' Learned A.A.-G. Submits that since the instant Criminal Miscellaneous carries a short point he has no objection if the same is considered as an admitted case and decided today.
2. Criminal Miscellaneous be considered as an admitted case.
3. A case F.I.R. No,55 of 1995 under sections 302, 324 and 109/34, P.P.C. Police Station Rukanpur, District Rahimyar Khan was registered against the petitioners. The challan was submitted in the Court of Mr. Muhammad Siddique Garwah, learned Additional Sessions Judge, Rahimyar Khan.
4. The narration of facts in the F.I.R. Is that it was registered by one Abdul Majeed son of Allah Bakhsh on 4-3-1995 with the allegation that the petitioners and their son Irshad Ahmad attacked on deceased Allah Rakha with bricks and Soti and injured him. Initially, the aforesaid F.I.R. Was registered under section 324/34, P.P.C. Allah Rakha died on 8-3-1995, whereupon section 302, P.P.C.
Was added. The instant case was investigated by the different Police Officers. Initially, the Police Officers challaned the petitioners but in the later investigation, the petitioners were declared innocent by the investigations conducted by Dr. Muhammad Amin, A.S.P. And Aftab Ahmad Cheema, Additional S.P., Rahimyar Khan with a direction to the Investigating Officer to trace out the real culprits of the case. The case was placed for discharge of the accused before the Ilaqa Magistrate who forwarded the challan to the Court of learned Sessions Judge where the trial was being conducted. The learned District Magistrate, Rahimyar Khan vide Letter No,JB-10026, dated 13- 6-1996 addressed to the District Attorney, Rahimyar Khan to arrange the withdrawal of the case from the competent Court through its permission. Meanwhile the petitioner filed a Criminal Miscellaneous No,509/Q of 1997 on 16-7-1997 before this Court which was disposed of with the direction that it would be better for them to make an application under section 265-K, Cr.P.C.
Before the learned trial Court.
5. The petitioners filed an application under section 265-K, Cr.P.C. Before the learned Additional Sessions Judge, on 25-9-1997 on the basis that the Investigating Agency had placed a discharged report before the Ilaqa Magistrate who did not agree to it and forwarded the same to the 'Sessions Court on the ground that the case was already pending before the learned Sessions Judge. The learned District Magistrate submitted an application for withdrawal of the case but the learned Additional Sessions Judge, Rahimyar Khan turned down his request and the petition under section 561-A, Cr.P.C. Was filed before this Court for quashment of the F.I.R. The petitioner was directed in this petition by this Court to move an application under section 265-K, Cr.P.C. Before the learned Sessions Judge. The learned Sessions Judge vide order, dated 8-5-1999 held that the prosecution for the offences punishable with Ta'zir if relatable to the Haq-ul-Abad cannot be withdrawn and the Federal Shariat Court has declared section 494, Cr.P.C. Repugnant to the Injunctions of Islam.
Therefore, the learned District Magistrate had no jurisdiction to withdraw the prosecution and that the petitioners accused were challaned by the police and the case was fixed before the learned trail Court on 27-8-1996 for delivering copies of documents under section 265-K, Cr.P.C. The police submitted discharge report on 10-12-1996. The opinion of the police is not binding on the Court. The police has no jurisdiction to declare anybody guilty or innocent. It is the function of the learned trial Court to decide the innocence of the accused after recording the prosecution evidence.
6. I have heard the learned counsel for the petitioner as well as the learned A.A.-G.
7. The petitioners, Ghulam Nabi and Mst. Sharifan are present in Court.
' Ghulam Nabi seems to be of the age of 75/80 years and similar is the age of Mst. Sharifan. So far as section 494, Cr.P.C. Is concerned it is reproduced as below:-- "494-- Effect of withdrawal from prosecution.--- Any Public Prosecutor may with the consent of the Court, 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."
8. I am not convinced by the finding of the learned trial Court that section 494, Cr.P.C. Is redundant.
Section 494, Cr.P.C. Is applicable to the present case and any Public Prosecutor with the consent of the Court can withdraw from the prosecution of any person either generally or in respect of anyone or more of the offences for which he is tried and upon such withdrawal and, if it is made before a charge has been framed2 the accused shall be discharged in respect of such offence or offences or 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. The learned District Magistrate on the basis of discharge report, dated 10-12-1996 directed the District Attorney to withdraw the instant case from prosecution.
9. So far as the investigation is concerned, although the opinion of the police is not binding upon the Court but still the investigation has to end either to declare the person innocent or guilty. If the police comes to the conclusion that a person should be discharged then he will place the same before the Ilaqa Magistrate for discharge of the case who may agree or may not agree under section 173, Cr.P.C. But if an application under section 265-K, Cr.P.C. Is submitted to the Court of competent jurisdiction then, under section 265-C, Cr.P.C., the trial before the Sessions Court, which is to be conducted by the Public Prosecutor, shall be conducted by the Public Prosecutor and if an application is moved under section 265-K, Cr.P.C. The Court after hearing the Public Prosecutor and the accused and for reasons to be recorded if considers that there is no probability of the accused being convicted of any offence, may acquit the accused. This exercise of power under section 265- K, Cr.P.C. Is' conditional and it is upto the Court to consider that there was no probability of the accused being convicted, may acquit the accused.
10. In this case even in the F.I.R. The motive is that a civil suit was pending between the accused petitioners and the successor-in-interest of the deceased in respect of land belonging to one of the accused Mst. Sharifan. The Investigating Agency has found them innocent and has forwarded the report to the S.H.O. Concerned to find out the real accused. The District Magistrate on the basis of the discharge report has under section 494, Cr.P.C. Instructed the Public Prosecutor to withdraw the case. I am not in consonance with the finding of the learned trial Court that the learned District Magistrate has no authority to direct the Public Prosecutor to withdraw the case. The withdrawal of cases is always with the consent of the Court. In an application filed under section 265-K, Cr.P.C.
The Court is bound to see whether there is any probability of the accused being convicted and if the question is yes then the learned trial Court can proceed with the case but there is no probability of conviction then the Court may acquit the accused. In the present case the learned District Magistrate who is a competent Authority under section 494, Cr.P.C. Is recommending to the Public Prosecutor to withdraw the case from the Court of learned Sessions Judge and the discharge report has also been framed by the Investigating Agency regarding the innocence of the accused petitioners then was there any probability of conviction of the accused petitioners through trial? Or was it an exercise in futility? These two aspects are very much material to the case which were to be considered by the learned Sessions Judge rather warranting the authority of the learned District Magistrate and the Investigating Agencies and the attraction of section 494, Cr.P.C.
11. Keeping in view all the above facts I hold that the order of the learned Sessions Judge is an abuse of process of law and, therefore, quash the proceedings and set aside the order, dated 8-5- 1999 in the aforesaid F.I.R. No,55 of 1995, dated 4-3-1995, Police Station Rukanpur, District Rahimyar Khan registered under sections 302, 324 and 109/34, P.P.C.