"Tender of pardon" and "withdrawal from prosecution"---Distinction---Line causing difference between two provisions, is that withdrawal under S.494, Cr.P.C. earns acquittal /discharge while S.337, Cr.P.C. turns status of one into 'witness of prosecution' under a condition of his making a full and true disclosure of whole of the circumstances within his knowledge having nexus to the offence---acquittal or discharge , if require to be challenged can be challenged through appeal or revision as the case may be however, pardon tendered under S.337 or 338, Cr.P.C. does not bar trial of such person on failure of fulfilling the condition, as is evident from S.339, Cr.P.C.(Ss. 337, 338, 339 & 494)---- 2016 PLD 153 KARACHI-HIGH-COURT-SINDH
Discharge and acquittal -Distinction-discharge of accused any of kind cannot be equated with acquittal of accused, as there is a marked difference between the two 2006 CLC 489 LAHORE-HIGH-COURT-LAHORE
[Section 494, Cr.P.C.]
Withdrawal an executive and not a judicial act, like the tender of pardon under Section 337. (PC) AIR 1938 P.C. 266 Faqir Singh v. Emp. AIR 1945 Nag. 72 Ram Saran v. Emp.
Public Prosecutor's discretion subject to the consent of the Court alone is necessary to put an end to a criminal case. However, it is proper that he should consult the District Magistrate before exercising the discretion. AIR 1939 Mad. 190
For withdrawal from prosecution public prosecutor must show reasonable grounds and should not act on the instructions or orders of superior authorities, alone. 1996 SCMR 1342, Akhtar Mahmood, Advocate.
State or Public Prosecutor has no absolute power to withdraw a criminal case as the consent of the Court is required. The Court should apply its mind to see whether the 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 with the object to favour an accused person at the cost of the victims of the offence. 1992 SCMR 1983, Ch. Muhammad Yaqub etc.
Withdrawal of a case from Sessions Court. Where trial Court withheld its consent to the withdrawal of the case High Court allowed withdrawal in revision and acquitted the accused. PLJ 1977 Kar. 166. Tariq Saeed etc. Also see PLD 1977 SC 451.
Complainant's Counsel has no locus standi to object to the withdrawal of prosecution when the case is started on public report. 21 Cr.LJ 641 Gopi Bari.
Private complaint. In a private complaint conducted by a private Counsel, the Court inspector cannot suddenly withdraw the prosecution. The withdrawal, held illegal and acquittal set aside. 46 All. 88 (90) Ram Govind v. Lallu.
Withdrawal of complaint. Where version in the police case and the complaint case is the same, complaint can be withdrawn for in such a situation separate trial may not be necessary. (SC) NLR 1985 Cr. 1. Raja Khushbakht-ur-Rehman etc.
Complaint for offence u/s. 302, sent upto Sessions Court cannot be withdrawn by the complainant. Complainant can only withdraw a complaint u/s. 248, Cr.P.C. with the permission of the Magistrate. Case remanded to Sessions Court, PLJ 1989 Cr.C. (Lah.) 226. Nazar Muhammad v. Muhammad Aslam etc.
Reason of public policy, however, learned and high sounding it may appear, is an improper reason for withdrawal of any case. Also the phrase "in the interest of justice" is equally high sounding and equally meaningless so far as withdrawal of the case is concerned. AIR 1943 Sindh 109 Emp. v. Sitaldas; AIR 1943 Sindh 161 Emp. v. Milanmal. PLJ 1978 Cr.C. (Kar.) 162 Dhani Parto v. Manthar PLD 19789 Kar. 371.
Application not based on ground of public policy, public peace or interest but merely to throttle prosecution. Held, trial Court rightly refused consent. 1980 Cr.LJ 1034. State v. Pattan etc.
Court not bound to give reasons for withdrawal and consent and the High Court has no power to interfere. 33 Cr.LJ 337 Lakshmi v. Muhammad.
Withdrawal of case ordered without giving reasons and application of mind, is without jurisdiction. NLR 1983 Cr. 392. Ramzan Ali, v. D.M. Sargodha etc.
No reason given for withdrawal of case. Order set aside, by the High Court, consent should be free and independent and the Magistrate should not subordinate his authority to that of the District Magistrate or Government. NLR 1983 Cr. 26. Abdul Hamid Babar.
Order u/s. 494, Cr.P.C. not giving reason for consent to withdrawal of case u/s. 302, PPC. Order se aside, 1979 P.Cr.LJ 644 Iqbal Hussain Shah.
Consent to withdrawal a judicial order, and is liable to revision by the High Court when discretion improperly or arbitrarily exercised by the Court. (SC) PLD 1977 SC 451. Mir Hassan v. Tariq Saeed.
