' MUHAMMAD ROSHAN ESSANI, J.--- By this Criminal Revision Application No,112 of 1999 applicant Maqbool Ahmed Shaikh has sought following relief:- "It is, therefore, prayed that this Honourable Court may be pleased to grant permission to the State to withdraw the Special Case No,44 of 1997, State v. Maqbool Ahmed son of Abdul Rehman Shaikh vide .I.R. No,44 of 1996 under section 13-D, Arms Ordinance Police Station Abad, Sukkur, and or pass any other or further order which this Honourable Court may deem fit and proper under the circumstances of the case."
2. The brief facts of the prosecution case are that on 30-5-1996 A.S.-I. Abdul Aziz of Abad Police Station alongwith his subordinate staff was on Patrolling duty. At about 5 p.m. When the said police party reached at the diversion of Farash village they started checking of vehicles, At about 7-15 p.m. One Pajero Jeep was seen coming from Sukkur side. The said Pajero was stopped. It was driven by the applicant. On the search of the said Pajero one unlicensed kilashnikove with magazine and 10 bullets were recovered, therefore, in presence of Mastiffs i,e, police Constables Muhammad Ibrahim and Haji Khan under a Mashirnama. The applicant was arrested and he was brought at Police Station Abad where FIR bearing Crime No,44 of 1996 was lodged against him by A.S.-I. Abdul Aziz on behalf of State After usual investigation applicant was sent up for trial 3 During the pendency of proceedings a notification was issued by the Government of, Sindh, Home Department, Karachi. The said notification is reproduced hereinbelow in extenso for ready reference:- "Mon. 4th October, 1999, 18-44 ' No,REG (H.D.)/8-41/386/97 Government of Sindh, Home Department.
Karachi dated the 29th April, 1998.
' To ' The District Magistrate, Sukkur.
' Sub: Withdrawal of case hearing F.I.R.No,44 of 1996 Police Station, Abad registered under section 13-D, Arms Ordinance against accused Maqbool Ahmed Shaikh.
' I am directed to refer to the captioned subject.
(2) Whereas. District Magistrate and Special Public Prosecutor. Sukkur vide their Letters NosiB/422 and No, Nil, dated 10-3-1998 and 12-9-1997 respectively, has recommended the subject case for withdrawal against accused Maqbool Ahmed Shaikh.
(3) And whereas, Law Department has endorsed the said recommendations.
(4) And whereas,. Competent Authority has agreed/approved for recommendation of District Magistrate and Special Public Prosecutor for withdrawal of case.
(5) Now, therefore, the Government of Sindh has been pleased to decide that the subject case may be withdrawn against accused Maqbool Ahmed Shaikh. The Special Public Prosecutor may, therefore, be advised to move an application under section 494, Cr.P.C. For withdrawal of said case against accused Maqbool Ahmed Shaikh only.
' Action taken in the matter may be intimated at the earliest.
(Sd.) Syed Abid Hussain. Shah Registrar, Special Courts Suppression of Terrorist Activities, Sindh, Home Department, Karachi.
' Copy forwarded to Special Public Prosecutor, Suppression of Terrorist Activities Court, Sukkur, for information and necessary action.
(Sd.) Syed Abid Hussain Shah Registrar, Special Courts Suppression of Terrorist Activities, Sindh, Home Department, Karachi."
4. The Special Public Prosecutor, Special Court (S,T.A.), Sukkur moved an application. Under section 494, Cr.P.C. For withdrawal of the prosecution of the applicant. The contents of the said application under section 494, Cr.P.C. Are reproduced hereinbelow for the sake of convenience:-- "Application under section 494, Cr.P.C.
' It is prayed on behalf of the State that this Honourable Court may be pleased to withdraw the prosecution of the abovementioned case on consideration of following grounds:-- ' Grounds
(1) That the Registrar (S.T.A.) Court Home Department, Government of Sindh vide its Letter No,REG(HD)/5-41/398/97, dated 30th April, 1998 has advised to District Magistrate to withdraw the abovementioned case.
(2) That the District Magistrate has pleased to advise the Special Public Prosecutor (S.T.A.) Court, Sukkur vide Letter No,700, dated 5-5-1998 to file application before Honourable Court for withdrawal of abovementioned case (in view of letter by Registrar (S.T.A.), Courts.
(3) That there is no probability of the accused being convicted as the prosecution is not interested in proceedings of the case.
(4) That it will be futile to lingeron the matter.
(5) That it will be in the interest of justice to allow this application.
