IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Crl. Acquittal Appeal No. 15 of 2009.

Present:

                                    Mr. Justice Imam Bux Baloch.

Ghulam Rasool Lashari.                                        ……….…………….Appellant.

Versus

Sher Mohammad & others.                                …….…...…..….Respondents.

Mr. Abdul Rehman Bhutto, Advocate for appellant.

Mr. Nisar Ahmed Soomro, Advocate for respondents No.1 to 5.

                        Mr. Naimatullah Bhurgri, State counsel.

Date of hearing:                08.03.2010.

Date of judgment:                        08.03.2010.

O R D E R

Imam Bux Baloch, J-.       By short order dated 08.03.2010, this appeal was allowed and these are the reasons for the same. This criminal appeal is directed against the order dated 13.07.2009, passed by learned Assistant Sessions Jude, Kashmore, whereby he while granting consent for withdrawal of sessions case No. 05/2007, arisen out of F.I.R No. 121/2004 of P.S Kashmore, has ordered acquittal of accused Sher Mohammad, Banhoon, Abdul Razak, PC Sikander Ali and PC Mahkumuddin, by allowing an application under section 494 Cr.P.C. filed by Deputy District Attorney, Kashmore.

                        Precisely, the facts of prosecution case as narrated in the F.I.R, are that on 25.11.2004, at 1500 hours complainant Ghulam Rasool Lashari lodged an F.I.R with P.S Kashmore. It is pertinent to mention here that the F.I.R was registered on the directions of this Court. It is stated by complainant in the F.I.R that he alongwith his brother Abdul Sattar went to Kashmore town from Guddu, where their cousin, namely, Mir Hazar Lashari joined them. All of them proceeded towards house of Mir Hazar, situated in Eid Gah Muhalla. At about 2.00p.m. when they reached near Exchange a white colour car crossed them and stopped in-front of them and a motorcycle also arrived there, which also stopped in-front of them. From motorcycle PC Sikander Ali of P.S Saddar Jacobabad, and Mahkumuddin WPC Katcho Bindi, both armed with kalashnikoves, while from car Sher Mohammad Lashari, Banhoon Lashari, Abdul Razak Pathan and two unknown persons, all were armed with T.T pistols and all of them by show of weapons forcibly taken Mir Hazar, the cousin of the complainant and boarded him in a car. Sikander Ali and Mahkumuddin disclosed that there is an F.I.R at P.S Sadar, Jacobabad, therefore, they have taken Mir Hazar in connection with that F.I.R.  On the next day complainant went to P.S Saddar, Jacobabad, and enquired about Mir Hazar and PC Sikander Ali, but neither Mir Hazar nor PC Sikander Ali was available. After that complainant went to Mahkumuddin and enquired from him, who informed complainant that dead body of Mir Hazar would be received by you. Then complainant approached higher officers and also field petition in this Court and after obtaining orders from this Court, his F.I.R was lodged.

                        After registration of F.I.R, police investigated the case and disposed of the same; and report under section 173 Cr.P.C. was submitted before learned Civil Judge and Judicial Magistrate-II, Kashmore. The learned Magistrate did not agree with the report submitted by the police and directed police to submit the challan.  On 19.01.2005, challan of the case was filed by the police and as the offences were exclusively triable by Court of sessions, hence the case was sent up to the Court of learned Additional Sessions Judge, Kashmore and by way of transfer it was ultimately received to the Court of Assistant Sessions Judge, Kashmore; where learned Deputy District Attorney, filed an application under section 494 Cr.P.C. for withdrawal of the case and the impugned order was passed.

                        I have heard learned counsel for the parties and perused the material available on record. Learned counsel for appellant contended that in presence of private complainant and abductee and without recording evidence the Public Prosecutor has no authority to withdraw the case. Learned further contended that the order of the learned trial Court is not sustainable in the eyes of law and prays that appeal may be allowed and the case may be remanded to trial Court. Learned counsel has relied upon case State Vs Naveed Asif and others (PLD 1991 Lahore 268), Mir Hassan Vs Tariq Saeed and two others (PLD 1977 Supreme Court 451), and The State Vs Special Judge Central and others (2005 Y.L.R. 1669).

                        On the other hand learned counsel for respondents No.1 to 5, contended that Deputy District Attorney has the power to withdraw case with the consent of the Court.  He further contended that the case was recommended by the investigating agency for its disposal under cancel class, but the learned Magistrate did not agree. He further contended that there is no probability of the private respondents to be convicted, if the case proceeds further.

                        Learned counsel appearing for the State, did not support the impugned order and contended that appeal may be allowed and case may be allowed to proceed according to law.

                        I have considered the submissions advanced at the bar and have gone through the order passed by learned trial Court. learned trial Court without hearing the complainant, without applying its judicious mind has given consent to withdraw the prosecution of the case.

                        In case The State Vs Special Judge Central and others (Supra), it was held that State or public prosecutor has no absolute power to withdraw a criminal case and consent of the Court is required for the same. Court is obliged to apply its mind to the question whether request for withdrawal is bona fide, warranted by the facts of the case and is intended to foster the cause of justice and is not made in bad faith to favour an accused person at the cost of the victims of the criminal offence involved therein.

                        In case The State Vs Navid Asif (Supra), it has been held that even a written application of the Government seeking withdrawal of the prosecution is not to be granted by the Court as matter of course but shall have to be dealt with on the touchstone of the law enunciated by the Supreme Court in the case of Mir Hassan V. Tariq Saeed and two others (PLD 1997 SC 451). That “Section 494 is an enabling provision, and vested in the public prosecutor the initiative and the discretion to apply to the Court for its consent to withdrawal from the prosecution of any person. What the Court has to determine in such a case, for the purpose of giving consent, is whether the general executive discretion given by law to the public prosecutor has not 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. The 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 meager evidence to justify a conviction. In making such an application the 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.

                        The discretionary power having been vested in the public prosecutor by the Statue, the Court acts, so to say, in a supervisory capacity, to see that the power is not abused in any manner exercised arbitrarily and contrary to the public interest so as to amount to an interference with the ordinary course of justice. The Court must, therefore, 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. It is clear that this supervisory function of the Court can be exercised only on a consideration of all the facts and circumstances of the case available to the Court, and not in disregard of any material factor or circumstances having a bearing on the issue. At the same time, it is also clear that in undertaking this exercise the Court cannot embark upon the kind of detailed analysis of the evidence which can appropriately be undertaken only at the conclusion of a judicial trial. Any such attempt would, in our opinion, amount to throttling the prosecution or interfering with the ordinary course of justice.”

                        It is very strange and imaginary that the Deputy District Attorney moved an application under section 494 Cr.P.C. for withdrawal of the case without consent of private complainant. The charge was framed by the trial Court and it was for the trial Court, after adducing evidence to decide the fate of the case. The case pertains to kidnapping of a person by the accused persons. The Deputy District Attorney has no authority under the law to withdraw the case without consent of the complainant and abductee. The State or Public Prosecutor has no power to withdraw criminal case, in which evidence is to be recorded by the trial Court.

                        In view of the above cited authorities, I have come to the conclusion that the learned trial Court has not applied its judicious mind by giving its consent for withdrawal of the case in absence of the private complainant. Consequently, this appeal is allowed. Impugned order dated 13.07.2009, passed by trial Court recording acquittal of accused is set aside; and the case is remanded to learned trial Court with directions to proceed with the same from the same stage when it was on 13.07.2009 and decide it in accordance with law.

Dated:10.03.2010.

                                                                                                            Judge