Consent a judicial order and reason to be given. Consent to withdrawal of a case is a judicial order and the Court, in the interest of justice should give reasons for its consent so that the High Court, can judge that the discretion has been rightly exercised. AIR 1940 Sindh 233 Fakir Chand v. Murad Umar. AIR 1943 Sindh 161 Emp v. Milanmal.
Withdrawal consent by Court mechanical invalid. Consent withdrawal by Supreme Court. Government District Magistrate take decision for withdrawal and Public Prosecutor may act on their instructions but the Court is to censure that the normal course of justice is not interfered with for illegal reasons. PLJ 1982 SC 27 Saad Shibli.
Consent a Judicial Act. The giving of Consent by the Court below is a Judicial Act, and it is open to High Court sitting in Revision under Section 439, Cr.P.C. to set aside an order which followed on the giving of such consent on the view that it was improperly given. AIR 1948 Lah. 74 Ranjah v. Emp. 49 PLR 305 = PLD 1959 Peshawar 186 Awaz Gul v. Habib Khan.
Consent to withdrawal can be given without recording entire evidence, discretion can be exercised on the material available on the record. PLD 1977 SC 451. Mir Hassan v. Tariq Saeed.
Matter to be considered for giving Consent are whether, the discretion given to the public prosecutor has been properly exercised or it is not a attempt to interfere with the normal course of justice. (DB) PLD 1977 SC 451. Mir Hassan v. Tariq Saeed etc.
No guideline or controlling feature prescribed for public prosecutor to withdraw the cases except that the Court should apply its mind while agreeing to do so. PLD 1981 SC 617. Saad Shibli.
Court to see record to satisfy itself whether reasons advanced by Public Prosecutor are sustainable. Retrial ordered. PLD 1980 Lah. 201. Iftikhar Ahmad v. Abdul Majid.
Appreciation of evidence cannot be undertaken to give Consent by the Court for the withdrawal of the case. It can only be done after the conclusion of the case. Otherwise it amounts to throttling the prosecution. PLD 1977 SC 451. Mir Hassan v. Tariq Saeed etc.
Magistrate not applying his mind to the facts of the case, consigning proceeding to record and acquitting accused. Order illegal and set aside. PLD 1976 Lah. 1593. Mst. Bagh Bhari.
Withdrawal order passed on misconception by trial Magistrate. Order set aside. PLD 1980 Kar. 424. Muhammad Yaqub v. Faqir Muhammad.
Without Court's consent withdrawal by Public Prosecutor is of no legal effect. (DB) PLD 1954 Lah. 710 Zahid Hussain v. Crown.
District Magistrate is not a proper forum for the purpose of Section 494, Cr. P.C. Only trial Court can exercise jurisdiction in the matter. 1976 P.Cr.LJ 1422 Muhammad Siddiq v. Muhammad Afzal etc.
Only trial Court to be competent to permit withdrawal of case considering all the aspects. District Magistrate or any other authority is not competent to direct withdrawal of the case. 1979 P.Cr.LJ Note 62. Muhammad Anwar v. Ghulam Muhammad.
Improper Consent. Where the Special Magistrate did not apply his own independent mind to consent for withdrawal and repeated the wishes of the Government the consent was considered bad in law. (DB) PLD 1956 Kar. 385 Crown v. Babu PLD 1959 Pesh. 186 = PLD 1966 Kar. 331.
Government's instructions not sufficient reasons to induce consent of Magistrate. (DB) PLD 1958 Kar. 418 State v. National Fire Insurance Co..
Withdrawal on the direction of Chief Minister. No executive authority is empowered to withdraw a criminal case from a Court. When a District Magistrate permitted withdrawal of a case on the direction of the Chief Minister, the order was set aside by the High Court. PLJ 1977 Lah. 51. Nisar Ahmed. PLJ 1978 Cr.C. (Kar.) 162 Dhani Parto.
Withdrawal Order, revision from which amounted to acquittal does not require to move the District Magistrate before filing revision petition as it was an acquittal without trial on merit. (PLD 1973 Kar. 265 Syed Parial Shah ref.) PLD 1980 Lah. 201 Iftikhar Ahmed v. Abdul Majid.
Prosecution cannot be withdrawn in respect of an offence punishable with had at any stage even by the Government and also in case of Qisas except by the heirs of the deceased. Withdrawal is authorised in offences punishable by ta'zir in Public interest by the State. PLD 1991 FSC 236. H.W. Khairi v. Pakistan.
Convict can withdraw appeal at any time. High Court is to decide such a case on merits on reference u/s 374, Cr.P.C. (DB) NLR 1989 Cr. 480. Noor-ul-Haq.