MUHAMMAD ALI MAZHAR, J.---This criminal miscellaneous application has been preferred against the order, passed by learned Special Judge CNS, Naushehro Feroze on 20-12-2010 in Special Case No,10 of 2003, whereby he dismissed the application moved by the applicant under section 249-A, Cr.P.C.
2. Precisely, facts leading to this application appear to be that on 29-8-2003, Excise Inspector, Sukkur lodged F.I.R. No,9 of 2003 against the accused persons, namely, Muhammad Saeed, Tahir Hussain and Muhammad Ismail under section 9-C of Control of Narcotic Substances Act, 1997 and they were arrested accordingly The complainant in the F.I.R. Alleged that during checking of vehicles they intercepted one vehicle coming from Punjab side which was stopped. Number of vehicle was LSC-3689, in which two containers were loaded. On enquiry, driver disclosed that marbles are lying in one container and at the backside of container, material of American Embassy lying. When they opened the containers, complainant saw marble tiles along with 150 small drums and-when drums were opened, hashish was found in 6000 Kgs. It was further stated that all the arrested persons were interrogated and their statements were recorded by Excise Inspector in which they named other accused persons, namely, Asghar Ali. And Sardar Amjad Ali Khan (the present applicant). The Challan was submitted on 8-9-2003 in which name of applicant was kept in Column No,2 with red ink as absconder.
3. Earlier, another Criminal Miscellaneous Application No, D-319 of 2009 was filed by the applicant in this Court, against the order dismissing the application moved by the applicant under section 249- A, Cr.P.C, which was disposed of by consent vide order dated 9-3-2010 and the impugned order was set aside and matter was remanded to the trial court with the direction to decide application in the light of evidence of prosecution witnesses within a period of 30 days after providing applicant and prosecution an opportunity of being heard. The grievance of the applicant is that after remanding the matter by this court, trial court has again dismissed the application vide order dated 20-12-2010, which has now been assailed in the present proceedings.
4. The learned counsel for the applicant argued that charge is groundless and there is no probability of the accused being convicted of any offence. It was further averred that learned trial court failed to strictly comply with the remand order of this court passed on 9-3-2010. The applicant was implicated in the case on the basis of statement of other co-accused persons who were arrested on 29-8-2003. Learned trial Court has failed to consider that the applicant was implicated in the case due to extra judicial confession which was made by co-accused while they were in custody which is absolutely inadmissible under the provisions of Qanun-e-Shahadat Order, 1984 and it is also a weakest type of evidence on the basis of which no order for conviction can be passed.
5. He further argued that the trial court has ignored that except the statement of co-accused there is no evidence available on record to connect or link the present applicant with the alleged offence.
The applicant was arrested in this case on 7-1-2005 and remained in jail for more than 3-1/2 years, thereafter he was granted bail by the Hon'ble Supreme Court of Pakistan on 6-11-2008 and since then he is regularly attending the trial Court and facing trial in spite of his Hepatitis-C ailment. It was further argued that the applicant was involved in this case with mala fide intention of the excise police, who was only sub-agent of Kiran Cargo and was bound to complete the documents but the excise police did not enquire from the custom authorities in respect of actual facts. No customs official was involved or interrogated in this case who twice checked the consignment and declared free from any narcotics substance. Co-accused Asghar Ali was also malafidely shown agent of Kiran Cargo service as he was the Manager of Tracon Service (Pvt.) Ltd., which has been held responsible by the customs authorities during inquiry conducted by the Collector of Customs.
Learned trial Court examined P.W. Muhammad Ameen Malik who claimed to be mashir of this case and subsequently became as Investigating Officer and later on conducted investigation of this case. Objection was raised in the trial Court but the learned trial Court ignored this objection and observed that this will be decided at the time of final arguments. Learned counsel further argued that same witness appeared and produced Photostat copy of certain documents without compliance of requirement of. Article 76 of Qanun-e-Shahadat Order. Finally, he argued that proceedings are liable to be quashed against the applicant as there is no cogent .Evidence available on record to connect or link the present applicant with the case made out by the prosecution. In support of his arguments, learned counsel relied upon the following case-law:-- "2006 SCM R 231 (Sajid Mutmaz v. Basharat). In this case Hon'ble Supreme Court discussed the provision of section 164, Cr.P.C. And held that Extra judicial confession must be received with utmost caution. Court before acting upon a retracted extrajudicial confession must inquire into all material points and surrounding circumstances to satisfy itself fully that the confession cannot but be true.
As an extra judicial confession is not a direct evidence, it must be corroborated in material particulars before being made the basis of conviction.. Status of the person before whom the extra-judicial confession is made must be kept in view. Joint confession cannot be used against either of accused. Extra judicial confession is always a weak type of evidence which can easily be procured, whenever direct evidence is not available. Exercise of utmost care and caution has always been the rule prescribed by the Supreme Court in such cases. Motivating factors for a person guilty of offence entailing capital punishment to make a confession generally are (i) to boast off, (ii) to ventilate the suffocating conscience and (iii) to seek help when actually trapped by investigation.
