MUSHTAK ALI KAZI, J.-This revision application is directed against an order passed by Civil Judge 8t F. C. M., Kotri allowing an application presented by the Assistant Public Prosecutor under section 494, Cr. P. C. For withdrawal of the case and allowing this application and discharging the accused accordingly.
2. The facts of the case in brief are that applicant Dhani Parto an Assistant Sub-Inspector of Police had arrested Manther and Batiadur Machis from Onarpur forest air they were required in a case which had beau registered under section 379, P. P. C. It was alleged by the applicant that the brothers of Murid Macchi attacked the police party in order to rescue respondent Manthar and in the firing the petitioner received gunshot injuries on hiss stomach and buttocks. From the other side one person was killed as a result of firing by the police. Counter casts were sent up, one at the in8tance of A. S. I. Dhani Parto the present petitioner for offence under section 307. P. P. C. Arid the other at else instance of respondent Manthar for the murder committed in the course of the firing.
Both the cases were pending hi the Court of Civil Judge & F. C. M. Kotri who was the committing Magistrate for that illaqa. An application was then filed by A. P. P., Dadu dated 30-8-I975 that he was withdrawing the prosecution of the accused under directions of the Chier Minister of Sind communicated to him through District Magistrate, Dadu. No other reasons were given for the withdrawal. The learned Civil Judge & F. C. M., granted this application without coming to an independent finding merely on the ground that under the circumstances the prosecution could not be brought to a successful end.
3. It has beer argued by Mr. Muhammad A.I Sheikh on behalf of petitioner A. S. I. Police Dhani Parto, that since the petitioner is being prosecuted for murder, which was the result of the encounter between the police and the dacoits, it would have been desirable for the committing magistrate to commit both the casts to the Court of Session for arriving at a just decision with regard to the incident from which those cases arose. That by withdrawing the case registered by tie police against the party of dacoits the case of the petitioner would be greatly prejudiced as his version of the incident would not be presented before the Court of Session. Mr. Muhammad A.I Sheikh his also pointed out that the order of discharge of the accused tinder section 494, Cr. P. C is not in accordance with law as the learned Magistrate had to arrive at an independent decision whether the case was fit for withdrawal and had not to be guided by the orders of the Chief Minister or the Home Secretary and the District Magistrate.
4. Section 494 no doubt gives a discretion to the Court to grant or withhold its consent to the proposed withdrawal. This discretion like all other cases of exercise of discretion of the Court must not be exercised arbitrarily but it should be based on sound legal principle;. In tile applica--petition for withdrawal filed by the A. P. P. There could be stated Coat the grounds for the withdrawal and the Assistant Public Prosecutor should not have attempted to influence the judgment of the Court in this regard by stating in his application that he has been Instructed by the District Magistrate or by the Government to make that application. Withdrawal of the prosecution has to be allowed on merits and not because some person or authority has desired such withdrawal ; nor is it sufficient ground for the Court to allow withdrawal merely because the Public Prosecutor has ,t been instructed to make the application by the District Magistrate. The Court has to pass a judicial order stating briefly the facts. The grounds to withdrawal and the reasons for allowing the withdrawal in order to show that before granting its consent the matter has been judicially considered. In the case of Mir Hassan v. Tariq Saeed arid others P L D1977SC451 it has been clearly stated that the Court has to determine in such a case, for the purpose of giving consent, whether or not the power under section 494 has been im--properly exercised in an attempt to interfere with the normal course of justice. The application for withdrawal can be made on grounds which may include the ground of public policy, interest of public peace or insuffi--ciency of evidence. It is for the Court to see that the power of withdrawal is not abused in any manner and that sufficient grounds exist to sustain the reasons advanced by the Public Prosecutor for the withdrawal. Thus it was for the Public Prosecutor to say why he asked for withdrawal of the case whether on the grounds of public policy or falsity of the prosecution evidence or for any other sufficient reason. Merely stating that the Chief Minister desires withdrawal or that the District Magistrate hits instructed, ',him to do so would not be sufficient grounds and would oat the other hand suggest that an attempt is being made to over- awe or influence the Court by communicating such facts. Since these were two counter cases in respect of one and the same incident it should have been left to the Court of Session to consider the cases on merits and to arrive at s proper conclusion! After weighing the versions presented on both sides. An order allowing withdrawal, not being based on any reasons for allowing the same, would appear to be improper and would show that possibly it was a case of Interference with the normal course of justice by the authorities concerned; as otherwise the proper course would have been for the Assistant Public Prosecutor to state the grounds on which the withdrawal of the case by the prosecution was sought It could easily have been stated that any fresh evidence had come to the knowledge of the Government that the allegations were false or that the case was being supported by false evidence or any such credible information had become available with the Government.
5. In the result the order of withdrawal and discharge of the accused under section 494, Cr. P. C.
Passed by the Civil Judge & F. C. M. Kotri dated 30-8-1975 is set aside and the revision application is allowed. The case may now be sent before the Sessions Court to be tried along with the connected murder case,namely. Crime No. 18/74 against Dhani Parto and others.