1. ' SYED ZAKIR HUSSAIN, J.---This criminal miscellaneous application has been filed for quashment of the F.I.R. Bearing No,30/2008, lodged with Police Station Clifton, ANF, Karachi, against Saqib Asghar Shaikh, the applicant, and two others, namely, Zulqarnain Sikandar and Rustom Jatoi, who is absconding. The said F.I.R. Ultimately culminated into a charge sheet against the nominated persons and the learned trial Court having taken the cognizance began with the trial thereof, which bore Special Case No,155 of 2008.
2. ' Brief facts of the case, are that the ANF authorities got spy information about presence of narcotic substance in the house of one Sami Ahmed Ansari in Gulistan-eJauhar, Karachi, and the informer, namely, Zulqarnain Sikandar, one of the nominated accused and others, met ANF party in front of the gate of Karachi University where, they had been in a car; they led the ANF party to the house referred to above where the ANF left the informer party outside unattended, entered into the pointed house and while all the members of the ANF had been searching out the house from inside in presence of the inmates thereof, including the said Sami Ahmed Ansari and his family, P.C.
3. Pervaiz Shah deployed in the garden of the house, informed the other officials during their process of such search that the informer Zulqarnain had dropped a bag in the garden and managed to escape with his associates. On such information, the officer, namely, Inspector Muhammad Afzal, and other staff members, came to the garden where they secured a bag, under a memo. Prepared by the said officer, before three official mashirs. The same contained narcotic substance i.e,, Charas, weighing 4.50 Kg, which was sealed, after obtaining the sample thereof under seal cover.
4. The ANF left the place of vardat of their office where they registered the F.I.R. And started investigation which resulted in the arrest of the accused Zulqarnain and applicant Saqib Asghar Shaikh, and submission of charge sheet under section 9 (c) of the C.N.S. Act 1997 against them together with one Rustom Jatoi shown as absconder.
5. Accordingly, we have heard the learned counsel for the applicant and the Special Prosecutor General, ANF, and carefully perused the record and law as well. By our short order dated 14-4-2010, we have allowed the application on merits and quashed the F.I.R. And proceedings referred to above so far as they relate to the applicant, for the reasons to be recorded later.
6. ' A perusal of the record shows that there is no incriminating evidence, against the applicant connecting him with the alleged crime in question in any manner whatsoever. His presence with the accused Zulqarnain Sikandar, if any, alone, by itself, does not connect him with the alleged offence; his mens rea is also not open to be established as the investigation is over and no evidence is collected to show that the applicant had knowledge of the presence of the narcotic substance with the accused Zulqarnain Sikandar and that he had been a party to what role is said to have been played by the accused Zulqarnain Sikandar in the instant case. The Investigating Officer of the case attended the Court and in response to a query of the Court, he although admitted to have had a no evidence to establish the guilt of the applicant, towards the commission of the crime, which apparently belongs to the accused Zulqarnain Sikandar in terms of mens rea and actus reus both, but instead, he insisted continuation of trial of the applicant, together with the accused Zulqarnain Sikandar, on the basis of the story, he narrated in the Court that one Rustom Jatoi of Sanghar had provided the said Charas to the applicant Saqib Asghar Shaikh who came to Karachi from Hyderabad together with the same and met his cousin accused Zulqarnain Sikandar who joined him as party to the crime of planting the said narcotic substance against the said Sami Ahmed Ansari at the instance of his business rival, i.e,, accused Kamran Farhat, against joint booty of Rs,4 lakhs. We have examined the record and found that the same does not support the said story. Similarly, the learned Prosecutor-General, ANF, prayed for dismissal of the application, with the contention that the learned trial Court, be directed to proceed with the case and dispose it of, on merits. He admitted the position of the trial Court proceedings in which, the co-accused Kamran Farhat, already stood acquitted under section 249-A, Cr.P.C., for want of incriminating evidence and such order has not been challenged in appeal by the ANF. He does not dispute the position that the main beneficiary of the crime or the principal culprit behind the whole criminal act played and staged by the characters, namely, Zulqarnain and Saqib Asghar Shaikh etc., has got rid of the said trial very conveniently at his earliest with no active possible opposition of the ANF.
7. We are however of the firm view that the case of the applicant Saqib Asghar Shaikh is also likely to meet the same fate and ultimately, the proceedings going on, would not be able to convict him in the crime in question for want of positive incriminating evidence and such proceedings if continued, would bear and carry a status of futile exercise and abuse of process of law.
8. ' The learned trial Court does not appear to have properly appreciated the material on record of the case and it is not understandable how the learned trial Court dealt with the cases of said Kamran Farhat and that of the applicant with two different yardsticks while the ground on which the acquittal of the accused Kamran Farhat took place, also existed in the case of the present applicant very much. In other words, the case of the applicant must have also been disposed of under section 249-A, Cr . P. C . Particularly when he invoked such jurisdiction of the learned trial Court, on the ground that the prosecution had no incriminating material against him and there is no probability of his conviction in case if trial proceeds.
9. Consequently, we therefore, do hereby allow the application in hand and order that the proceedings culminating from the F.I.R. No,155/2008 stand quashed as continuance of such proceedings would be abuse of process of the Court and even if the entire evidence is brought on record, there is no likelihood of conviction of the applicant. The applicant is on bail, his bail bond stands cancelled and surety discharged. We simultaneously observe that the observations of this Court made in this order will not prejudice the trial of the other accused persons whose fate therein will be determined on their own merits.
10. ' The above are the reasons of our short order dated 14-4-2010.