' MUHAMMAD AFZAL SOOMRO, J. ---Through this application, the applicant seeks quashment of proceedings of Case State. v. Chaudhary Muhammad Hanif, an outcome of F.I.R No,04/05, registered at P.S. F.I.A Passport Cell, Karachi, for an, offence under section 6(1) (g) (h) Passport Act- 1974 read with sections 411, 468, 471, 473, 474, 34, 109 P.P.0 & section 3(1)/4 Ordinance LIX- 2002 (Prevention & Control of Human Trafficking), registered by Inspector Rasheed Ahmed Shaikh, Inspector F.I.A, Passport Cell, Karachi on behalf of the State.
2. It is pertinent to mention at the very outset that as regards aforesaid F.I.R two separate charge- sheet were filed i.e, one before the Sessions Court Karachi South, whereas another in the Court of Civil Judge and Judicial Magistrate No,Xth Karachi South. An application 'under section 249-A Cr.P.C. Was moved before the Court of Xth Civil Judge and Judicial Magistrate Karachi South 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 but the applicant directly approached this court praying that proceedings of case/F.I.R pending before the Court of Xth Civil Judge and Judicial Magistrate Karachi South may be quashed mainly on the ground that under , section 561- A, Cr.P.C. It has been contemplated that "nothing in this code shall be deemed to limit or effect 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.
3. The brief fats as per prosecution case in F.I.R No,04/2005, are reproduced therein below:--- "Today on 7-1-2005 a credible information was received to the effect that an agent namely Chaudhry Muhammad Hanif, resident of Defene Housing Authority, Karachi is indulged in the business of Human Trafficking an illegal business of Foreign Visas and Pak Passports etc. Similar information was also received from F.I.A Immigration, Lahore. As such I, Inspector Rasheed Ahmed after obtaining necessary permission from the competent authority arranged a raiding party consisting upon S.I. Munir Ahmed Shah, S.I, Ali Murad, PC's Iqbal Qureshi, Ghulam Sarwar and Rana Khalid Pervez of P.S. F.I.A, Passport Cell, Karachi, under the supervision of Assistant Director/S.H.O.
Saifullah Jokhio, the raiding party reached to the given address i.e, II. No,S-18, 16th Central Street, Phase-II, D.H.A, Karachi on the instance of informant knocked the gate of above said house, resultantly one person came on gate who on questioning disclosed his name as Chaudhary Muhammad Hanif son of Latif, after due introduction conducted the search of bed-room of his house in presence of witnesses S.I. Munir Ahmed Shah and S.I. Ali Murad and it is shown that certain recoveries were made, details of which is mentioned on the F.I.R, Further the F.I.R speaks that during interrogation accused pointed some other incriminating documents lying in his Toyota Corolla car and the same recovery is also included in the present F.I.R. Further the F.I.R speaks that accused failed to give any plausible reply regarding the possession of the said recovered property and so the same were seized under a mashirnama prepared and taken to F.I.A. It is further the case of the prosecution that during investigation accused Chaudhary Muhammad Hanif disclosed that he is indulged in the business of preparation of fake passports/purchasing stolen passports and sending needy persons abroad on the basis of fake/forged documents in connivance with certain persons named in the F.I.R. On the basis of above F.I.R was lodged and pursuant to the investigation two separate sheets were filed, one under the Prevention and Control of Human Trafficking Ordinance, 2002 and another under the provisions of Pakistan Penal Code. Further grievance of the applicant is that he had filed an application under section 249-A, Cr.P.C. Praying to the learned trial Court i.e, Civil Judge and J.M. Court No,Xth Karachi South for acquittal of the applicant/accused but his application was not disposed off but the same remained pending for various dates as the Prosecutor and the 1.0 of the case were using delaying tactics before the learned trial Court for not proceeding with the said application. It is in these circumstances, the applicant has filed the present applibation for quashment of the proceedings of case pending against him before the Court of Xth Civil Judge and Judicial Magistrate Karachi South, under the provisions of Prevention and Control of Human Ordinance, 2002."
4. I have heard Mr. Raza Hashmi, learned counsel for the applicant and so also the State counsel appearing on behalf of the State.
