1. ' MUHAMMAD AFZAL SOOMRO, J.---Through this Criminal Miscellaneous Application, applicant, Muhammad Younus Soomro, has approached this Court under section 561-A, Cr.P.C., invoking inherent jurisdiction of this Court whereby he seeks quashment of proceedings pending before the learned Special Judge (Central-I) Karachi in relation to case No,61 of 2000 arising out of F.I.R..Bearing No,1 of 2000 registered under sections 18 and 22 of Emigration Ordinance, 1979 (hereinafter referred as 'the Ordinance') of P.S. FIA Sea Port, Karachi.
2. ' Brief facts leading to the filing of the present Criminal Miscellaneous Application are that under the verbal orders dated 24-10-2000 of Deputy Director FIA Immigration Quaid-e-Azam International Airport Karachi F.I.R. Bearing No,1 of 2000 was registered under section 18/22 Immigration Ordinance, 1979 at P.S. FIA Immigration Seaport, Karachi. For the sake of convenience contents of said FIA are reproduced hereunder: "1. Mr. Abdul Nabi Abbasi the then Inspector/S.H.O. F.I.A. Immigration Seaport, Karachi, has submitted report dated 17-6-1977 in Enquiry No,2 of 1997 of FIA Immigration, Seaport, Karachi, according to which it transpired that the matter emerged out as a result of Press Clipping furnished by FIA Head Quarters, Islamabad. This press clipping appeared in daily "The News" dated 31-1-1997 and revealed as under:
(i) A Boat capsized full of men who were promised to be sent to some European Countries by the Agents through illegal routes. A number of Pakistanis were on board to that ill-fated boat and drowned due to this accident.
(ii) The ill-fated Pakistanis were sent abroad by an agent of Karachi, based Al-Bilal Enterprises named Iqbal having a sub-agent at Karachi named Maulvi Younus.
2. During the course of above enquiry, the office of the Protector of Emigrants, Government of Pakistan, Karachi, have also given the information. The most important thing is that they have furnished a copy of report of Mr. Muhammad Shari, Deputy Director, Protector of Emigrants, Karachi dated 4-2-1997 addressed to the Deputy Director (OPS). BE & OE, Islamabad. The contents of said report are reproduced as under:-- GOVERNMENT OF PAKISTAN OFFICE OF THE PROTECTOR OF EMIGRANTS No . PES-2(50)/92-96 Karachi the 4th February, 1997 Subject:-- REPATRIATION OF 37 PAKISTANIS FROM GREEK AUTHORITIES Reference Ministry of Foreign Affairs Fax Message dated 22-1-1997 and Director General Bureau of Emigrants and Overseas Employment, telephonic instructions regarding deportees by the Greece Authorities of 37 Pakistanis and their arrival in Karahci by PK-734 dated 23-1-1997. Undersigned along with the staff member Mr. Muhammad Kamil and Mr. Muhammad Adil Khan were present at the Airport to facilitate the deportees on the arrival and to record their statements to find out the involvement of any Licence holder OEP in this racket. The Regional Manager of OPF along with their staff and some persons from PIB were also present. The OPF had arranged financial assistance of Rs,150-200 and Railway Tickets upto destination of the deportees. Flight arrived as per schedule.
3. The 37 Pakistanis were taken on the side in the arrival launch. Statements of some of them were recorded by the undersigned. Most of these persons were belonged to District Gujrat and rest of Gujranwala. Rawalpindi. As per their statement these persons were allured by the fake manpower agents namely Mr. Mazhar and he did not disclose actual residential, or office address to anyone.
4. He gathered 88 Pakistanis from various Districts in Punjab during November and December, 1996 brought them to Karachi. Three persons were handedover to Mr. Muhammad Younus (Tel 2631171) and Mr. Ghaffar, Bhai. (Tel 746305). Their stay in Karachi was, arranged in different hotels near Karachi Cantt: Railway Station. An amount of Rs,2.50 Lac was extracted from each person and they were also provided forged CDC Books. They were travelled to Cairo via different routes such as Kuwait, Doha, Cairo etc., their tickets were arranged by M/s Atlanta Travel Agency, near PIA (Head Office) Saddar, Karachi. In Cairo they were boarded on ship and later on re-shifted to a Cargo ship and then from Cargo ship they were forcibly shifted to a ferry in the open sea. These persons were of different nationalities such as India, Bangladesh, Sri Lanka etc., and also were boarded in the ferry for Greece. However, due to heavy loaded and rough sea they ferry collided with ship near Sislly and Malta. The accident took place in the night of 25-12-1996 and 26-12-1996 most of the persons drowned in the sea, persons of other countries including 37 Pakistanis were rescued by the ship crew who took them to Greece as the ship belonged to said country. They reached Greece on 29-12-1996 and subsequently their repatriation to Pakistan was arranged by the Embassy of Pakistan in Athena. From the statement of deportees it is clear that no Licence holder OEP is involved in this mishap. The complete address of the alleged 3 persons involved in this issue (namely Mr. Mazhar, Muhammad Younus, Abdul Ghaffar Bhai) were not available with any of the Press Clipping appeared in Daily 'Jang' dated 24-1-1997 is enclosed for ready reference and information please.
