' MUHAMMAD AFZAL SOOMRO, J.---Through this application, the applicant/accused Dr. Zafar Iqbal son of Muhammad Zaman seeks quashment of proceedings of Cr. Case No,259 of 2004 against him which is outcome of F.I.R. No,79 of 2004, under section 3(1)(4), Prevention and Control of Human Trafficking Ordinance No,LIX-2002, registered as Police Station, F.I.A. Passport Cell, Karachi on the report of Inspector Zaffar Iqbal, Incharge Shift C. F.I.A., Immigration (DEP) JIAP, Karachi, on behalf of the State.
2. Facts .Of the prosecution case as mentioned in the F.I.R. Are that on 27-3-2004 at 0150 hours F.I.R.
No,79 of 2004 was registered at 0150 hours at F.I.R. Passport Cell, Karachi. According to which the date and time of the incident shown in 25/26 of March, 2004. The F.I.R. Is based on the written report according to which it is shown that passengers namely (1) Miss Salma Shaheen Khan, PP. No, 025889/ 8-10-1999/Karachi (2) Muhammad Ashraf son of Saleheen, PP No, KB 328042/ 21-11- 2003/Hyd, (3) Rizwan Syed son of Muhammad As. PP No,KJA688306/ 17-1-2002/Lahore, (4) Ammar Aslam son of Muhammad Aslam PP. No,KB311596/14-12-2002 Lahore (5) Sameeullah son of Sanaullah PP No,KC781526/ 5-11-2003/ Gujrat, (6) Arsalan son of Mumtaz Ali Bhatti, PP No,KB843030/3-5-2003/Sialkot and (7) Saghir Khan son of Mian Khan, PP No,KD 197674/5-3- 2004/Gujrat, were proceeding to Cyprus by Turkish Airline via Flight No,TK 1057. On surprise checking headed by Mr. Zubair Ahmed, A.D. (Dep) in the lounge the activities of all the seven passengers noticed as suspicious. When they were intercepted and questioned, they become confused. When their baggage was off-loaded, from the aircraft. It was found booked for Vienna and Munich, whereas they were booked for Cyprus. Hence they were off-loaded and Mr. Imran Khan, Trainee Traffic Assistant of Gerry's Danata was asked as to any their baggage was booked for Vienna and Munich, he disclosed the facts which have been reduced in his statement. Turkish Airline Staff was not available for further verification. The person mentioned at Sr. Nos.3 to 7 disclosed that the persons at Sr. Nos.1 and 2 were carrying them to abroad. This act of pax at Sr.
Nos.1 and 2 amounts to Human Smuggling. Hence they all were off-loaded and ultimately sent to the Passport Cell.
3. Further according to the contents of F.I.R. It is shown that the sector of these tickets was Karachi- Istanbul-Vienna and Munich. Passengers at Sr. Nos.3, 5 and 7 were booked up to Munich and the rest for Vienna, Complainant asked passports of the passengers but Mr. Imtiaz told that he has checked the passports and directed to book their luggage to the desired destination and accordingly board cards up to Vienna and Munich were issued and they were accepted on the instruction of Mr. Imtiaz. Further according to complainant after a while Mr. Arshad, Counter Supervisor of Gerry's informed that these passengers have been off-loaded by Immigration.
Complainant gathered the coupons of the tickets, which Mr. Iqbal, Traffic Officer of Turkish Airline took away.
4. The case of the prosecution further is that during preliminary enquiry at the Passport Cell, the off-loaded Miss Salma Shaheen Khan disclosed that she is doing the business of carrying children to European countries on the instructions of her big-boss/gang leader Dr. Zaffar Iqbal, resident of Glaxy Apartments, Badar Commercial, DHA, Karachi and another Mian Sohail, resident of 29-C, Badar Commercial, Phase, Phase V, Karachi, Mobile Phone No,0333-2311847. She added that on the instructions of Dr. Zaffar Iqbal and Mian Suhail she intended in carrying children namely Ammar Aslam and Arsalan to.Munich. As per program she came at JIAP, where Mian Sohail handed over above named children with information that all three are booked for Karachi-Istanbul-Munich by Turkish Airline on the basis of tickets issued from M/s Polani Travels, Karachi. He further instructed her that Mr. Imtiaz will arrange/obtain their boarding passes from the airline counter on the basis of other passports but you should get immigration clearance on the present passports i.e, issued in real identity, as such, she along with above named children entered in departure lounge where his associate/ member of the gang Muhammad Ashraf also accompanied in the lounge along with three children. However, later they were off-loaded and brought at the Passport Cell. Further according to F.I.R. The offloadee namely Muhammad Ashraf also corroborated the contents of the statements of lady namely Salma Shaheen Khan.