5. 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. He has further contended that the investigation conducted by Inspector Rasheed Ahmed Shaikh, who himself took up the investigation pursuant to the registration of F.I.R and thus the. Complainant has placed himself in triplicate position as he is complainant. A recovery witness and at the same time he has proceeded to himself conduct the investigation of the case, therefore, he has contended that the investigation conducted by Complainant/Inspector Rasheed Ahmed Shaikh 'is' mala fide as the F.I.R police has shielded the actual culprits and implicated the applicant. He has further contended that since for one offence as mentioned in the F.I.R two separate challans under two separate provisions of law were filed before two different courts, therefore, while citing the provisions contained in Article 13 of the Constitution of Islamic Republic of Pakistan, 1973, section 26 of the General Clauses Act and section 403, Cr:P.C. Has contended that settled proposition of law is that a person cannot be tried for the same offence twice: He while placing much stress upon section 403, Cr.P.C. Has contended that this provision of law provides procedural shield, inasmuch as it to try the accused for the similar offence, the Court has to only see whether the parties in two trials are same and the facts and issues proved or not in the earlier trial must be identical with which it is sought to be re-agitated in the subsequent trial. He has contended that admittedly in both the cases sent up for trial before two different courts, the parties and so also the set of witnesses as well as material to be placed are same, but under two different provisions of laws, therefore, according to the learned counsel since the challan filed before the Court of IIIrd Additional Sessions Judge Karachi South. Under .P.P.C, is pending showing certain recoveries, as such the subsequent submission of challan before the Court of Xth Civil Judge and Judicial Magistrate Ka'rachi South under the Prevention and Control of Human Trafficking Ordinance-2002 was not warranted by law: He has further contended that the issue of double jeopardy was examined liberally by this Court in the case of Pir Bakhsh as reported in 1979 P.Cr.L.J. 24 wherein the accused was being prosecuted under section 5 West Pakistan Control of Goondas Ordinance, 1969, on the report of S.H.O and again during pendency of the case sought to be prosecuted under section 14 of the Crime Control Act, and it was held that the later proceedings were held repugnant to constitutional guarantees. Referring to 1995 MLD 1748 wherein provisions of section 403 Cr.P.C. Were discussed, the learned counsel has contended that on the basis of same criminal charge person cannot be vexed twice. He has further contended that even if the prosecution case is taken as gospel truth, it would mean that applicant committed one offence and further the offence being one, therefore, on this Court as well, he cannot be tried twice.
In support of this submission he has referred to the case law reported in 2000 PCr.LJ 204, Referring to the RIR and charge-sheet the learned counsel has further argued that at best the case is that recovery of articles as alleged by the prosecution, which according to him is pending in the Court of IIIrd Additional Sessions Judge Karachi South and the same is to be proceeded and then decided on its own merits.
6. Learned counsel has' also referred to the various provisions of Ordinance LXI, 2002 .And has contended that entire case under the Human Trafficking Ordinance rests on alleged extra-judicial confession of the applicant himself, inasmuch as the F.I.A for reasons best known failed to get the 164, Cr.P.C. Statement/Confessional Statement of the applicant/accused recorded before he has contended that the said allegation is merely based on the inadmissible piece of evidence and it will not be possible for the, prosecution to establish such piece of evidence, during trial. Such statement is hit by Articles 37/38 of Qanoon-e-Shahadat. He has further contended that even otherwise, none of the witnesses were examined under section 161, Cr.P.C. Has not said anything.
Against the present applicant/accused. He has further, contended that no passenger has been shown to have been arrested who could even remotely give his statement that either he was smuggled from Pakistan for any forced labour, exploitative entertainment or for adoption and slavery, therefore, he has contended that in absence of these three ingredients the provisions of Prevention and Control of Human Trafficking Ordinance, 2002 would not apply. He 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 he was having no other option but to directly file the application for quashment under section 561-A, Cr.P.C. Before this Court. He has further contended that there are instance where the application under section 561-A, Cr.P.C. Was in exceptional cases was entertained by this Court and in support of his submissions he has cited the case of Muhammad Kahlid Mukhtar v. State reported in PLD 1997 SC 275. He has further contended that in 1994 SCMR 798 while dealing with the case of Asif Ali Zardari, section 561-A Cr.P.C. Was discussed and it was concluded that section 561-A Cr.P.C. Confers upon High Court inherent power to make such order as may be necessary to give effect to any order under this code or to prevent abuse of process of any Court or otherwise to secure the ends of justice. These powers are very wide and can be exercised by the High Court. He has pointed-out that in this authority it was specifically laid down 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 contended that the mala fide on the part of the F.I.A is apparent from the position that though it is shown that the alleged raid was conducted on the basis of information which according to the prosecution was received in advance, yet he has contended that not a single person 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, he has contended that it is a case where provisions of section 103 Cr.P.C. Were violated and even for entering into the house of applicant no search warrants were obtained, as such, according to him it is a case where the mandatory provisions of law have been violated, therefore, he has submitted that the fate of the case is such that ultimately the applicant/accused is to be acquitted by the trial Court for the lapses on the part of the prosecution. Learned counsel has also contended that it is a well-settled principle of law that if a part of the proceedings is found to be violative of law, the whole structure of the proceedings would collapse. Learned counsel has also cited PLD 1983 Quetta 122, 2003 YLR 2097 Karachi, 1992 P.Cr.L.J. 2054 Karachi and 2004 YLR .1321 Karachi. He has requested for quashment of proceedings of the case.
7. On the other hand the State counsel appearing on behalf of the State has vehemently opposed 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 until and unless malice is shown on their part to falsely depose against the accused. He has further contended that raiding party on the basis of definite information received conducted raid and the applicant was arrested and on account of the recovery effected, F.I.R was registered. He has further contended that the two separate charge sheets were filed before two different courts whereby the case was splitted. He has further contended that provisions of section, 26 of General Clauses Act, 1897 does not debar the simultaneous prosecution. He has contended that application under section 561-A Cr.P.C. Is liable to be dismissed.
8. I have heard and considered the arguments of the learned counsel appearing on behalf of the respective parties and have also gone through the case-law cited at the bar.