' Sukkur, (Sd.) Muhammad Ahsan Khan Durrani, ' dated 28-8-1999. Special Public Prosecutor, Special Court (S.T.A.), Sukkur
5. The learned trial Judge dismissed the above application by impugned order, dated 21-9-1999, which is impugned herein. The trial Court placed reliance on the case of Saad Shibli v. The State PLD 1982 SC 27, State v. Puttan alias Sibte Hassan and 23 others 1980 PCr.LJ 1034.
6. I have heard Mr. Muhammad Ashraf Kazi the learned counsel for the applicant and Syed Jalil Ahmed Hashmi, the learned Assistant Advocate-General, Sindh on behalf of the State. The latter stated that in the light of the order passed by the Law Secretary and the application moved by the Public Prosecutor before the irial Court and keeping in view the facts and circumstances of the case, any appropriate order may be passed. I have also perused the material placed on record.
7. The perusal of the record showed that two points which weighed with the learned trial Court for rejection of application under section 494, Cr.P.C. Were the absence of the applicant and non- recording of evidence respectively.
8. It will be pertinent to reproduce hereinunder in toto the contents of the affidavit of applicant filed in support of the revision application for ready reference:-- "I, Maqbool Ahmed Shaikh son of Abdul Rehman Shaikh, Muslim, adult, residing at Karachi, do hereby solemnly affirm and state on oath as under--
(1) That I am applicant in the abovementioned case hence wellconversent with the facts of the case. The affidavit has been drafted under my instruction.
(2) That the facts mentioned in the revision application are true and correct, for the sake of brevity.
I seek the permission of this Honourable Court to treat the same as part of this affidavit.
(3) That I and the P.P.P. Ex-Defence Minister belong to Shikarpur, in the 1993 year election had contested M.N.A. Election against Mr. Aftab Shahban Mirani. Lost election against him. Since we both belong to two different factions of political parties, the P.P.P. Government created a reign of terror against me, even a cot was not provided to me, in jail, the Sub-Jailar secretly provided me cot, he was suspended by the Government.
(4) That on 30-5-1996 at 6-30 p.m. While I was going outside the Court premises, four to five vehicles with police personnels came in the premises of the Honourable High Court, Sukkur, informed the applicant that he is under arrest, on the direction of Prime Minister and the Chief Minister. They refused to see the general bail order. Took me to unknown place and foisted and booked me in the tailored made recovery of arms case.
(5) I say on oath that I belong to respectable family. I was not in possession of any arms at the time of arrest, nor have any arms been secured from my possession.
(6) That I say on oath that I was arrested on the day of incident from the premises of the Honourable Court, Sukkur, due to political rivalry and enmity of the then P.P.P. Government.
(7) That if the application under section 494, Cr.P.C. Is not allowed my political career shall be ruined and it would have adverse effect on my children and family members.
(8) That it is, therefore, requested that the accompanying application be granted in the interest of justice.
(9) That what is stated above is true and correct to the best of my knowledge and belief."
9. The learned counsel for the applicant in support of his plea has also referred the bail grant order of the Division Bench of this Court in Criminal Bail Application No,1248 of 1996 (Maqbool Ahmed Shaikh v. The State). The relevant portion from the bail order relied upon by the learned counsel are also reproduced hereinbelow:- "Learned counsel for the applicant has further argued that the applicant/accused was arrested from the compound of Sukkur Bench of this Court and not from the place as stated in the F .1 .R. And Mashirnama and in support of the said fact has filed affidavits of Messrs Ghulam Qadir, Mushtaq Mehar, Muhammad Khan Durrani and Jai Jai Veshno, Advocates contradicting the facts about the place of arrest and time of arrest.
' The next contention of the learned counsel for the State is that this Court cannot review the earlier order passed by this Court in Criminal Bail No,864 of 1996 has also no merit. First of all this is a fresh bail application moved on the ground that this Court had in the earlier bail application not considered the affidavits of the learned Advocates, wherein it was stated that the applicant/accused was arrested by the police from the compound of Sukkur Bench of this Court and not from the place shown in the F.I.R. And Mashirnama. This ground being a new ground which was not considered in the earlier bail application, the present bail application would be competent and there would be no question of reviewing the earlier order passed by this Court."
10. It will be also pertinent to reproduce hereinunder section 494, Cr. P. C . : "Section 494. Effect of withdrawal from prosecution.--- Any Public Prosecutor ... May with the consent of the Court, ... And in other cases 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."
11. The perusal of above provision of law showed that a- move for withdrawal of prosecution under section 494, Cr.P.C. Could be made by the Public Prosecutor and he could withdraw such prosecution with the "consent" of the trial Court before the pronouncement of judgment. It further showed that no embargo was put on the powers of Public Prosecutor to withdraw from the prosecution of any case. However, the withdrawal could be made only with the "consent" of the Court. The consent of Court implies judicial discretion of the Court. It is within the judicial domain of the trial Court to refuse or accede to the withdrawal' of prosecution of a person in any case.
