PLJ 2019 Quetta 26 (DB)
Present : JAMAL KHAN MANDOKHAIL AND ZAHEER -UD-DIN KAKAR , JJ.
MOMIN KHAN --Petitioner
versus
SPECIAL JUDGE ANTI -TERRORISM COURT -II, QUETTA and another --Respondents
C.P. No. 961 of 2017, decided on 16.7.2018.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition --Arms Ordinance, 1965,
S. 13(b)(d) --Explosive Substances Act, 1908, Ss. 4 & 5-- Anti Terrorism Act, 1997, S. 7--
Recovery of huge quantity of Arms --Lodging of FIR --Completion of Investigation--Challan w as
submitted --Application for withdrawal of case by special public prosecutor --Dismissed --
Challenge to --We are of opinion that withdrawal of case is based on mala fide on part of Chief
Minister, which is evident of fact that Secretary Home and Tribal Affai rs, Secretary Prosecution
and Chief Secretary, Government of Balochistan, had opposed withdrawal --Moreover, no reason
has been given by Provincial Government for withdrawal of case --Be that as it may, trial Court
had passed a well reasoned order based on c omments/proposal of State functionaries, which do
not call for any interference by this Court --Parties are directed to appear before trial Court who
shall proceed with case in accordance with law and to decide it as early as possible-- Interim
order dated 26.3.2018 passed by this Court is hereby recalled. [P. 30] C & D
Criminal Procedure Code, 1898 (V of 1898) --
----S. 494--Withdrawal of --Consent of Judicial domain--Powers of public prosecutor --Locus
standi --Effect of--Provision of law shows that a move for withdrawal of prosecution under
Section 494, Cr.P.C could be made by Public Prosecutor and he could withdraw such
prosecution with “consent” of trial Court, before pronouncement of a judgment --It further shows
that power of Public Prosecutor to withdraw fr om prosecution of any case is subject to “consent”
of Court --Therefore, it is within judicial domain of trial Court to refuse or accede to withdrawal
of prosecution of a person in any case --Application for withdrawal was filed by learned
Prosecutor, as he alone was competent to do so as provided by Section 494, Cr.P.C.--After
dismissal of that application, learned Prosecutor or Government did not challenge order impugned-- Rather, learned Prosecutor appearing before this Court had defended impugned order
and opposed this petition--Under such circumstances, petitioner/ accused has no locus standi to
challenge order nor can request for withdrawal of case-- Petition in circumstances is incompetent.
[Pp. 29 & 30] A & B
PLD 1991 Lah. 268, PLD 1977 SC 45 & 1992 SCMR 1983, ref .
Mr. Naseebullah Tareen, Advocate of Petitioner.
Mr. Ameer Hamza Mengal, Dy. Prosecutor General for Respondents.
Date of hearing: 30.5.2018.
JUDGMENT
Zaheer -Ud-Din Kakar, J.--Through this petition, the petitioner assails the validity of order
dated 17.08.2017 “the impugned order”, passed by the Special Judge, Anti -Terrorism Court -II,
Quetta “the trial Court”, whereby an application for withdrawal of case FIR No. 10/2016 filed by
the Special Public Prosecutor was dismissed.
2. Precisely stated f acts of the case are that on 21.5.2016 at about 4:00 a.m., the complainant
Shakarullah IP/SHO, Police Station Counter Terrorism Department (CTD), Quetta alongwith
other CTD official under the supervision of SSP CTD, upon receiving spy information,
conducte d raid at the house of petitioner (Momin Khan) situated at Jungle Pir Alizai and
recovered a huge quantity of arms and ammunitions. Consequently, FIR No. 10 of 2016, under
Section 13(b)(d) Arms Ordinance, 1965 read with Sections 4, 5 Explosive Substances A ct, 1908
and Section 7 of Anti -Terrorism Act, 1997 was registered at Police Station CTD Balochistan,
Quetta.
3. After completion of investigation, challan of the case was submitted before the trial Court, charge was framed and the prosecution produced it s three witnesses. Meanwhile, on 06.08.2017,
the Special Public Prosecutor (SPP) filed an application for withdrawal of case, the trial Court after hearing the learned counsel for the parties, dismissed the application vide impugned order,
hence this petit ion.