5. It is further shown that the children above named were also examined and it revealed that the travelling documents for sending them to Munich and Vienna were arranged by Dr. Zaffar Iqbal, Mian Sohail and Fazal and for this purpose they demanded and received Rs,5 to 6 lacs per child. On the basis of above and other facts mentioned in the F.I.R. Aforesaid case was registered under the above provision of law. Usual investigation in the case was thereafter conducted by Sub-Inspector Rehmatullah Domki, who filed charge-sheet No,216 of 2005 dated 10-4-2004.
6. An application under section 249-A, Cr.P.C. Was moved before the trial Court i.e, Vth Civil Judge and Judicial Magistrate, Malir, Karachi, praying for an order of acquittal under section 249-A, Cr.P.C.
The said application as it appears remained pending and not proceeded before the trial Court and the present applicant Dr. Zaffar Iqbal has directly approached this Court praying that proceedings pending before the Court of Vth Civil Judge and Judicial Magistrate, Malir, Karachi, may be quashed mainly on the ground that his involvement is based on the basis of extra judicial confession of the co-accused in the case, which is inadmissible under Article 38 of Qanun-e- Shahadat, 1984 Mr. Raza Hashmi, at the very outset has referred to the provision contained in section 561-A, Cr.P.C. Wherein it has been laid down that nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary so as to prevent abuse of the process of the Court or otherwise secure the ends of justice, therefore, he is of the view that applicant has rightly approached this Court since his application under section 249-A, Cr.P.C. Was not decided by the trial Court.
7. I have heard Mr. Raza Hashmi, learned counsel for the applicant and the State counsel appearing on behalf of the State.
8. It is contended by learned counsel for the applicant that applicant is a peaceful law-abiding citizen and has been falsely implicated in this case. Further, the learned counsel referred to the various provisions of Ordinance LXI-2002 and has contended that entire case under the Human Trafficking Ordinance rest on alleged extra judicial confession and that too by the co-accused in this case. He further contended that in case the stand taken by the F.I.A. Cannot be taken as gospel truth when nothing prevented them from getting the said accused examined before the Judicial Magistrate, inasmuch as according to him since the Investigation Agency, viz. F.I.A. Passport Cell for reasons best known to him failed to get 164, Cr.P.C. Statement/ confessional statement of the co- accused recorded before any Judicial Magistrate, therefore, according to him the case for trial against the present applicant was unwarranted by law.
9. He has further contended that prima facie the case as sent-up for trial against the applicant/accused is hit by Article 37/38 of Qanun-e-Shahadat, 1984 and this legal position shall go to the very root of the case and in no case it can be said that there is even remote possibility and/or probability of the conviction of the applicant/accused, even if the entire prosecution evidence is recorded. He has further contended that even otherwise none of the witnesses examined under section 161, Cr.P.C. Has said anything against the present applicant. Learned counsel has further contended that case of the prosecution is to the extent that five passengers named in the F.I.R. Were arrested along with one Salma Shaheen and Muhammad Ashraf and the statements of these passengers under section 164, Cr.P.C. Were recorded and none of these passengers even remotely took the name of the present applicant/accused in their respective 164, Cr.P.C. Statements.
10. He has further contended that in order to make out a case under the Prevention and Control of Human Trafficking Ordinance more particularly, section 3 of the said Ordinance, it is necessary for the prosecution to prima facie establish a case showing that the passengers were smuggled out of Pakistan or attempted to be smu ggled for the purposes of forced labour, exploitative entertainment, adoption and/or slavery, therefore, he has contended that in absence of these ingredients the provisions of Prevention and Control of Human Trafficking Ordinance, 2002, would not apply.
11. Learned counsel for the applicant has further contended that since the very charge against the applicant is groundless and there is no probability of his conviction, as such, an application under section 249-A, Cr.P.C. Was moved by him, which was not disposed of, as such, the applicant was having no other option but to directly file the present application for quashment under section 561- A, Cr.P.C. Before this Court. He has further contended that there are instances where the application under section 561-A, Cr.P.C. Was directly entertained by the Honourable High Court and in support of his submissions he has cited the case of Muhammad Khalid Mukhtar v. State (PLD 1997 SC 275).
He has further contended that in exceptional cases High Court can exercise its jurisdiction under section 561-A, Cr.P.C., without waiting for trial Court to pass orders under section 249-A or 265-K, Cr.P.C. He has further argued that none from the locality was associated to witness the arrest and alleged recovery inasmuch as all the witnesses cited are the officials of the F.I.A. Passport Cell, therefore, the provisions of section 103, Cr.P.C. Were violated. In support of his contentions he has relied upon the cases of Ameerullah v. State (2003 YLR 2097 Karachi), Abdul Sattar v. State (1992 PCr.LJ 2054 Karachi) and Gulzar Ahmad v. State (2004 YLR 1321 Karachi) and has ultimately prayed for quashment of proceedings of the case, pending before the trial Court.