2009 SCM R 141 ( Muhammad Aslam (Amir Aslam) v. DPO, Rawalpindi). In this case Hon'ble Supreme Court held that Courts have to safeguard the fundamental rights of every citizens and to protect the life and liberty from illegal, unauthorized and mala fide acts of omission or commission by an authority or person. Where the liberty of a citizen is involved, the action initiated by the police when found to be mala fide the Court should not hesitate to step in and grant relief to the citizen.
While considering section 561-A, Cr.P.C, the Hon' ble Supreme Court has further held that framing of charge in the case does not debar burying of the proceedings by way of quashment. No invariable rule of law existed in this regard and it depended on the facts of each case whether to allow the proceedings to continue or to nip the same in the bud.
2000 SCM R 122 (Miraj Khan V. Gul Ahmed). In this case Hon'ble Supreme Court has considered the provisions of sections 561-A, 249-A and 265-K, Cr.P.C. And held that High Court in exceptional cases can exercise jurisdiction under section 561-A, Cr.P.C. Without waiting for trial court to pass an order under sections 249-A or 265-K, Cr.P.C. If the facts of the case so warrant. Main consideration to be kept in view would be, whether the continuance of the 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, then it would amount to abuse of process of law to allow the prosecution to continue with the trial".
6. On the other hand, the learned APG argued that in fact entire evidence has been recorded. The statement of accused under section 342, Cr.P.C. Could not be recorded due to pendency of application moved by the applicant under section 249-A, Cr.P.C. He further argued that whether applicant is innocent or guilty that can easily be decided by the trial court as entire evidence has already been recorded. If no evidence is available or his involvement is proved to be false, he will be naturally acquitted but at present there is no cogent justification to seek the quashment of proceedings. He further argued that from the impugned order it is clear that sufficient incriminating material is available against the applicant and all the points raised by applicant's counsel can be argued in the trial court at the time of final arguments. In support of his arguments, he relied upon following dictums:-- "2005 SCM R 1544 (The State v. Raja Abdul Rehruan). In this case, it was held that there can be no dispute that an application under section 249-A, Cr.P.C. Can be filed, taken up for hearing and decided at any time or stage of the proceedings and the words "at any stage" denote that the application under section 249-A, Cr.P.C. Can be filed even before prosecution evidence had been recorded or while the exercise of recording of evidence is going or when the exercise is over. It is, however, to be noted that though there is no bar for an accused person to file application under section 249-A, Cr.P.C. At any stage of the proceedings of the case yet the facts and circumstances of the prosecution case will have to be kept in mind and considered in deciding the viability or feasibility of filing an application at any particular stage. The special or peculiar facts and circumstances of a prosecution case may not warrant filing of, an application at a stage when the entire prosecution evidence had been recorded and the case was fixed for recording of statement of the accused under section 342, Cr.P.C. This Court in the cases of Bashir Ahnaad v. Zafar-ul-Islam PLD 2004 SC 298 and Muhammad Sharif v. The State and another PLD 1999 SC 1063 (supra) did not approve decision of criminal cases on an application under section 249-A, Cr.P.C. Or such allied or similar provisions of law; namely, section 265-K, Cr.P.C. And observed that usually a criminal case should be allowed to be disposed of on merits after recording of the prosecution evidence, statement of the accused under section 342, Cr.P.C., recording of statement of accused under section 340(2), Cr.P.C. If so desired by the accused persons and hearing the arguments of the counsel of the parties and that the provisions of section 249-A, section 265-K and section 561A of the Cr.P.C. Should not normally be pressed into action for decision of fate of a criminal case.
PLD 2004 SC 298 (Bashir Ahmad v. Zafar-ul-Islam) in which Hon'ble Supreme Court held that provision of S.561-A, Cr .P .C. Cannot be used to override express provisions of law to offer just another remedy where a remedy already exists or to circumvent the normal course of law.
Jurisdiction under S.561-A, Cr .P .C. Is an extraordinary one preserved only for extraordinary situations which power must be exercised sparingly with utmost caution only in exceptional cases and not as a matter of routine. The purpose of adding this provision to the Code was to recognize and reiterate the inherent powers possessed by a High Court to pass such orders as would enable it to do justice to all concerned. The object was to meet the lacunae existing in the Code and to cater for situations which could not be foreseen by the Legislature and for which no specific provision or remedy had been provided. Section 561-A was never meant or intended to offer an additiOnal or an alternate remedy".
7. We have anxiously attended to the submissions. The thrust of the arguments put forward by learned counsel for the applicant is that the applicant is an innocent person, therefore, proceedings should be quashed and in spite of recording evidence by the trial court, there is nothing available against the applicant to connect, him with the commission of any offence.
