' KAZIM ALI MALIK, J.---Shujjat Ali, A.S.-I. Of Police Station Banni, Distt. Rawalpinid was on normal patrol duty on 7-3-2003 when at about 2-15 a.m. a person met him on Ghazni Road and was identified as Bakhat Zada son of Khan Zada caste Pathan resident of Kabul (Afghanistan). He was not possessed with passport or any other document allowing him to stay in Pakistan. The A.S.-I.
Therefore, got registered case F.I.R. No. 119 of 2003 under section 14 of the Foreigners Act and arrested Bakhat Zada.
2. Bakhat Zada, petitioner/accused has filed this petition under Article 199 of the Constitution read with section 561-A, Cr.P.C. For quashment of the above-said F.I.R. Mainly on the ground that he was not a foreigner and was resident of Chanar, Bajaur Agency. On 28-5-2003 notice was issued to the respondents for 16-6-2003 and it was directed that till then the accused/petitioner shall not be shifted to Mohajir Camp established for Afghan Refugees. On 16-6-2003 the petitioner produced before this Court, his own National Identity Card and that of his father and real brother besides a certificate issued by an M.N.A. Of Bajaur Agency in order to substantiate his contention that he was not a foreigner. On the said date this Court allowed bail to the petitioner in the sum of Rs.30,000 with one surety in the like amount to the satisfaction of the Deputy Registrar (J.) of this Court and the documents produced by the petitioner in support of his version were dispatched to the Political Agent of Bajaur Agency for verification.
3. In the meantime the investigating agency concluded the investigation and submitted final report under section 173, Cr.P.C. (challan) in the Court of Area Magistrate. Bakhat Zada, petitioner, however, did not make himself available for trial. His attendance could not be procured by the learned trial Court through all legal means including the coercive measures. After having failed to procure attendance of the petitioner for trial, the learned trial Magistrate stopped the proceedings without pronouncing any judgment either of acquittal or conviction in terms of section 249, Cr.P.C.
By adopting a self-styled procedure unwarranted in law. The learned Magistrate was required to initiate proceedings against the Court-absconder in terms of sections 87 and 88, Cr.P.C. The available record does not tell as to what were the circumstances which persuaded the Area Magistrate to follow a novel procedure in utter disregard of the mandatory provisions governing the subject of absconding accused. A bare perusal of section 249, Cr.P.C. Would show that proceedings against the accused present in Court can be stopped without pronouncing any judgment of acquittal or conviction. Admittedly the accused was not present before the trial Court when the proceedings had been stopped against him under the aforesaid provision of law. For facility of reference section 249, Cr.P.C. Is reproduced below in verbatim.
"249. Power to stop proceedings when no complainant.---In any case instituted otherwise than upon complaint a Magistrate of the First Class, or with the previous sanction of the Sessions Judge, may for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment either of acquittal or conviction, and may thereupon release the accused."
(The key words of the provision have been underlined)
4. Be that as it may the fact remains that the petitioner-accused was/is not available for trial in the main case and for disposal of the petition in hand. His learned counsel has also not appeared to prosecute his case and cause set up in the petition. In the given circumstances, I do not find it appropriate to keep pending this petition for an indefinite period awaiting appearance of the petitioner/accused. I have minutely gone through the available record and would say with certainty that for multiple reasons the petition in hand is not maintainable and competent in its present form. Firstly, the petitioner was arrested by the local police on the charge of staying in Pakistan without valid documents. The petitioner challenged the allegation set up in the F.I.R. By means of this petition with the plea that he was not a foreigner and was resident of A Bajaur Agency. He produced certain documents before this Court in support of his plea, genuineness of which had been challenged by the learned law officer. Collection of evidence is the function of investigating agency. This Court while deciding a petition under Article, 199 of the Constitution read with section 561-A, Cr.P.C. Is not supposed and expected to assume the role of investigator. The petitioner/accused should have put forward his defence version and the documents before the investigator instead of this Court. The provisions of Article 199 of the Constitution are not meant to hamper investigation of criminal cases, particularly when the subject of investigation falls within the exclusive domain of the police/investigating agency. It is true that High Court is possessed with inherent powers under section 561-A, Cr.P.C. But the said provisions are not meant for the purpose of thwarting the criminal proceedings pending before the learned trial Court or the investigation pending before the investigating agency. Secondly, two conflicting versions/claims have been laid before this Court; one by the police and the other by the petitioner/accused. The investigating agency alleged that the petitioner being Afghan national was not authorized by law to stay in Pakistan without valid documents. On the other hand the petitioner accused claimed to be Pakistani and resident of Bajaur Agency placing reliance on certain documents. This Court is not obliged to examine, analyse and scrutinize the above-said counter-claims with the yardstick of the trial Court.
5. For what has been stated above, I dismiss this petition being without any substance. Due to wilful absence of the petitioner/accused before the learned trial Court after getting bail from this Court, I re-call the concession of bail granted to him and consequently forfeit the bail bonds in favour of the State. The Deputy Registrar (J.) of this Court is directed to transmit the bail bonds to the trial Court for initiating required proceedings against the surety of the petitioner-absconder in terms of section 514, Cr.P.C. A copy of this judgment shall also be sent to the learned trial Court for its guidance.