' M. BILAL KHAN, J.---Anis Ahmad, the petitioner by filing this revision petition under section 439/435, Cr.P.C. Read with section 561-A, Cr.P.C., has called in question the order, dated 6-3-2004 passed by the learned Special Judge Central, Lahore, whereby his application under section 265-K, Cr.P.C.
Was dismissed.
2. The petitioner along with six others, namely, Muhammad Iqbal, Zubair Babar, Muhammad Zubair (whose original names are Latif Ahmad, Shabaz Ahmad and Ghulam Abbas, respectively), Malik Bashir Ahmad, Shani and Nasir Raza is facing trial before the learned Special Judge Central Lahore in case F.I.R. No,239 of 2003, dated 27-5-2003, registered at Police Station F.I.A. Passport Circle, Lahore for offences under sections 17, 1.8 and 22 of the Emigration Ordinance, 1979 read with section 6 of the Passports Act, 1974 andsections 3/4 of the Prevention and Control of Human Trafficking Ordinance, 2002.
3. Briefly stated the facts of the prosecution case are that; Muhammad Iqbal, Zubair Babar and Muhammad Zubair presented their passports at the Immigration Counter, Lahore Airport before the F.I.A. Authorities for clearance; that said documents were found to be suspicious; on inquiry they disclosed their original names as Latif Ahmad, Shabaz Ahmad and Ghulam Abbas, respectively; during the course of interrogation, they further stated that they had paid Rs,12,00,000, Rs,13,00,000 and Rs,15,00,000 respectively, to Malik Bashir-ud-Din, Travel Agent for sending them to Canada for employment, who had provided them the fictitious passports and documents with air tickets and his employee Anees Ahmad, the petitioner, took them to the Lahore Airport on a vehicle a read coloured Pick-up) from the house of Malik-Bashir ud Din.
4. The petitioner's plea for his acquittal under section 265-K, Cr.P.C. Was turned down by the learned Special Judge Central, Lahore vide order, dated 6-3-2004. Hence, this petition.
5. Mr. Ahmad Awais, the learned counsel for the petitioner in support of this petition has argued that even if the contents of the F.I.R. Are taken to be true, no offence is spelt out against the petitioner, that even otherwise there is no material available with the prosecution, saddling the petitioner with any criminal liability; that the prosecution's own witnesses, namely, Abbas and Latif had made statements under section 164, Cr.P.C. Before a Special Judicial Magistrate, wherein they had disowned their statements allegedly made by them under section 161, Cr.P.C. He finally reiterated his stance that a perusal of the material collected by the investigating agency reveals that necessary ingredients of none of the offences charged with are present and the petitioner as such has not committed any offence. In support of his contentions, he placed reliance on the cases, Naroo v. The State (1986 PCr.LJ 174) and Faqir Ullah v. Khalil-uz-Zaman and others (1999 SCM R 2203).
6. On the other hand, Mr. Tariq Shamim, the learned Standing Counsel for Federal Government vehemently opposed the petitioner's plea for acquittal. He argued that the petitioner is named in the F.I.R. With specific role of facilitating the offence as contained in section 17(2)(b) of the Emigration Ordinance, 1979; that as many as 22 witnesses have been mentioned in the calendar of witnesses and that Abbas and Latif P.Ws. Had fully implicated the petitioner in their statements under section 161, Cr.P.C.; that the so-called statements of the said witnesses under section 164, Cr.P.C. Before the Special Judicial Magistrate are neither here nor there, inasmuch as neither the learnedSpecial Judicial Magistrate had any jurisdiction to record their statements nor the accused person named in the F.I.R. Had been summoned by the said Magistrate while recording their statements; that in the bail application of the co-accused Malik Bashir-ud-Din (Criminal. Miscel- laneous No,3510/B of 2003) Mr. Justice Tassaduq Hussain Jallani (as his lordship then was) had made an observation regarding the worth of the said statements under section 164, Cr.P.C. And had held that prima facie the said statements had doubtful credibility; that the petitioner is a hardened criminal, inasmuch as he had been deported from Canada on a similar allegation and F.I.R. No,34 of 2004, under sections 17,, 18 and 22 of the Emigration Ordinance, 1979 had been registered against him at Police Station F.I.A. Lahore. He finally argued that trial had already commenced and acquitting the petitioner at this premature stage would amount to stifling the prosecution and depriving it, of its right to prove the case against the petitioner. He placed reliance on the' cases, Sheikh Mahmood Saeed and others v. Amir. Nawaz Khan (1996 SCM R 839), Sheikh Muhammad Yamin v.The State (1973 SCM R 622) and Mst. Saleem Bibi and 3 others v. Fazal Hussain (1976 PCr.LJ 555).