Learned counsel further pointed out some irregularities and according to him, he raised objections in the trial Court which were not considered at the relevant time. In the peculiar circumstances of the case when entire evidence has been concluded and matter is only pending for recording statement of accused persons under section 342, Cr.P.C, therefore, at this stage it would not be appropriate by this court to embark upon or to consider the evidence when the matter is likely to be concluded soon by appropriate forum. All such arguments or pleas raised in the application can be easily taken and argued before the trial court whether any evidence is available against the applicant or not. This function is to be exercised by the trial court and naturally if no evidence is available on record against the applicant trial court will pass an appropriate order after examining and appreciating entire evidence. This is a case of 6000 Kgs. Hashish which cannot be ignored simply and the case of prosecution cannot be strangulated or stifled at this stage. Trial court in the impugned order has provided gist of evidence and names of P.W(s). It is further mentioned in the impugned order that 6000 Kgs. Hashish was recovered from the consignment which was dispatched by the applicant after submitting undertaking with the Customs Authorities when such consignment was being cleared from the Dry Port by showing the marble which consignment was to be exported by Osama Enterprises Rawalpindi through Kiran Cargo but instead of marble, ptohibited material was recovered. The learned trial Court further observed that all the P.W(s) have been examined and matter is fixed' for recording of statement of accused which was not recorded for the reason that learned counsel for the applicant requested that his application under section 249-A, Cr.P.C. Be heard and decided first and thereafter statement of accused persons may be recorded.
8. No doubt, application under section 249-A, Cr.P.C. Can be moved at any stage of the case and the court may acquit any accused person if it considers that the charge is groundless or that there is no probability of accused being convicted of any offence. Party can move for acquittal at any stage of proceedings and there is no legal bar or requirement that the application for acquittal can only be moved before the trial Court after recording of evidence of witnesses. However, the criteria for exercising the powers by this court under section 561-A, Cr.P.C. Is that injustice complained of by the applicant must be clear, grave in nature and tangible and if another remedy is available then inherent jurisdiction is not to be invoked. We are .Profusely fortified by the dictums of Hon'ble Supreme Court supra, in which, it was held that there is no bar to file an application under section 249-A, Cr.11C. At any stage of the proceedings of the case, yet facts and circumstances of the prosecution case will have to be kept in mind and considered in deciding the validity or feasibility of filing application at any particular stage. Special or peculiar facts and circumstances of the case may not warrant filing of application at a stage when the entire prosecution evidence had been recorded and the case fixed for recording of statement of the accused under section 342, Cr.P.C. Using the powers under section 561-A, Cr.P.C. To determine the fate of 'a criminal case is thus a serious departure from the normal course and needless to say that any deviation from the normal, path is always pregnant with risk of being led astray. Such a deviation can, therefore, never be ordinarily advisable. Extraordinary circumstances must, always be shown to exist before a choice could be made to abandon the regular course and instead to follow an exceptional route.
Mere claim of innocence by an accused person could never be considered sufficient to justify such a departure because if this was so permitted then every accused person would opt to stifle the prosecution and to have his guilt or innocence determined under section 561-A of the Cr.P.C. The result would be decision of criminal trials in a summary and a cursory manner rendering the trials as a superfluous activity, and the trial Courts as a surplusage. This never was and could never have been the intention of the law maker in adding section 561-A to the Code. Reference can be made to C PLD 2004 SC 298.
9. At this juncture, it would be advantageous to quote the judgment reported.In PLD 1992 SC 353 in which it was held that if prima..Facie the offence has 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 honourably 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.
10. The case-law relied upon by learned counsel for the applicant are distinguishable to the facts and circumstances of the present case. In a case reported in 2006 SCM R 231, question of confessional statement made under section 164, Cr.P.C. Was discussed and it was held that court before acting upon retracted extra judicial confession must inquire into all material points and surrounding circumstances. In the case in hand, entire evidence has been recorded and at the time of deciding the case, trial court will look into the aspect whether extra judicial confession in this case has evidentiary value or not. In another case-law reported in 2009 SCM R 141, the Hon'ble Supreme Court dilated upon Article 9 of the Constitution. There is no cavil to the proposition that courts have to safeguard fundamental rights of every citizen and to protect life and liberty from illegal, unauthorized and mala fide acts of omission by a party or person but in the very case while discussing applicability of section 561-A, Cr.P.C, the Hon'ble Supreme Court itself held that framing of charge by the trial court does not debar burying of the proceedings by way of quashment and no invariable rule of law existed in this court and it depended on the facts of each case whether to allow proceedings to continue or to nip the same in the bud. This judgment hardly applies to the facts and circumstances of this case in which entire evidence has been recorded and only statement of accused is to be recorded. The third case reported in 2000 SCM R 122, is not applicable. Point in consideration before the apex court was whether application for quashment of proceedings can' be entertained directly under section 561-A, Cr.P.C. Without directing a person to first approach to trial court under section 249-A or 265-K, Cr.P.C. No such question is involved in this case.
11. The upshot of the above discussion is that nothing is available on record to safely conclude that the trial against the applicant is a futile exercise or ex facie without jurisdiction or abuse of process of court. Consequently, this criminal miscellaneous application is dismissed in limine along with listed application. However, the trial court is directed to conclude the trial and decide the case preferably within a period of two months.