' SARMAD JALAL OSMANY, J.---Brief facts of the matter per F.I.R. No.14 of 2002 dated 22-10-2002 lodged with Police Station, F.I.A./CBC-I, Karachi, are that the Manager, Allied Bank Limited, Muhammad Ali Housing Society Branch, had sent a letter to the Collector of Customs (Preventive)
Customs House, Karachi, asking him to verify whether he had signed an enclosed letter authorizing the main Accused Muhammad Zakir Bukhari (alias Shahid Yousat) to deposit a pay order in the amount of Rs.69,43,501 in the name of Collector of Customs in his own account with the Bank. The Collector of Customs found that his signatures on the letter were forged and hence he ordered the Investigation and Prosecution Branch of the Collectorate to initiate an enquiry. Thereafter the staff of the Branch contacted the Manager of the Bank who informed him that the main accused was the person who had deposited the pay order along with the letter with Bank and was still available in the premises upon which he was arrested and brought to the Customs House for preliminary enquiry. He disclosed that his real name is Muhammad Zakir Bukhari son of Muhammad Ahmed Bukhari and he is a member of a gang headed by the applicant/accused who is involved in bank fraud and cheating. He produced four different identity cards issued in different names but having his own photograph and further disclosed that he had been using the same for opening bank accounts in different banks. Further, that the applicant/accused used to provide him pay orders, drafts and cheques which he deposited in the aforementioned bank accounts. According to the main accused, the applicant/accused was about to board a flight to Dubai upon which the latter was arrested and the F.I.R. Registered by the complainant who belonged to the Investigation and Prosecution Branch of the Customs House, Karachi.
2. Thereafter an investigation was launched which revealed that the pay order in question was issued by Citibank in favour of Collector of Customs and also another pay order in favour of Excise and Taxation Officer to the account of Messrs Pakistan Telecommunication Mobilink Limited. The same were provided to the Clearing Agents Messrs Aidyvee for release of the former's consignments from the Airport and accordingly were taken by accused Imran Khan, an employee of the Clearing Agent for the purpose of clearance etc. However, instead of depositing the pay orders with the Authorities this accused retained the same with him and at the same time managed to get the consignment cleared from Customs and Excise Department through forged and bogus stamps of NBP Airport Branch Karachi, which were provided by co-accused Irfan Jabbar. Accordingly Irfan Jabbar was also arrested and at his pointation another member of the gang viz. Syed Sarfraz Zaidi was arrested who admitted that he received the pay order in the presence of absconding accused Abdul Jameel from Wan Jabbar who also confirmed that he and accused Abdul Jameel had arranged the fake stamps of NBP Airport Branch Karachi. During the course of investigation the bank record of ABL, ABN Amro Bank, MCB, Citibank, Metropolitan Bank were seized, as well as the Passport, Cheque Books NICs etc. Of the main accused. Thereafter, a final charge-sheet was filed before the learned trial Court wherein the names of the applicant/accused. Syed Sarfraz Hussain Zaidi and Abdul Jameel were mentioned in Column No.2 as not being sent up for trial whereas Muhammad Zakir Bukhari, Imran Khan, Irfan Jabbar and Muhammad Shahid were mentioned in Column No.3 as having been so sent up.
3. An application under section 249-A, Cr.P.C. Was filed on behalf of the applicant/accused seeking his acquittal in the matter which was dismissed by the learned trial Court on the ground that at least three of the official witnesses namely Ahmed Raza Khawar, Deedar Hussain Magsi and Aijaz Ali Khoso have fully implicated the applicant/accused in their 161, Cr . P. C . Statements. Further, that the role of the applicant/accused has been cited in the F.I.R. And that the report of the Handwriting Expert is yet to be considered and that the police statement of the main accused is admissible under Article 16 of the Qanun-e-Shahadat Order. Hence this application.