12. In the case of. Mir Hassan v. Tariq Saeed PLD 1977 SC 451 it was observed by the Honourable Supreme Court that for the purpose of exercising discretion for the withdrawal of case, it is not necessary that the trial Court must first record all the available evidence, as the discretion cannot simply be exercised on the basis of the available material, even though evidence may not have been judicially recorded by the time the application for withdrawal is made. Once the investigation of a case is completed the Court as well as the parties become aware of the evidence that would be forthcoming at the trial, and therefore, it is not correct to say that for the purpose of giving consent under this section, the Court must wait until it has recorded the evidence.
13. In the aforesaid 'case the position of Public Prosecutor in Pakistan was also thrashed- out. And it was observed that the Public' Prosecutor has to act and follow the .Directives of the Government or District Magistrate and impliedly his position is of a subordinate in that heriarchy.
14. Now I will advert to the case-law relied upon by the learned trial Court.
15. The case of Saad Shibli v. The State reported in PLD 1982 SC at p.27, but it is reported in PLD 1981 SC at p.617. It appears that this is a clerical/typographical mistake. The appeal in the case of Saad Shibli and appeal in case of State v. Puttan and others reported in 1980 PCr.LJ 1034 were disposed of by a single judgment.
16. There is no cavil with the prosecution that while exercising the powers under section 494, Cr.P.C.
It is the duty of the Court to apply it's judicial mind before giving consent and it is the duty of the Court to ensure that normal course of justice is not deflected for illegal reasons and that there should be no indication of throttling the prosecution.
17. It is generally noticed that sometime placitums of the reported cases do not reflect the true and correct gist of decision given by Court in such reported case, therefore, it is necessary to put a glance over the facts and observations made in the contest of the reported cases as very essential.
18. In this regard it may be stated that in the case of Saad Shibli (ibid) it was observed at page 623 in paragraph 15 as under:-- "This power of withdrawal from prosecution with the consent of the Court is slightly different from the power to enter Nolle Prosequi as earlier existing in section 333 and now in section 265-L of the Criminal Procedure Code and as available in United Kingdom. The Court has no control whatsoever over its exercise. Hence the grounds need not be objective, may not be disclosed at all and the Court has no discretion to refuse entry of Nolle Prosequi. A long line of decisions on the subcontinent took the view that the power under section 494, Cr.P.C. Was conferred on the Public Prosecutor and was exercisable by him in his discretion, totally uncontrolled and unguided by the District Magistrate or the Government and that any visible intervention in its exercise by these authorities amounted to surrender of powers by the Public Prosecutor and improper pressure by Government on Court. This view was last expressed forcefully in this country in Crown v.. Bahu PLD 1956 Kan.
385.. The, same objection was raised but not pressed and the power was conceded to the Government in India before the Supreme Court in Shankanarayain Nair v. Bal Krishan AIR 1972 SC
496. In Mir Hassan's. Case this Court laid down the law that "in making such an application that Public Prosecutor may legitimately be instructed by the Government which, under the legal system obtaining in Pakistan, is responsible for the prosecution of all cognizable offences."
19. Thus, in the light of Mir Hassan's case (ibid) the Public Prosecutor has to act and follow the directives of the Government or District Magistrate and impliedly his position was that of a subordinate in that heirarchy.
20. The brief facts of the case of accused Saad Shibli were that he caused gun shot injuries to some boys. A case under sections 302 and 307, P.P.C. And another case under section 13-D of the Arms Ordinance were registered against him and he was sent up to stand trial. During committal proceedings Public Prosecutor moved application under section 494, Cr.P.C. Before the committal Court and both cases were withdrawn. The private party i,e, aggrieved persons (relations of deceased) challenged the said order in revision before the High Court and it was allowed as still many eyewitnesses in the case remained to be examined and ocular account was corroborated by medical evidence.
21. The brief facts of the case of Puttan and others, however, were that one person was killed and injuries were received by the seven persons. They were sent to stand trial under sections 302, 307, 147, 149 and 109 read with section 34, P.P.C. And also under section 13-D, Arms Ordinance. The F.I.R.
Was lodged by a Head Constable of police station. The Public Prosecutor moved for the withdrawal of the prosecution of the case under section 494, Cr.P.C. Before the trial Court but his request was turned down. The matter was taken in revision before the High Court. The revision petition was also dismissed, following the observations of Honourable Supreme Court in case of Mir Hassan (ibid).
22. In both the aforesaid matters Honourable Supreme Court granted leave and matters were disposed of by a single order as stated hereinabove.