12. On the other hand, learned D.A.-G. Has vehemently opposed the application for quashment of proceedings and contended that admittedly there was no order from the trial Court, therefore, he has submitted that the High Court has been approached without first seeking the remedy available before the trial Court. He has further contended that non-compliance of section 103, Cr.P.C. Is not fatal to the prosecution as according to him it has been observed by various Courts that police witnesses are as good witnesses as any other until and unless malice is shown to falsely implicate the accused. He has further contended that prima facie involvement of the applicant is apparent from the facts of the case, therefore, according to him the application under section 561- A, Cr.P.C. Is liable to be dismissed. However, he has contended that the passengers who were examined by the F.I.A. Under section 164, Cr.P.C. Have not said anything against the applicant and further that the lady accused arrested was also not got examined under section 164, Cr.P.C.
13. I have heard and considered the arguments of learned counsel appearing on behalf of the respective parties and have also gone through the case-law cited at the bar.
14. Before proceeding further with this order I may mention here that scope of section 561-A, Cr.P.C.
Is wide enough, inasmuch as the powers conferred under section 561-A, Cr.P.C. Can be exercised at any stage if from the facts of any particular case it is proved that the further pendency of the trial shall amount to abuse of the process of the Court. Furthermore, the object of section 561-A, Cr.P.C.
Whereby inherent powers are conferred upon this Court in order to do real and substantial justice in order to prevent the abuse of the process of Courts, it to secure the ends of justice powers of this Court are very wide.
15. In the case of Zaheer Ahmed and two others v. State (PLD 1979 Karachi 186), it has been observed that on the ground of delay alone, inherent jurisdiction of the High Court cannot be invoked to quash the proceedings and such interference is permitted only in limited cases where it is found that proceedings impugned if allowed to continue would defeat the ends of justice.
16. Yet an important aspect which is apparent from the F.I.R. Is to the effect that when the above- named seven passengers were intercepted, it is shown that out of these two accused namely Salma Shaheen and Muhammad Ashraf, were interrogated as they made some disclosure before the investigation by relying on said statement subsequently the present applicant was also joined in the case as one of the accused. It will not be out of place to mention here that there is no judicial confession of these two accused being recorded before any Judicial Magistrate, though it is shown that 164, Cr.P.C. Statements of witnesses namely Syed Irfan Ahmed, Imran Ahmed, Rizwan Saeed, Ummar Aslam, Arsalan and Sagheer were recorded but these witnesses admittedly were not even remotely involved the present applicant. As such at the most evidence against the present applicant is that of alleged disclosure (extra-judicial confession) by the co-accused, which too was not in presence of the present applicant nor at the same time even it is shown that the present applicant was intercepted/ arrested. It is well-settled law that confession by accused before police would be inadmissible in evidence under Article 38 of the Qanun-e-Shahadat, 1984.
17. Furthermore, the evidence collected during investigation and more particularly the evidence attempted to be collected in shape of 164, Cr.P.C. Statements of above witnesses, there is no iota of evidence against the applicant in any way being remained instrumental and that he received any benefit or had taken money for sending people abroad and that too for the purposes as mentioned in Ordinance LIX 2002 (Prevention and Control of Human Trafficking). The prosecution have failed to examine a single witness during investigation, who could give proof of the applicant's involvement under the Prevention and Control of Human Trafficking Ordinance, 2002 as no witness has stated that he was smuggled out of Pakistan for the purpose of exploitative entertainment, slavery, force labour or adoption. Similarly section 4 of the said Ordinance also lays stress on the above four ingredients and unless the offence committed constitute the said ingredients the case under sections 3 and 4 of the Ordinance would not make out.
18. Learned counsel for the applicant/accused to my view was justified in placing reliance on section 561-A, Cr.P.C. And his submission that to secure the ends of justice as the powers of this Court- are very wide and the case-law was rightly relied upon by him.
19. In view of the above discussions and the legal position in-dyed, I am of the considered view that no case under Prevention and Control of Human Trafficking Ordinance, 2002, would be made out as far as the present applicant is concerned and more particularly in the peculiar circumstances of the case there would be no probability of the present applicant being convicted in the alleged offence.
20. According, it is a fit case where proceedings in Criminal Case No,259 of 2004, being an outcome of F.I.R. No,4 of 2005, pending trial before Vth Judicial Magistrate, Malir, Karachi, is to be quashed as there is no probability of the applicant being convicted in the alleged offence.
21. Above are the reasons of my short order dated 10-10-2005, by which I had allowed Criminal Misc.
Application No,149 of 2005 and quashed the proceedings in Cr. Case No,259 of 2004, pending trial, before Vth Judicial Magistrate Malir, Karachi against the present applicant.