4. On the basis of foregoing record, Mr. Rasheed A. Rizvi, learned counsel for the applicant/accused has firstly submitted that not an iota of evidence is available with the prosecution against his client except the police statement of main accused to the effect that the pay orders in question had been supplied to him by applicant/accused. Similarly insofar as the police statements of the official witnesses are concerned, they have only stated that in their presence the main accused has implicated the applicant/accused. Again per learned counsel at least 11 officers of various banks have been examined under section 161, Cr.P.C. Whose statements are on the record but none of them have said anything against the applicant/ accused. Per learned counsel, such police statement/confession of the main accused cannot be used for the purpose of convicting the applicant /accused as per the prohibition contained in Article 38 of the Qanun-e-Shahadat Order, 1984. At the most, it could be used as circumstantial evidence against the applicant/accused under Article 43, if at all the main accused gave a judicial confession which was subsequently proved at the trial which would require corroboration. According to learned counsel, no corroboratory pieces of evidence are available with the prosecution in this respect. Consequently, as this is a case of no evidence at all as regards the applicant/accused hence further proceedings in the matter against him would indeed be an abuse of the process of Court and hence deserve to be quashed. For this proposition, he has relied upon Maqbool Hussain v. The State PLD 1960 SC 382; Joygun Bibi v. The State PLD 1960 SC 313; Moula Bux v. The State 1977 SCMR 292; The State v. Asfand Yar Wali 1982 SCMR 321; Khani Zaman v. The State 1983 SCMR 573 and Shabiul Hassan v. The State PLD 1991 SC 898.
5. As regards the learned trial Court's observation in the impugned order that the main accused is a competent witness as an accomplice against the applicant/accused under section 16 of the Qanun-e-Shahadat Order, learned counsel has submitted that again conviction cannot be based upon the uncorroborated testimony of a such an accomplice. Hence as a matter of prudence, the Courts in this country have always sought corroborative material in such circumstances which is entirely missing in the Prosecution case. For this proposition, learned counsel has relied upon Abdul Ghafoor v. The State PLD 1984 Lahore 441; Muhammad Umar v. The State 1981 SCMR 479 and Zulfiqar Ali Bhutto v. The State PLD 1979 SC 53. Per learned counsel the entire case of the prosecution has been demolished by the fact that the applicant/accused has not been sent up for trial and it is clearly stated in the charge-sheet that nothing incriminating has been found against the applicant/accused as well as co-accused Syed Sarfraz Hussain Zaidi and Abdul Jameel during the investigation. For all the foregoing facts and reasons learned counsel has prayed that the application be allowed and the proceedings before the learned trial Court against the applicant/accused be quashed. In support of these submissions, learned counsel has relied upon Mairaj Khan v. Gul Ahmed 2000 SCMR 122; Muhammad Shafique v. Abdul Hayee 1987 SCMR 1371; State v. Gulzar Muhammad 1998 SCMR 873 and The State v. Asif Ali Zardari 1994 SCMR 798.
6. Mr. S. Mehmood Alam Rizvi, learned Standing Counsel has not been able to controvert the submissions of Mr. Rasheed A. Rizvi. He has merely submitted that the record speaks for itself and except for the police statement of the main accused and the three witnesses from the department, no other evidence is available against the applicant/accused.
7. On the other hand, Mr. Faisal Siddiqui, learned counsel for the main accused has submitted that the latter's case would be prejudiced if this application is allowed and the applicant/accused acquitted since then he cannot be called upon to join the trial if on the basis of some evidence being recorded, this was found to be necessary. Per learned counsel, once the applicant/accused were acquitted in a criminal matter, there is a bar on a fresh trial on the same charge per section .403 of the Cr.P.C. He has hence suggested that alternatively the applicant/accused Could be discharged under section 249, Cr.P.C. For this proposition, he has relied upon S. Masoodul Hassan Naqvi v. The State 1986 PCr.LJ 1272.
8. In rebuttal, Mr. Rasheed A. Rizvi has submitted that in the given facts and circumstances of the case, the only possible piece of evidence which could be anticipated during the trial would be in the mode of the section 342, Cr.P.C. Statement of the main accused. Per learned counsel, even if such statement implicated the main accused it cannot be made the basis of convicting the applicant/accused per Ghulam Muhammad v. The State PLD 1961 Lahore 146 since such statement could only be used for or against the maker thereof viz. Main accused. As regards the bar contained in section 403, Cr.P.C. Learned counsel has submitted that per settled law it can only come into operation once an accused in a criminal matter has been tried and acquitted viz. He could not be tried on the same charge again. In the present case, as even the charge has not been framed therefore, acquittal at this stage would not attract the provisions of section 403, Cr.P.C. For this proposition he has cited The State v. Muhammad Shafi PLD 1964 (W.P.) Lahore 1. In these circumstances, per learned counsel, the applicant/accused could always be joined in the case if on the basis of some evidence being recorded or for that matter a reinvestigation of the case, he was found to be involved. In this regard, he has relied upon Hasil Balouch v. D.I.-G. Police Crimes, Karachi 1983 PCr.LJ 2357; Aftab Ahmed v. Hassan Arshad PLD 1987 SC 30; Atta Muhammad v. I.-G.