7. I have considered the arguments of the learned counsel for the both the sides at considerable length. Insofar as the statements of Abbas and Latif P.Ws. Are concerned, they had fully implicated the present petitioner in their statements under section 161, Cr.P.C. However, surprisingly they took a totally divergent stand in their statements proclaimedly recorded by a Special Judicial Magistrate, which had been recorded at a belated stage. This anomalous situation had been taken note of by my brother Tassaduq Hussain Jallani, J. (as his lordship then'was), who was seized of Criminal Miscellaneous No, 3510/B of 2003, which was a post-arrest bail application of Malik Bashir-ud-Din co-accused. His lordship had inter alia observed that "the statements got recorded under section 164, Cr.P.C. By those persons after having been released on bail have a prima facie doubtful credibility firstly because they are belated and secondly they have taken a totally divergent stand and had given no explanation as to why in their earlier statements under section 161, Cr.P.C. They had specifically named the petitioner".
The case'of Naroo (supra) relied upon by the learned counsel for the petitioner was a criminal appeal, where a learned Division Bench of the Sindh High Court had held that the confessional statement of an accused to a Police Officer was not admissible in evidence under section 25 of the Evidence Act. The other case Faqir Ullah (supra) relied upon by the learned counsel was a review petition before the Hon'ble apex Court, where amongst other things it was held that the implications. Of the confession of a person are confined to himself and cannot be extended to somebody else. Both the aforecited precedents are not relevant in the present case.
' Insofar as the case-law referred to by the learned Standing Counsel for the Federal Government are concerned, in case of Sheikh Mahmood Saeed (supra), it was held by the Hon'ble Supreme Court of Pakistan that every criminal case should be allowed to proceed according to law and resort to the provisions of section 561-A, Cr.P.C. Should not be lightly made, as the same would tend to circumvent to the due process of law. In Sheikh Muhammad Yamin's ,case (supra), the Hon'ble Supreme Court of Pakistan refused to quash the proceedings against the petitioner and observed that the mere fact that a person had been formally charged under certain provisions of law did not necessarily mean that he stood convicted or condemned. In the case of Mst. Saleem Bibi (ibid) this Court held that partial quashment of a criminal case is not permissible under the law. The proceedings relied upon by the learned Standing Counsel are quite apt and support his plea that no interference by this Court at this stage is called for.
8. Since the trial has already commenced, therefore, making any observations on the pleas advances by the learned counsel for the petitioner would not be appropriate or desirable inasmuch as the said pleas relate to the merits of the ca:' and it cannot rightaway be said that there is no case against the petitioner. The credibility of the prosecution's star witnesses against the petitioner, namely, Abbas and Latif will be determined only by the learned Trial Court. Likewise the necessity of getting their statements recorded by a Special Judicial Magistrate will also be ascertained during the course of trial. Any interference at this stage by this Court in exercise of its powers under section 561-A, Cr.P.C. Will tantamount to pre-empting the functions of the learned trial Court. The prosecution at this stage in case of such a serious nature cannot be deprived of its right to prove its case against the petitioner. There is no merit in this petition, which is accordingly dismissed in limine.