5. (Sd.)
6. (Muhammad Sharif)
7. Deputy Director Dy. Director (OPS) RF & CF Islamabad
3. From the above Enquiry (Enq No,2/97) and documents so far obtained it has been established that (1) Mazhar, (2) M/s Atlantic Travels, Karachi, (3) Ghaffar Bhai (illegal Immigration Agent), (4)
8. Muhammad Youns (illegal Immigration Agent) and others were involved in sending these Pakistanis, to Greece. As per enquiry, Mazhar allured the persons mentioned above for illegal immigration, collected Rs,2,50,000 each and sent them to Karachi where they were handedover to Muhammad Younus. Ghaffar Bhai provided Hotel accommodation and other facilities to these Pakistanis and tickets were made and provided by M/s Atlantic Travel Agency, Karachi.
9. ' The above act of abovenamed accused persons disclosed the commission of offence punishable under section 18/22 Emigration Ordinance, 1979. Hence registration of this case under the verbal orders dated 24-10-2000 of the Deputy Director F.I.A. Immigration, QIAP, JTC, Karachi and investigation is, being taken up by the undersigned.
10. ' The FIA Authorities submitted challan with the permission of higher authorities. An application under section 249-A, Cr.P.C. Was moved before the learned trial Court praying for acquittal of the applicant taking plea that the applicant has been declared innocent in the case arising out of F.I.R.
11. Bearing No,106 of 1997, lodged by FIA Immigration Airport Islamabad under section 10/22 of Immigration Ordinance, 1979 on the same facts and on the same prosecution story where the applicant was shown as an accused. However, the learned Special Judge. (Central-I) Karachi dismissed the application of the applicant, hence he has approached this Court under section 561- A, Cr.P.C. Invoking, inherent jurisdiction of this Court.
12. ' I have heard Mr. Raza Hashmi, learned counsel for the applicant, as well as Mr. S. Mehmood Alam Rizvi, learned Standing Counsel.
13. ' It has been contended by the learned counsel for the applicant that the applicant is innocent and has been falsely implicated in this matter inasmuch as the entire case is based on presumptions and surmises with no documentary/ocular evidence available in order to connect the applicant with the commission of crime. It has, also been contended by the learned counsel that in fact F.I.R.
14. Bearing No,106 of 1997 was lodged by FIA Immigration Airport Islamabad under section 10/22 of Immigration Ordinance, 1979 with the same facts and on the same prosecution story where the applicant was shown as an accused in the case also earlier to registration of the present F.I.R. At Karachi. He further argued that applicant appeared before the Court of Special Judge Central Rawalpindi in Criminal Bail Application No,15 of 2004 whereby the learned Judge vide order dated 26-1-2004 called the Investigating Officer and on the statement of the prosecutor that the applicant has been found innocent and not involved in the case. He, accordingly, submitted final report in which he prayed for his release. It has, also, been contended by the learned counsel that though the applicant is alleged to be an Agent of Al-Bilal Enterprises in Karachi but no documentary evidence was brought on record to provide that whether the present applicant has any connection with Bilal Enterprises or had collected any amount as an Agent of Bilal Enterprises from any individual or a group of individuals with regard to the commission of an offence. He further submits that the entire case around one 'Moulvi Younus' and the present applicant has been roped into this case by alleging that he was the actual Younus involved in the matter. It has, further, been contended by the learned counsel that in light of the fact that the present applicant has been declared innocent in the case which too has been on the same facts and circumstances, as such, the case of the prosecution before this Court on the same issues shall amount to double jeopardy and is hit by the Article 13 of the Constitution of Islamic Republic of Pakistan, section 26 of General Clauses Act and section 403 of Criminal Procedure. It has, also been contended by the learned counsel that the prosecution has, so far, been able to record statements of four witnesses under section 161, Cr.P.C., at Lahore out of whom two are not traceable whereas other two namely Mian Khan and Muhammad Khaliq have exonerated the applicant. He has relied upon the cases of Muhammad Sharif v. Mazharul Haq and 5 others (1983 PCr.LJ 1440); Aarub Khan v. Haris M.B. Ahmad and others (PLD 1996 Kar. 253); and Zahoor-ud-Din v. Khushi Muhammad and 6 others (1998 SCM R 1840) in support of his contentions.