4. Learned counsel for the petitioner contended that the trial Court while passing the impugned order dated 17.8.2017 failed to appreciate that in the cases/FIRs where the State is complainant, the Chief Minister, being Chief Executive of the province is competent to withdraw the State Case under Section 494, Cr.P.C; that the findings arrived at by the learned trial Court is the result of mis -reading and mis -application of law, as such, the impugned order is liable to be set aside.
5. Learned DPG ap pearing on behalf of the State opposed the petition, defended the impugned
order and contended that the petitioner has no locus standi to file the instant petition.
6. We have heard the learned counsel for the parties and gone through the record, which re flects
that, pursuant to letter No. S.O(Legal -I)l-22/2014/1178- 79 dated 21.06.2017 of Prosecution
Department Balochistan, the SPP filed an application for withdrawal of the case FIR No. 10 of 2016. Here, it is necessary to reproduce Section 494, Cr.P.C, which reads as under:
“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 anyone or more of the offences for which he is tried, and upon such withdrawal:
(a) If it is made before the 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 thi s Code no charge is
required, he shall be acquitted in respect of such offence or offences.
7. Perusal of the above provision of law shows 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 a judgment. It further shows that the power of Public Prosecutor to withdraw from the prosecution of any case is subject to “consent” of the Court. Therefore, i t is within the judicial domain of the trial Court
to refuse or accede to the withdrawal of prosecution of a person in any case. In this regard, reference is made to the case titled The State v. Navid Asif and others (PLD 1991 Lahore 268),
wherein it was h eld that even a written application of the Government seeking withdrawal of the
prosecution is not to be granted by the Court as a 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 ( PLD 1977 SC 451). In the case titled Ch. Muhammad Yaqoob and others v. The State
(1992 SCMR 1983), it was held by the Hon'ble Apex Court that State or Public Prosecutor has
no absolute power to withdraw a criminal case and the co nsent of the Court is required. 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 or is based on mala -fide with
an object to fav our an accused person. It was also held in the case titled Muhammad Saleem v.
Mukhtar Khan and another (1984 PCr.LJ 390 (SCAJ&K), that withdrawal from prosecution,
held an executive and not a judicial act. Court must be satisfied that executive function of Public
Prosecutor should not be improperly exercised or that it should not amount to an attempt of
interfering with course of justice. It was held in the case titled Saad Shibli v. The State and another (PLD 1981 Supreme Court 617) that Government can take a decision on matter and
Public Prosecutor may act on their instructions but Courts are not absolved from applying their own independent minds to facts and circumstances of each case for granting or refusing to give consent. It was further held that the Courts have to ensure that such course being not an attempt to interfere with the normal course of justice for illegitimate purposes or its own functioning being not thereby pre -empted. It was also held in the case titled Federation of Pakistan through
Secretary Ministry of Law, Justice and Parliamentary Affairs, Islamabad v. Zafar Awan, Advocate High Court ( PLD 1992 SC 72) that it is narrated from the Holy Prophet that the
previous nations were destroyed because they had different laws for high- ups and inf luential, but
different laws for the masses.
8. It is important to mention here that the application for withdrawal was filed by the learned
Prosecutor, as he alone was
competent to do so as provided by Section 494, Cr.P.C. After dismissal of that application,
the learned Prosecutor or the Government did not challenge the order impugned. Rather, the
learned Prosecutor appearing before this Court had defended the impugned order and
opposed this petition. Under such circumstances, the petitioner/ acc used has no locus standi
to challenge the order nor can request for withdrawal of the case. The petition in the circumstances is incompetent.
9. Besides, we are of the opinion that withdrawal of case is based on mala fide on the part of
the Chief Minister , which is evident of the fact that the Secretary Home and Tribal Affairs,
the Secretary Prosecution and the Chief Secretary, Government of Balochistan, had opposed
the withdrawal. Moreover, no reason has been given by the Provincial Government for withdra wal of the case. Be that as it may, the trial Court had passed a well reasoned order
based on the comments/proposal of the State functionaries, which do not call for any interference by this Court.
Thus, in view of above, the instant petition is dismissed. The parties are directed to appear before the trial Court who shall proceed with the case in accordance with law and to decide it as early as possible. The interim order dated 26.3.2018 passed by this Court is hereby recalled.
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