JAVED IQBAL, J.- This petition for leave to appeal is directed against the judgment dated 5.11.2002 whereby criminal proceedings Initiated against respondents vide F.I.R, bearing No. 3/55/INT/CE/97-98, dated 17.6.1998 were quashed.
2. Precisely stated the facts of the case as enumerated in the F.I.R, are to the effect that "an information was received by the Collector, Central Excise, Karachi through the Superintendent, Central Excise, Landhi Circle, Karachi that M/s. Pakland Cement Limited, Karachi are involved in the massive evasion of Central Excise duty by way of clandestine removal of Clinker produced in the factory. Accordingly, under the instructions from Collector, Central Excise, Karachi a letter was issued to the management of M/s. Pakland Cement Ltd., Karachi vide C. No.1/10- Int/CE/Inquiry/97/38, dated 25.4.1998 that a team of Iqrs. Intelligence, Central Excise, Karachi would conduct the weighment/measurement of Clinker available in the factory premises on 27.4.1998.
The management of M/s. Pakland Cement Ltd., Karachi was requested to depute an authorized representative/attorney to co-ordinate the staff of Hqrs. Intelligence, Central Excise, Karachi, in the process of weighment/measurement of Clinker available on the record. On 27.4.1998 the staff of Hqrs. Intelligence, Central Excise, Karachi Superintendent, Central Excise, Landhi Circle, Karachi, Central Excise staff posted at the unit alongwith a qualified surveyor i.e. M/s. Make Builders Ltd., Karachi visited the said unit and weighment/measurement of Clinker (OPC) was conducted by the surveyor in the presence of Hqrs. Intelligence, Central Excise. Karachi, Superintendent, Central Excise, Landhi Circle, Karachi, Mr. Hasan Shaharyar, General Manager and Akram, Attorney of the said unit. The Clinker of OPC lying in an open space at Clinker yard as pointed out by the management of the factory was physically measured/weighed which was found to be only 2795 M/Tons. Whereas in the record of central excise (RG-2) the quantity of (OPC) Clinker was shown 72387 M/Tons, when the existing quantity of OPC Clinker was tallied with the quantity mentioned in the RG-2 Register. It revealed that a quantity of 69592 M/T ons (OPC) Clinker was short physically.
Simultaneously weighment/measurement of stock of OPC Cement was also conducted and it was revealed that a quantity of 1500 M/Tons was in excess in the silos but the same was not entered in the Central Excise record i.e. RG-1 Register. The Central Excise records (RG-1 and RG-2 Register) were resumed under proper resumption memo, prepared on the spot. Mr. Abdullah, Director, Hassan Shaharyar, Manager, Akram, Attorney of the factory and other associates in crime have conspired together in the commission of offence and thus violated the provisions and Sections 3, 4, 9 and 9(b)(d) of Central Excises Act, 1944 and with Rules 9, 52, 52-A, 53, 53-A, 53-B and 226 of Central Excise Rules, 1944 punishable under Section 9 of Central Excises Act, 1944 and rule 210 of Central Excise Rules, 1944. The investigation pertaining to evasion of central excise duty is underway and hectic efforts are continued to apprehend the accused persons". After completion of the investigation, ad-interim charge-sheet was filed in the Court of learned Special Judge Customs & Taxation for further proceedings under Sections 3,4,9 and 9(b)(d) of Central Excise Act, 1944 for the alleged fraudulent evasion of excise duty amounting to Rs. 12.80,49,280/-.
3. Heard Mr Akhlaq Ahmed Siddiqui, learned A O R. On behalf of the NAB (petitioner) and Mr. Azizullah Sheikh, Sr. A.S.C, alongwith Mr. Muhammad Farrogh Naseem, learned A.S.C, for respondents Nos. 1-4 at length. We have perused the entire record as well as the judgment impugned to appreciate the contentions as agitated on behalf of the parties. There is no denying the fact that an application under Section 265-K, Cr.P.C., was moved on behalf of respondents which was pending before the learned Special Judge Customs and Taxation when the learned High Court was approached under Section 561-A, Cr.P.C., for quashment of F.I.R, and criminal proceedings presently pending in the Accountability Court, which has been accepted vide judgment impugned, It is also an admitted feature of the case that application filed under Section 265- K, Cr.P.C could not be decided for a couple of months which was treated as "dismissed" by the learned High Court which in our considered opinion is not correct because merely due to afflux of time, application pending adjudication could not be equated with that of dismissal.