23. With regard to the relevance and the weight to be given to consideration of "public policy" "administration of justice" or "interest of States" it was observed in this reported cases that in deciding the question of consent, the decisions have not been uniform.
' In paragraph No,20 thereof it was observed as under--- "(20) It followed, therefore, that no disclosure of satisfactory objective grounds, relatable to public policy, or public peace, and administration of justice, an application under section 494, Cr.P.C. For seeking Court's permission to withdraw from the prosecution can be filed. The Court's duty is to ensure that such a course is not an attempt to interfere with the -normal course of justice for illegitimate reasons or purposes' AIR 1957 SC 389 or that Courts own functioning is not thereby pre- empted' PLD 1977 SC 451."
24. The Honourable Supreme Court declined to interfere with the order of High Court in case of Saad Shibli and it was observed at paragraph 21 that the case against Saad Shibli related to an individual. It has originated on a purely personal note, an alleged apparent to the dignity of his sister, following by firing resulting in the death of one and injury to another. There were witnesses available, and the Court had examined four of them. The appeal was dismissed.
25. So far as the case State v. Puttan and others under sections 302, 307, 147, 149 and 109 read with section 34, P.P.C. And section 13-D, Arms Ordinance was concerned, the appeal was allowed.
Relevant observations at page 626, of paragraph 22 of the said report are reproduced hereinbelow:-- "(22)The other case had an altogether different context and dimention country vide elections to the National Assembly seats were taking place on the 7th March, 1977. Election did take place on that date. As noted in Begum Nusrat Bhutto v. Chief of Army Staff etc. PLD 1977 SC 657. People all over Pakistan protested that there had been massive rigging by the Government functionaries'. Such complaints gave rise at certain spots to contemporaneous mass violance throughout the length and breadth of the country. These case forms a part of the pattern. The dissatisfaction so generated led to more violence and ultimately the very Government considered responsible for it was ousted and substituted by Martial Law Regime. All political activity, and subsequently, all political parties, were banned. In this contest, after some initial vascillation, a policy decision was taken, of withdrawing from prosecution of all such cases of violence which had taken place on 7-3- 1977 or near about and were concerned with agitational political activity concerning the fair conduct of general elections. It was a policy decision in so far as it involved a principle uniformly applied to all sections without reference of discrimination. It was a matter of public concerned because it affected not an individual, not a small group of individuals, nor was it a matter localized territorially but affected the entire length and breadth of the country. The object in withdrawing from the prosecution was not to prejudge the issue but to end perpetuation of acrimony and hatred over a matter which had in the entirely changed contest that followed, became so to say, a dead horse. In this case, therefore, the dictates of public policy, as well as requirements of administration of justice fully justified the withdrawal of the case. In the circumstances the Government's appeal is accepted and permission to withdraw from the prosecution of this case is hereby granted."
26. The F.I.R. In present case was lodged by Assistant Sub-Inspector of Police. The Mashirs of recovery are two Police Constables. The alleged incident occurred at the diversion of village Farash.
The checking of vehicles was stated from 5 p.m. No attempt was made to procure any private person from the village to be present for witnessing such searches. The political enmity was not disputed. So also the arrest of the applicant from Court premises was not denied. On the point of arrest, four Advocates sworn affidavits before this Court, which are referred in bail order of applicant which has been reproduced hereinabove.
27. So for absence of applicant is concerned it is in consequential. The applicant was not declared proclaimed offender. Mere absence is not sufficient.
' In the case of Nazim Khan and 2 others v. The State 1984 SCM R 1092 it was held that abscondence is equally consistent with innocence and guilt of a person. Different persons are differently constituted and some accused persons though innocent, deliberately abscond rather than face the ordeal of a criminal trial. There is plethora of authorities of apex Court on this aspect of the matter. In this context reliance can also be placed on the case of Ameenullah v. The State reported in PLD 1976 SC 629, Abdul Rauf v. The Crown 1971 SCM R 256, Muhammad Aslam and another v. The State 1969 PCr.LJ 885.
28. In the case of Iqbal Hussain Shah v. The State PLJ 1979 Cr. 274 it was observed by a Bench of Lahore High Court that public consideration may compel the Government on grounds of public policy to direct the Public Prosecutor to withdraw a case and have the accused acquitted or discharged, as the case may be, but the bona fides of such public policy must be laid before the Court so that the Court is prima facie satisfied that the public interest, as against personal objective, was involved.
29. Consequently, the impugned order is set aside and present revision application is allowed. The required permission to withdraw from the prosecution of this case is hereby granted.
' As a consequence the applicant is discharged in Special Case No,44 of 1997 titled State v.
Maqbool Ahmed. Shaikh wherein he was sent up after investigation in F.I.R. No,44 of 1996 under section 13-D of Arms Ordinance.