' ZIA PERWAZ, J.---By this application under section 561-A, Cr.P.C. The applicant Mehboob Rahmatullah, co-accused, facing trial for the offence under F.I.R. No,DEC-70/2005-JIAP seeks quashment of proceedings against him.
2. The F.I.R. Was lodged after recovery of Euro 4 lacs from the possession of one Khawaja Jamal Yousuf on 3-9-2005 at Karachi Airport after he boarded a Dubai bound aircraft. The applicant was not named in the F.I.R. He is alleged to have been roped in at the time of filing of interim challan before the Court of Special Judge (Customs, Taxation and Anti-Smuggling) at Karachi on the basis of statement of co-accused recorded by the I/O under section 161, Cr.P.C. Wherein the co-accused recorded stated that the currency was given to him by the present applicant. Further investigating has taken place and the details of telephone calls made by the present applicant to co-accused Khawaja Jamal Yousuf have been brought on record. Letter has also been placed on record whereby the details of four mobile phone numbers together with addresses of the users of respective telephones have been forwarded by the Consulate General of Pakistan, Commercial Section, at Dubai to the prosecution agency vide letter dated. 14-12-2005. Parawise reply to the application has also been filed by the respondent.
3. Both the learned counsel have argued the application at length on merits and placed complete details on record, therefore, with the consent of the learned counsel I propose to dispose of the same by this order.
4. Contention of Mr. Sohail Muzaffar, learned counsel for the applicant, is that the applicant is a money-changer. He is carrying on his business according to law and has been falsely involved in this case. There is no evidence against the present applicant involving him with the recovery of the amount from the possession of the co-accused. Mere alleged statement of co-accused made before the I/O does not constitute legal evidence that may lead to conviction of the applicant.
Learned counsel stated that it is a requirement of the State Bank of Pakistan that money-changer should have bulletproof vehicles. Co-accused Khawaja Jamal Yousuf is engaged is business of converting the ordinary vehicles into bulletproof vehicles. Applicant got his three vehicles converted to bulletproof vehicles by co-accused Khawaja Jamal Yousuf and as the vehicles were covered by guarantee provided by Khawaja Jamal Yousuf and for purposes of day to day trouble shooting he often contacted co-accused over the telephone. After explaining the aforesaid position Mr. Sohail Muzaffar proceeded to argue that in pursuance to the provisions of the Economic Reforms Act, 1992 the co-accused has already filed a Constitutional Petition No,D-1299 of 2005 before this Court claiming the amount to be legally owned by him which is pending disposal.
That neither the present applicant was travelling nor he claims the currency. That even otherwise taking out of foreign currency does not constitute an offence as held by this Court in the case of Agha Faqir Muhammad v. Federal Government of Pakistan and another (2000 MLD 1576) in which reliance on the case of Federation of Pakistan v. Shaukat Ali Mian (PLD 1999 SC 1026) has also been placed. While arguing the point of jurisdiction he has placed reliance on the cases of Muhammad Haroon v. The State (1980 PCr.LJ 579), Muhammad Tahir v. The State (1991 PCr.LJ 644) and Miraj Khan v. Gul Ahmed (2000 SCMR 122).
5. Mr. Sohail Muzaffar has argued that in the facts and circumstances explained above this is a case calling for exercise of inherent jurisdiction of this Court to prevent the injustice and abuse of authority in case constituting no evidence. Even of the entire material available including details of telephone numbers and ownership of telephone, is admitted the same do not constitute any evidence against the present applicant connecting with the commission of the offence. Learned counsel further contended that due to the pending Constitution Petition No,1299 of 2005 it would be futile for the applicant to approach before the learned trial Court as the matter is also sub judice before the High Court and as a matter of propriety the learned trial Court would restrain from deciding it till the disposal of the same for the time being. As such a case constituting extraordinary circumstances as laid down by the Honourable Supreme Court in the case of Bashir Ahmed v.
Zafar-ul-Islam (PLD 2004 SC 298) is made out. In support of this learned counsel has also relied on Criminal Miscellaneous No,461 of 2000 decided by this Court in which same view was taken and against which the petition for special leave to appeal filed by the State was also dismissed by the Honorable Supreme Court.
