substantive right of action on a litigant to move the High Court.
10. Learned counsel for the applicant could not cite any provision of law by which trial of direct complaint was to precede trial of a case challaned by Police/FIA. Case of Federation of Pakistan v.
11. Syed Nazir Ahmad Shah (PLD 1966 SC 78) cited by the learned counsel does not cover the point at issue. Consequently even if a direct complaint was pending against the respondent No.2, that could not have created any hurdle in way of the trial Court in allowing withdrawal of an FIA case against the respondent No.2.
12. In the case of Muhammad Akram and another v. IInd Sindh Labour Court and another (1987 SCM R 31) the point at issue was whether a person other than the Registrar of Trade Unions can file complaint before a Labour Court. No such point has arisen in the instant case. Learned trial Court under the impugned order has observed that Muhammad Usman is neither witness in any of the four cases challaned by FIA against the respondent No.2 nor there was any reference about Mohammad Usman in the police papers filed with the challans. As regards the present criminal revision applications are concerned they have been moved under section 439, Cr.P.C. While proceeding under section 439 of Cr.P.C.
13. Read with section 435 of Cr.P.C. This Court can call for find examine the record of any proceeding before any inferior criminal Court situated within the local limits or jurisdiction of this Court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, Zntence or order recorded or passed and as to the regularity of any proceedings of such inferior Court.
14. Wording of sections 435 and 439 of Cr.P.C. Shows that this Court can exercise the powers contained in sections 435 and 139 of Cr.P.C., without any application having been moved in this respect. Consequently even if applicant Mohammad Usman is not a party or witness in. He concerned cases, this would not affect maintainability of the present revision applications.
15. Section 494 of Cr.P.C. Empowers any Public Prosecutor to withdraw from the prosecution of any person in respect of any one or more of the Afences for which he is tried but such withdrawal cannot be without consent of 1c trial Court and it is to take place before the judgment is pronounced. In the zase of Saad Shibli v. State and another (PLD 1981 SC 617), it was held that section 494, Cr.P.C. Prescribes no guidelines and indicates no controlling features, except such power having to be exercised before pronouncement of judgment and subject to consent of Court.
16. It was also held that the Court was not absolved from applying its own mind to the facts of case for granting or refusing consent to withdraw from prosecution but the Court was under duty to ensure that withdrawal of the prosecution was not an attempt to interfere with normal course of justice for illegitimate reasons or purpose or its own functioning being not preempted. In the case of Mir Hassan v. Tariq Saeed and 2 others (PLD 1977 SC 451), it was held that an order of acquittal or discharge passed under section 494 of Cr.P.C. Is a judicial order and is liable to revision, if the discretion vesting in the Court to give consent has been improperly or arbitrarily exercised. It was also held that the discretion to allow withdrawal of a case under section 494, Cr.P.C. Can be exercised on the basis of available material and that in such a case the Court has to determine whether the discretion given by law to the Public exercised or at it is not an attempt to Prosecutor has not been improperly interfere with the normal course of justice for reasons not related to the public interest. It was also held that an application for withdrawal can be made on many possible grounds which may include the inexpediency of prosecution on grounds of public policy or in the interest of public peace or the undesirability of permitting the prosecution to continue where there is insufficient or mearge evidence to justify a conviction. In the case of State v. National Fire Insurance Co. And others (PLD 1958 Kar. 418) a Division Bench of this Court disapproved the act of the District Magistrate in sending a letter to the trial Court that he had allowed withdrawal of the case.
17. In the instant case, learned trial Court while allowing withdrawal of the cases against the respondent No. 2 appears to have taken care of the provisions of relevant law and has passed a very exhaustive order. Learned counsel for the applicant has noit been able to make out a case for interference with the impugned order which does not appear to have violated any of the principles laid down in the cited cases. Consequently these revision applications are dismissed in limine. terms.
18. These are reasons for our short order dated 6-2-199.2,in :identical N.H.Q./M-1579/K