JUDGMENT ORDER IMAM BUX BALOCH, J. Through this criminal miscellaneous application, the applicant has sought 4 quashment of proceedings of case pending in the Court of learned Special Judge '(C.N.S), Larkana; arisen out of Crime No.62 of 2008, Police Station Darri, Larkana registered under section 9(c) of Control of Narcotic Substances Act, 1997.
2. The brief facts of the case are that on 5-4-2008, at 1230 hours complainant S.I.P Muhammad Yasin Tagar, S.H.O. Police Station Darri, Larkana lodged report, alleging therein that the applicant/ accused was arrested in Crime No.60 of 2008, under section 5 of Gambling Act, and it is alleged that at the time of his arrest, charas in shape of pieces weighing 1020 grams was recovered from his possession.
3. After usual investigation the case was challaned in the Court of learned Special Judge (C.N.S), Larkana which is pending there. During trial the applicant moved an application under section 249- A, read with section 265-K, Cr.P.C. For his acquittal, according to him the charge is groundless, but the same has been dismissed by learned trial Court, hence present application has been filed before this Court.
4. Learned counsel for the applicant contended that case against the applicant is false and there is no probability of accused being convicted of any offence as much as, all the witnesses in their 161, Cr.P.C. Statements stated that co-accused, who were allegedly committing gambling in the Otaq of the applicant had thrown out thelhis and the applicant along with his father took out thelhis thrown by the escapees. Learned counsel further argue that if the evidence is recorded, it will end in acquittal of the applicant, as nothing was recovered from exclusive possession of the applicant by the police. He further argued that trial of the applicant shall be abuse of process of law. He further argued that learned trial Court has not considered the case in its true perspective, and on the basis of surmises and conjectures the application under section 249-A read with section 265-K, Cr.P.C. Was rejected without recording cogent reasons. The learned counsel has placed reliance on the following cases:--
(1) The State, through Additional Advocate-General, High Court of Sindh v. Raja Abdul Rehman's (2005 SCMR 1544),
(2) The State v. Asif Ali Zardari and others (1994 SCMR 798).
(3) Mst. Faiz Begum v. The State 1995 PCr.LJ 1601.
(4) Asif Ali Zardari v. The State (PLD 2008 Karachi 310).
5. Learned counsel further contended that this Court and Hon'ble Supreme Court time and again have held that if there is any abuse of process of law and if there is no probability of accused being convicted of any offence, the accused may be acquitted under section 249-A or 265-K, Cr.P.C.
6. On the other hand Mr. Naimatullah Bhurgri, learned State counsel contended that case has been challaned and the applicant was arrested from his Otaq and from his possession a thelhi was recovered, which contained narcotics "charas" and no evidence has been recorded yet.. He further contended that case pertains to year 2008, but the applicant is avoiding to proceed with the case and due to filing of instant application the trial Court at the request of applicant has not proceeded with the case. He further argued that it is settled law that the cases may be tried and prosecution may be given a chance to adduce evidence and after completion of evidence the trial Court should decide fate of the case after appreciating evidence available on record. Learned State counsel vehemently opposed quashment of proceedings pending in the trial Court.
7. Having heard learned counsel for applicant and learned State counsel; and with their assistance we have also perused the material available on record.
8. It appears that the applicant was arrested from his Otaq along with his father and both the father and son have produced two thelhis before the police and the police after arresting them prepared such mashirnama of arrest and recovery and weighed narcotics and sealed the same on spot. The case of the State through Advocate-General High Court v. Raja Abdul Rehman's (supra), relied upon by learned counsel for the applicant is against case of applicant. In the cited case the honourable Supreme Court observed that usually a criminal case should be allowed to be disposed of on merits after recording of prosecution evidence and provisions of sections 249-A, 265-K and 561-A, Cr.P.C. Should not normally be pressed into action for deciding the fate of a criminal case.
9. Case of Mst. Faiz Begum (supra) is also on different footings from the facts of case in hand. In the cited case there was a private complaint filed by complainant against Mst. Faiz Begum, as Mst. Faiz Begum was his second were and it was alleged that complainant used to visit his first were and during his absence petitioner's brother-in-law used to visit her house and demanded hand of her daughter from his first were, but the complainant refused and on the day of incident complainant was not at home; accused Jan Mohammad along with co-accused came to his house and enticed away Mst. Faiz Begum, Mst. Sughra and committed theft of household articles amounting to Rs.100,000. During investigation police found allegation of theft to be false and reported that in fact Mst. Faiz Begum had taken away the articles which were her personal property and case was disposed of and under these circumstances the Lahore High Court quashed the proceedings.
10. Case of the State v. Asif Ali Zardari (supra) is also on different footings. In the cited case allegations against Asif Ali Zardari were that he extended threats on telephone to Zafar Ali Zedi for giving loan to Hyder Jaffer: it was held by Hon'ble Supreme Court that there is no allegation of threatening or conspiracy against Asif Ali Zardari, hence petition for grant of leave was refused.
11. Case of Asif Ali Zardari v. The State (supra), is that he was involved in the murder of Mir Murtaza Bhutto and his companions, which had taken place near 70-Clifton and the name of Asif Ali Zardari was consequently mentioned in the challan sheet.
12. The Hon'ble Supreme Court in case of A. Habib Ahmed v. M.K.G Scott Christian and 5 others (PLD 1992 Supreme Court 353), has formed view that if prima facie the offence had been committed justice required that it should be enquired into and tried. If the accused are not as a result of the trial found guilty they have a right to be declared as "hononrably acquitted by a competent Court."
On the other hand if the evidence against the accused discloses a prima facie case then "justice Clearly requires that the trial should proceed according to law." The inherent jurisdiction of the High Court is not an alternative jurisdiction or additional jurisdiction. It is only in the interest of justice to redress grievances for which no other procedure is available. The power given by section 561-A, Cr.P.C., can certainly, not be so utilized as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute.
13.After considering law laid down by the Hon'ble apex Court, we have given our consideration to the contention raised by learned counsel for the applicant, but we are not persuaded to accept the contentions of learned counsel for applicant. The case is pending in the Court of competent jurisdiction and it is fore the trial Court to decide the case after evaluating and appraising evidence and the prosecution be given a chance to adduce its evidence. Frequent 'exercise of inherit jurisdiction contemplated under section 561-A, Cr.P.C. Is deprecated by the apex Court as laid down in the above cited case.
14. For the foregoing reasons we see no merits in the instant application, which is dismissed.
However, we direct learned trial Court to conclude the trial within three months.