6. Mr. Mehmood Alam Rizvi, learned D.A.-G., appearing for the State, has vehemently opposed the application. He has also filed written reply to the application wherein he has raised objection as to the maintainability of the present application on the ground that the applicant has not approached the trial Court. That the final challan is yet to be filed. That the investigation is still under progress and prima facie case has been made out against the present applicant. In his arguments learned D.A.-G. As well as I/O, who is also present, admitted the fact that the applicant got his vehicles converted to bulletproof vans by co-accused Khawaja Jamal Yousuf. Learned D.A.- G., has also stated that during the period from the date of recovery i.e, 3-9-2005 the prosecution has gathered certain material and in case no further evidence incriminating the present applicant with the commission of the offence is gathered then he would be let off at the time of filing of final challan. In support of his contentions he has placed reliance on the case of Bilawal Jakhrani and Naseer Jakhrani v. The State (2003 YLR 2117), Naseem Malik v. The State (2004 SCMR 283), The State v. Asif Ali (PLD 2001 SC 536), Altaf Hussain v. Abdul Samad (2000 SCMR 1945), Muhammad Latif v.
Mian Ahmed Ali (2002 SCMR 1264) and The State v. Muhammad Nawaz (2002 SCMR 634).
7. The objection raised by Mr. Rizvi as to the question of jurisdiction of this Court to entertain the application under section 561-A, Cr.P.C. Earlier came up for consideration before the Court in Criminal Miscellaneous No,461 of 2000. After consideration of the relevant provisions it was held that this Court has the jurisdiction in the matters pending before Special Judge (Customs and Taxation) Karachi. Both the learned counsel admit that the view also found favour with the apex Court and petition for leave to appeal against the said order was refused. I am in respectful agreement with the view taken. Earlier also the same view was taken in the case of Muhammad Haroon (supra) wherein it has been observed as under:-- "Mr. Usman Ghani, learned Advocate-General had objected to the jurisdiction of the High Court under section 561-A, Cr.P.C. In respect of matters pending before the Special Judge (Customs and Taxation), Karachi in view of the provision of section 185(f) of the Customs Act. But Mr. Hayat Junejo has shown me a judgment of Mr. Justice Mushtak Ali Kazi in Criminal Misc. Application No,386 of 1974 dated 24th September, 1978 where he has held that High Court has still power under section 561-A of Cr.P.C. To quash the proceedings before the Special Judge (Customs and Taxation)
Karachi in spite of provision of section 185 of Custom Act. With respect I follow this decision and I have therefore made above order. This Miscellaneous Application is thus disposed of in terms of the above order."
8. Coming to the extraordinary circumstances in this case calling for indulgence at this stage it is admitted position that co-accused has already filed a Constitutional Petition No, D-1299 of 2005 before this Court claiming that in pursuance of the Economic Reforms Act, 1992 the amount to be legally owned by him which is pending disposal. Neither the applicant was arrested on the spot nor any recovery has been effected from the possession of the applicant. Even otherwise taking out of foreign currency does not constitute an offence as held in the case of Agha Faqir (supra) (2000 MLD 1576) and in the case of Federation of Pakistan (supra). Consequently it appears to be a case of extraordinary circumstances.
9. As regards the point raised by the learned D.A.-G. That the investigation is pending and thus the application is not entitled to the relief prayed for, I have perused the record and it appears that in spite of lapse of over four months there is no evidence connecting the present applicant with the commission of the offence. The telephone calls made have been duly explained for which no convincing reply could be given by the prosecution to the explanation that in connection with the conversion of the vehicles the applicant and co-accused remained in contact with each other.
Furthermore, the statement made before the Court to the effect that if no incriminating evidence is unearthed, the applicant would be let off confirms the fact that on the basis of statement made by the co-accused before the I/O and record of the telephonic calls above, the prosecution itself is not in a position to controvert the fact that there is no evidence involving the present applicant with the commission of the offence as also admitted before the Court at the bail stage and attracts the principles laid down in case of Muhammad Hanif Pathan v. The State and 3 others (PLD 1991 Karachi 121).
10. The case-laws cited by the learned D.A.-G. Are distinguishable from the present case and are not attracted to the facts of the present case. In case of The State v. Muhammad Nawaz (supra) the applicant was a Controller of Customs at Quetta and was specifically requested through a letter not to sanction rebate to Messrs Coceral Export House till the matter is finalized. However, despite the same he sanctioned the claim, hence the case was of a nature in which evidence was required to be adduced, hence the quashment of the proceedings was declined.