9. Before proceeding further with this order I would like to first mention here that case of the, prosecution is resting on the basis of information which was received in advance and thereafter, it is shown that F.I.A police party consisting of various officers/officials reached at the residence of the applicant, who came out and then it is shown that from the room certain recoveries of passports etc. Were made and later it is shown that from the car of the applicant as well as certain' recoveries effected. Mashirnama with regard to such recovery was prepared wherein merely officials of the were made as mashirs. F.I.R in this case was lodged after such recoveries whereby the case was registered under the provisions of the Passport Act as well as under the provisions of Pakistan Penal Code and so also under A the Human Trafficking Ordinance LIX, however, at the stage of submission of challan the case was splitted whereby two separate charge-sheets were filed, one before the Sessions Court regarding recoveries made under the Pakistan Penal Code and the other before the Court of Judicial Magistrate under the Prevention and Control of Human Trafficking A Ordinance, 2002, but the fact is that the allegation and set of witnesses are same, therefore for one charge the applicant was challaned to face trial before two different courts.
10. Now I would revert to the provision contained in section 403 Cr.P.C. Which is based on the ancient maxim "nemodebts bis vexari", which means that a person cannot be tried a second time for an offence which is involved in the offence with which he was previously charged. The same principle autrefois acquit (formerly acquitted) and autrefois convict, (formerly convicted) is prevailing in the common law. There is force in the submissions advanced by the learned counsel for the applicant/accused that section 403 Cr.P.C. Along with section 26 General Clauses Act provides procedural shield, and this view gets support from the case law reported in. PLD 1998 Lahore 239, Rule against "autrefois acquit" finds place in 8.403 (i) Cr.P.C. And the counterpart of said rule "autrefois convict" has received cognition in the constitutional guarantee embodies in Article 13
(b) of the Constitution of Islamic Republic of Pakistan, 1973, essentials to get benefit of section 403 Cr.P.C; or that the parties in two trials must be the same, as has been held in PLD 1990 Karachi 286.
No doubt true that provisions of section 26 of the General Clauses Act, 1897 does not debar the simultaneous prosecution but is prohibits duplicate punishment and not the trial. Reference is made to 1995 SCMR 626.
11. Keeping in view the above dictum laid down by the superior courts. I am of the view that when once the F.I.R was lodged under the provisions of Passport Act, Pakistan Penal Code as well as Ordinance LIX of 2002 then the question arises as to what was the occasion in filing separate charge sheet, when easily such an offence can be tried at one trial. To this aspect of the matter have no hesitation in observing that the learned State Counsel has no argument to substantiate on this aspect of the case as to why separate charge sheet were filed when easily at one trial the case can be tried by one Court, which in the present case would be the Court of sections as sections 473, 474 are triable by the Court of Session and, more particularly, in view of sections 236 and 237, Cr.P.C.
12. In any case from the above, -it has been proved that for one offence two separate charge sheets were filed whereby the applicant was sent up to face trial for similar offence before two different courts, however, as per counsel for the applicant, now pending-before the Court of IIIrd Additional Sessions Judge Karachi South was filed earlier and the supplementary, charge-sheet pending before the Court of Magistrate was filed subsequently, therefofe, I have no hesitation in observing that filing of the two separate charge sheet in relation to one and same offence was not justified.
13. Further more, there is substance in the submission of Mr. Raza Hashmi, advocate that at least in cases where the raid is shown to have been conducted on the basis of information which was received in advance, the investigation agency is required to ensure the compliance of section 103, Cr.P.C., which are mandatory in nature. No doubt that police officials are as good witnesses as any other witness but the law in its strict senses has insisted upon joining the persons from their locality.
14. Besides the object of section 561A, 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.
15. In the case of Zaheer Ahmed and two others v, The State (PLD 1979 Karachi 186), it has been held that "It is indisputable that on the ground of delay alone, inherent jurisdiction of the High Court cannot be invoked to quash the E proceedings and such interference is permitted only in limited cases whether it is found that proceedings impugned if allowed to continue, would defeat the ends of justice".
16. In the case of Meraj Khan v. Gul Muhammad (2000 SCMR 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.
17. It is also an admitted fact the prosecution has totally 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. In view of the above discussions and the legal position involved. I am of the considered view that no case under Prevention and Control of Human Trafficking Ordinance, 2002, would be made out against the present applicant to be tried before the Court of Xth Judicial Magistrate, Karachi (South), more particularly in the peculiar circumstances of the case as there would not be any probability of the applicant/accused being convicted in the alleged offence.
19. Accordingly, I am of the considered view that it is a fit case where proceedings in Criminal Case No,240 of 2004, pending trial before Xth Judicial Magistrate, Karachi (South), which is mainly based on the subsequent charge-sheet filed, arising out of F.I.R No,04/2005 be quashed as there is no probability of the applicant/accused being convicted in the alleged offence, hence proceedings, pending as above are nothing but abuse of process of the Court. Consequently, I allow this Criminal Miscellaneous Application and in consequence thereof quash the proceedings against the present applicant/accused pending trial before Xth Judicial Magistrate, Karachi (South).