1. This is a typical example where the applicant/accused persons would be detained and after a lapse of months, when the families of the detenu failed to know of their whereabouts, of their kids, husbands, brothers, etc., they were compelled to file petitions before this Court, or before the Supreme Court whereafter some persons having good luck came out of the earth or were found some where away from their homes and some were even booked in some cases. The families would then pray to the Almighty Allah and offer thanks by offering special prayers as at least, they found clues to their beloved relatives even though such persons in custody, appear to have been involved in false cases.
2. By this Cr. Misc. Application the applicant has sought quashment of the proceedings pending before the learned 4th Additional Sessions Judge, Karachi East, bearing Sessions Case No, 132/2007, in Crime No, 24/2007, registered at PS CID Sindh, District Gulshan-eIqbal on 16-2-2007 under Sections 353/324/34/PPC, on the complaint of Inspector Muhammad Israr Awan, posted at CID Civil Lines Karachi.
3. Briefly, the facts of the case are that on the aforementioned date the above FIR was registered after an alleged encounter with the accused persons and the complainant party. As a result, thereof three persons were arrested on the spot who had disclosed the names of complainant as Tariq, Faisal, Aijaz Ali, Naveed, Umar and Javed. The remand of the above named persons was obtained from the Judicial Magistrate on 17.2.2007, in which the names of above mentioned six absconding co accused without their fathers' names were also mentioned.
4. Mr. Qureshi, learned counsel for the applicant inter alia, contended that the accused/applicant was detained by some agency under the impression that he had been engaged with some Jihadi Group/Tanzeem as the applicant was regular in his five times prayers. As a result, the father of the applicant sent applications dated 20-11-2006 not only to the Hon'ble Chief Justice of this Court but to other high-ups, but no clue was found and subsequently, he came to know that his son was confined by the Pakistan Rangers. Hence he approached the learned DAG, Mr. Akhtar Ali Mehmood, (as he then was) who had been pleased to send letters to the different Federal Agencies. In reply, Pakistan Rangers also replied vide letter dated 13th of December, 2006 that the applicant was neither arrested by them nor was he in their custody. As a last resort, the applicant's father filed a Constitutional Petition Bearing No, 897/07 before this Court and during the pendency of the said petition, the applicant's father came to know that his son has been shown arrested in the above crime, hence, the same was not pressed.
5. Learned counsel further contended that on the face of it, the involvement of the accused/applicant in the above mentioned crime has not transpired from any evidence or document and subsequently, the name of the applicant was mentioned as Muhammad Ubaid alias Faizan, alias Abdullah alias Naveed which shows that his name has been substituted by the name of co- accused Naveed, which was mentioned in the FIR and also at Sr. No, 7 of the first remand application. He contended that even otherwise if the accused/applicant was named in the challan, even then the statement of co-accused had no legal value, and further that the investigation has been concluded and subsequently, the accused was remanded to judicial custody. Also that no identification parade was held and that there was no likelihood of conviction of the applicant in the above mentioned case. Therefore, the proceedings against the applicant before the trial Court he contended was a mockery of the law. Learned counsel for the applicant further argued that in such circumstances, the trial Court itself should not have remanded the accused to judicial custody and should have in fact released the applicant forthwith. That even the trial Court had not taken action by itself. He emphasizes that the accused has been falsely roped in by the prosecution on the basis of a mere statement of the co-accused, though not mentioned in FIR or remand report. Therefore, the accused has directly approached this Court for quashing the proceedings pending against the applicant.
6. Learned counsel relied upon the citations reported in 1997 P.Cr.L.J. 1782 (Ghulam Hussain Vs. The State and three others), 2000 SCM R 122 (Miraj Khan Vs. Gul Ahmed and three others), 2000 SCM R 122 (Miraj Khan Vs. Gul Ahmed and three others) 2002 SCM R 1076 (Maqbool Rehman Vs. The State and others) and an unreported judgment passed in Cr. Misc. Application No, 95/07 (Abdul Khalique Vs. The State).
7. The ratio decided in the above judgments is that when there was not an iota of evidence against the accused, that the investigations were based on malafides and that the superior Courts quashed such proceedings, as per inherent powers, under Section 561-A Cr.P.C.
8. Mr. Asadullah Balouch, learned State Counsel is not able to controvert the above position as all the documents have been annexed with the application and conceded that the applicant seemed to be in illegal custody, when the above mentioned FIR was registered. He conceded that the only evidence available against the applicant was the statement of the co-accused but was even the same regarding the other co-accused. The prosecution also failed to show that when the challan was submitted against the accused, as well as the absconding accused, how was the name of the applicant/accused with his parentage, been show/transpired. The record is silent on this score.
9. However, learned the State Counsel suggests that the applicant should approach the trial Court first for a redressal of his grievance.
10. Heard both the learned counsel and perused the record. All the documents clearly spell out that the father of the accused was running from pillar to post for a clue to the whereabouts of his so, and, if his son had been implicated in any case or was found to be in custody, he would have approached the learned trial Court. In such circumstances, I am inclined to agree with the contention of the learned counsel for the applicant/accused that the proceedings before the trial Court are nothing but the wasting of precious time of the trial Court as well as the cause of agony to the applicant/accused for facing a mock trial, and the result of such trial would only be an acquittal as no legal evidence was available to connect the applicant/accused, to the above crime. Consequently, the case Bearing No, 132/07 pending against the applicant/accused only in the Court of IVth Additional Sessions Judge Karachi East is hereby quashed, and the bail bond of the accused be discharged. Cr. Misc. Application No, 123/08 stands allowed in the above terms.