11. In case of Muhammad Latif and others (supra) the Special Judge had initially issued process after going through inquiry report as well as primary evidence brought on record and in the meantime acquitted the accused under section 249-A, Cr.P.C. However, this is a case in which prosecution has not brought on record any incriminating evidence against the applicant.
12. In case of Altaf Hussain (supra) the quashment of proceeding was refused in view of the fact that there was question as to whether the offence for which the accused was facing trial was falling under paragraph one of section 506(1) or paragraph 2.
13. In case of State v. Asif Ali (supra) the case property consisted of gold, liquor and silver ingots of foreign origin. In the present case an amount of Euro 4,00,000 are involved and taking out of foreign currency does not constitute and offence as discussed above. No foreign currency was recovered from the possession of the accused.
14. The case of Naseem Malik (supra) pertains to a cancellation of bail while in the case of Bilawal Jakhrani (supra) the accused were involved in offences under section 365-A, P.P.C. And 7 of the Anti-Terrorism Act, 1997 and are entirely distinguishable from the present case.
15. Albeit the powers available under section 561-A, Cr.P.C. Are to be exercised in cases where alternate remedy is not appropriate as held by this Court in case of Shahid Muhammad Khan and 2 others v. 'the State and another (PLD 1993 Karachi 1) wherein it was observed as under:-- "11. Before I take leave I would like to dispose of a legal objection raised by Mr. Ashique Hussain Leghari, learned counsel for respondent No,2, who has contended that the applicants ought to have moved the trial Court for acquittal under section 249-A, Cr.P.C., before invoking the inherent jurisdiction of this Court. The learned counsel for respondent No,1, should have known that a complete answer to this objection is provided in the cases of Mian Munir Ahmed v. The State reported in 1985 SCMR 257, Ghulam Ali v. Javid and another reported in 1989 PCr.LJ 507 and Wahid Hussain v. The State and 8 others reported in 1990 PCr.LJ 1209. In the first cited authority by the Supreme Court observed as follows:-- ' That the powers of the trial Court under section 249-A, Cr.P.C. And 265-K, Cr.P.C. Are co-extensive with the similar powers of the High Court under section 561-A, Cr.P.C. And both can be resorted to.
' It would, of course, be proper to approach the trial Court in the first instance but there is nothing to bar the High Court from entertaining, in appropriate cases, an application under section 561-A, Cr.P.C. Directly.
12. For the reason given above, I accept this application made under section 561-A, Cr.P.C. And.
Direct the quashment of above proceedings pending against the applicants in the Courts of Civil Judge and F.C.M. Tando Allahyar."
16. In the case of State v. Gulzar Muhammad and others (1998 SCMR 873), the Honourable Supreme Court has examined the powers of the High Court for Entertaining an application under section 561-A, Cr.P.C. Directly and observed as under:-- "7. The case-law surveyed would, therefore, clinch the matter. The trial Court can acquit the accused under sections 249-A and 265-K, Cr.P.C., as the case may be, at any stage of the proceedings and in the 'circumstances of each case the appropriate remedy for the accused appears to be to request the trial Court to consider their case under the provisions of law. The learned trial Court should thereupon apply its mind to this aspect of the matter and in the first instance, before it proceeds any further with the proceedings, shall decide whether the accused are entitled to be acquitted it terms of section 249-A or 265-K, Cr.P.C. If the accused are not held entitled to the acquittal in the terms aforesaid then they have the right to approach the High Court for quashment of the proceedings against them. This rule proceeds on prudence and cautiousness. Nonetheless, . Both the jurisdictions under sections 249-A/265-K and 561-A, Cr.P.C.
Are co-extensive. In the instant case, it would have been proper to approach the trial Court in the first instance but there is nothing against the High Court for entertaining in appropriate case, an application under section 561-A, Cr . P. C . Directly."
17. In the light of the facts of this case the applicant has been able to establish that the matter being sub judice before this Court, as a matter of propriety the applicant may invoke the jurisdiction of this Court under section 561-A, Cr.P.C. In the facts C and circumstances of the case.
That the matter complained of would be an exercise in futility as the entire evidence even if admitted "does not incriminate the applicant in any manner" cannot lead to conviction of the applicant amounting to abuse of process of Court.
18. In view of the foregoing discussion, the applicant has made a case for quashment of the proceedings to the extent of the applicant under F.I.R. No,DEC-70/2005-JIAP. Accordingly, this Criminal Misc. Application is allowed as prayed.