4. It transpired from scrutiny of the record that the said application could not be disposed of as the learned Trial Court though it appropriate to decide the application for cancellation of bail at first instance moved against the respondents. The factum of delay alone would not empower the learned High Court to accept the application under Section 561-A, Cr.P.C., at premature stage during the pendency of an application moved under Section 265-K, Cr.P.C., which was pending for decision and the case was at its initial stage. Let us make it clear here at this juncture that "it is well-established by now that the inherent jurisdiction of this Court as conferred upon it under Section 561-A, Cr.P.C. should not normally be invoked, where another remedy is available. The jurisdiction so conferred and the powers so vested ought to be exercised only to prevent abuse of process of Court and in order to promote the interest of justice. Another important aspect which must not escape unnoticed is that the High Court may quash the criminal proceedings initiated on baseless and frivolous complaint which does not contain any definite accusation or where apparently no offence is made out, but where on face of complaint a prima facie case is made out then the question of quashment does not arise when the evidence is yet to be recorded, as it would amount to stifling of criminal proceedings, It would also not be desirable to quash the proceedings at initial stage when a prima facie case is made out for the reasons that in such an eventuality the matter would fall within the discretional ambit of Trial Court to thrash out the evidence to see and decide whether the accusation is having any substance or otherwise. For the quashment of criminal proceedings the High Court must be able to come to a clear conclusion that either the accused is innocent or that the conviction is quite impossible. The power as conferred upon this Court under Section 561-A, Cr.P.C, can certainly not be so utilized as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute and the High Court, as has repeatedly been pointed out in various cases, should be extremely reluctant to interfere in a case where competent Court of law has just taken the cognizance of the matter, It is well-settled by now that Section 561-A, Cr.P.C, confers inherent powers on the High Court to act in aid of advancement of interest of justice and to eliminate an action resulting in abuse of the process of the Court, It is permissible to exercise inherent powers on the satisfaction that a criminal proceeding or an action initiated in criminal proceedings, if allowed, would not advance the cause of justice and ultimately would tantamount to abuse of the process of the Court, In absence of such satisfaction, the High Court was not advised to act merely on conjectures, surmises, artificial suggestions or speculations (1986 P.Cr.L.J. 2230). It is to be noted that lapse of long period since initiation of case cannot be considered as ground for quashment (PLD 1967 SC 317). Tahir Hussain Mehmoodi v. State (PLD 1995 Quetta 76). It would be too premature to form or express any opinion for the determination of the quilt or innocence of the petitioner which will initially depend on the totality of the facts and circumstances which would reveal during the trial. There is no denial of fact that such a stage has not yet been reached Gianchand v. State (1968 SCM R 380).
5. The Court while discussing the provisions as contained in Section 561-A, Cr.P.C., held that "a plain reading of Section 561-A, Cr.P.C, shows that nothing in the Criminal Procedure Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under the Criminal Procedure Code, or to prevent abuse of process of any Court or otherwise to secure the ends of justice, In the instant case neither any order was made by any Court nor any process was issued by any Court. So, the question of making such orders as may be necessary to give effect to any order under the Criminal Procedure Code or to prevent abuse of process of any Court does not arise. We are afraid that the High Court under Section 561-A, Cr.P.C, could not quash F.I.R, on the ground of mala fide or on the ground that F.I.R, discloses civil liability. Since we have held that the High Court had no power to quash the F.I.R, under Section 561-A. Cr.P.C we need not examine correctness of the reasons given by it for quashing F.I.R. Ahmed Saeed v. State (1996 SCM R 186).
6. In the case in hand neither any order was passed nor any concrete step was taken by the learned Trial Court when the entire proceedings were quashed which depicts some, what haste specially when an application under Section 265-K, Cr.P.C., was pending, It was also observed by this Court while discussing the scope of Section 561-A, Cr.P.C., that "case involved fraud of Crores of rupees of public money and the prosecution should have been given full opportunity to produce its evidence before any conclusion could have been recorded. Case was not a fit one in which High Court should have invoked jurisdiction under S. 561-A, Cr.P.C, directly even before the prosecution produced its evidence. Impugned judgment was consequently set aside and the case was remanded to the Trial Court with the direction to proceed in the matter from the stage at which it had stopped." Noorul Islam v. The State (1986 SCM R 1836), State through Director-General, Pakistan Coast Guards, Turbat v. Sabro and another (1992 P.Cr.L.J. 1795), Zubair alias Nana v. The State (1992 P.Cr.L.J. 2127), The State v. Muhammad Nawaz (2000 SCMR 634).
7. In the light of what has been discussed hereinabove, the petition is converted into appeal and allowed. The judgment impugned is set aside. The application under Section 265-K, Cr.P.C, preferred on behalf of the respondents shall be treated as pending and be decided within two months by the learned Trial Court in accordance with law and on its own merits. All the contentions agitate before this Court can be raised before the learned Trial Court. The observations made hereinabove are tentative in nature and shall not affect the merits of the case.