Police West Pakistan PLD 1965 (W.P.) Lahore 734 and Muhammad Akbar v. The State 1972 SCMR 335.
9. We have heard both the learned counsel as well as learned Standing Counsel and our conclusions are as follows:--
10. It would be seen that at this stage, the only piece of evidence available with the prosecution insofar as the applicant/ accused is concerned is the police statement/confession of the main accused to the effect that the former gave him the pay orders in question for the purpose of deposit etc. Consequently, even if such confession is proved before the learned trial Court, it would have to be corroborated in order to be used against the applicant/ accused. This has been the consistent view of the superior Courts i.e. That the evidence of an accomplice cannot be accepted at face value for convicting a co-accused unless it is corroborated in material particulars by other pieces of reliable and cogent evidence. In this regard reference can be made to the wording of Article 43(b) of the Qanun-e-Shahadat Order which provides that where more persons than one are being tried jointly for the same offence and a confession made by one of such persons is proved then the Court may take into consideration such confession as circumstantial evidence against such other person. In my opinion, this is a salutary provision of law since an accomplice being a participant in the crime, his testimony suffers from infirmity. The leading case in this regard is that of Zulfigar Ali Bhutto v. The State whereas other cases are Joygun Bibi v. The State, Maqbool Ahmed v. The State and Maula Bux v. The State (supra) as well as Bhuboni v. The King PLD 1949 PC 90; Muhammad Sabir v. The State 1989 PCr.LJ 2047 and Mazharul Haq v. The State 1999 PCr.LJ 1910.
11. As regards other pieces of evidence available against the applicant/accused, it would also be seen that he was arrested upon the information of the main accused. However, in my opinion, considered on its own, this hardly furnishes any evidence as to the involvement of the latter with the former/crime in question and hence the applicant/accused cannot be convicted on this piece of corroboratory evidence alone. Hence, further proceedings against him would be an exercise in futility also for the reason that after having investigated the matter the police authorities have shown him in Column No.2 in the challan. In my opinion therefore, this is a fit case for quashment of the proceedings against the applicant/accused. In this respect, it would be seen that per well- settled law, quashment of proceedings in a criminal trial against an accused can be directed by this Court under section 561-A, Cr.P.C. Where it is established that due to some legal defect in the proceedings the accused could not be convicted at the trial or it is a case of no evidence at all in which circumstances no useful purpose would be served to keep the matter lingering on before the learned trial Court as this would amount to abuse of its process. In this regard reference can be made to Mairaj Khan v. Gul Ahmed 2000 SCMR 122; Mian Munir Ahmed v. The State 1985 SCMR 257 and the State v. -Gulzar Ahmed 1998 SCMR 823.
12. As to Mr. Faisal Siddiqu's contention that if the applicant/accused were acquitted at this stage, he could not be joined at the trial in case some evidence comes on the record pointing towards his involvement, it may be seen that the bar contained in section 403, Cr.P.C. As to a fresh trial of an accused under the same charge would only come into operation if indeed there has been a trial. In the present case, not even the charge has been framed therefore, there cannot be any question of a trial. Hence, the applicant/accused can always be joined at a subsequent stage of the proceedings if some evidence comes on the record which would point to his involvement in the crime. In this regard, reference can be made to The State v. Muhammad Shafi and Aftab Ahmed v.
Hassan Arshad; Atta Muhammad v. I.G. Police West Pakistan and Muhammad Akbar v. The State (supra).
13. For all the foregoing reasons this application is allowed. The proceedings against the applicant/accused pending before the learned trial Court are quashed.