15. ' Learned Standing Counsel has contended that according to statement of witness Muhammad Saleem, recorded under section 161, Cr.P.C., at Rawalpindi where the applicant has been declared innocent. He further submitted that he has also been surprised to note that why F.I.R. Of the same facts and prosecution story was registered at Karachi whereas supplementary report could have been filed at Rawalpindi. Ultimately he conceded that this application may be allowed.
16. ' I have considered the arguments of the learned counsel for the applicant and the learned Standing Counsel, perused the record and have also gone through the case-law, cited as above.
17. Perusal of record reveals that F.I.R. Bearing No,106 of 1997 was lodged by FIA Immigration Airport Islamabad under section 10/22 of Immigration Ordinance, 1970 on the same facts and prosecution story where the applicant was shown as an accused earlier to registration of the present F.I.R. At Karachi. However, the applicant appeared before the said Court of in Cr.B.A. No,15/22 whereby the learned Judge vide order dated 26-1-2004 'called the Investigating Officer and on the statement of the Prosecutor that the applicant has been found innocent and not involved in the case and prayer was made for his release. Further more, though the applicant is alleged to be an Agent of Al-Bilal Enterprises in Karachi but no documentary evidence has been brought on recorded to prove that whether the present applicant has any connection with Al-Bilal Enterprises or had collected any amount as an Agent of Al-Bilal Enterprises from any person with regard to the commission of an offence. In light of the fact that the present applicant has been declared innocent in the case which too has been on the same facts and circumstances, the case of the prosecution before the Special Court at Karachi on the same issues shall amount to double jeopardy and obviously provisions of Article 13 of the Constitution of Islamic Republic of Pakistan, section 26 of General Clauses Act and section 403 of Criminal Procedure Code shall apply. The record, produced before me, further shows that the prosecution recorded statements of four witnesses under section 161, Cr.P.C., at Rawalpindi out of whom two are not traceable whereas others two namely Mian Khan and Muhammad Khaliq have exonerated the applicant.
18. ' It appears that the trial Court while dismissing the application of the applicant, moved under section 249-A, Cr.P.C., has ignored legal aspects and proposition involved in the case. Resultantly, failure of the trial Court to appreciate the material brought on record frustrate all practical purposes of section 249-A, Cr.P.C.
19. The object of section 561-A, Cr.P.C. Whereby inherent powers are conferred upon this Court is to do the real and substantial justice and to prevent the abuse of the process of Court. To secure the ends of justice powers of this Court are very wide. In the case of M.S. Khawaja v . The State (PLD 1965 SC 287) following observations were made by the apex Court:- "To quash a judicial proceedings in order to secure the ends of justice would involve a finding that if permitted to continue, that proceeding would defeat the ends of justice, or in other words, would either operate or perpetuate an injustice. To find an abuse, it would be necessary to see in the proceedings, a perversion to the purpose of the law such as to cause harassment to an innocent party, to bring about delay, or where the machinery of justice is engaged in the operation from which no result in furtherance of justice can accrue, and similar perverse results."
20. ' In the case of Meraj Khan v. Gul Muhammad (2000 SCM R 122), it was observed by the Hon'ble Supreme Court that the main consideration to be kept in view would be whether the continuance of the proceedings before the trial forum would be futile exercise, wastage of time and abuse of process of Court or not. If on the basis of facts admitted and patent on record no offence can be made out against the present applicant then it would amount to abuse of process of law to allow the prosecution to continue with the trial against him.
21. In view of this background, I am of the considered view that no case would be made out against the present applicant at the time of conclusion of trial and there is no probability of the applicant being convicted in the alleged offence. There appears to be mala fide on the part of FIA Authorities.
22. Accordingly, I am of the considered view that it is a fit case where proceedings pending before the learned Special Judge (Central-I), Karachi in respect of the present applicant be quashed as there is no probability of the applicant being convicted in the alleged offence, hence proceedings, pending as above, are nothing but abuse of process of the Court.
23. ' Consequently, this Criminal Miscellaneous Application is allowed and the proceedings against the present applicant pending before the learned Special Judge (Central-I) Karachi in case No,61 of 2000 are quashed.
24. ' Criminal Miscellaneous Application No,40 of 2005 stands disposed along with listed application.