' MUHAMMAD TASNIM, J.---Applicants Syed Shamim Ahmed son of Syed Fariduddin Hassan and Farooque Anwer Chaudary son of Chaudary Fazl-e-Haque are facing trial iti F.I.R. No,15 of 1996 registered under sections 409/468/471/34, P.P.C. Read with section 5(2) of Act H of PCA 1947 at PS FIA, CC, Karachi.
2. Facts leading to the present controversy are that applicant No,1 Shamim Ahmed was the Finance Manager in KPT who retired from service on 1-5-2001 and applicant No,2 Farooq Anwar Chaudary was serving as General Manager (P&D), Karachi Port Trust, and also retired on 13-7-1999. It appears that on 16-12-1996 the aforesaid F.I.R. Was registered. Both the applicants were cited as prosecution witnesses and their statements under section 161, Cr.P.C. Were recorded. Interim challan was submitted in the matter on 2-1-1997 wherein present applicants were shown as prosecution witnesses. The interim challan was subsequently converted into final challan and charge was framed against accused Shamsher Khan and Rasool Bux Rahu. Thereafter, P.W. Zaki Ahmed was examined who did not implicate the present applicants dur.Ing his deposition. It further appears from the record that on 8-12-2001 supplementary challan was submitted wherein both the applicants were cited as accused persons along with one Jameel Ahmed Shaikh. It further appears that charge was reframed on 9-9-2002 whereafter three prosecution witnesses, namely, (1)
Muhammad Zaki, (2) Shaikh Abdul Malik and (3) Muhammad Ahmed were also examined but none of the prosecution witnesses mentioned hereinabove has uttered a word against the present applicants implicating them with the commission of offence. It further appears that co-accused Jameel Ahmed filed Criminal Miscellaneous Application No,192 of 2006 before this Court and such criminal miscellaneous application was granted by a learned Single Judge of this Court per order dated 24-3-2008 and proceedings against Jameel Ahmed before the learned trial Court were quashed. From the record it further appears that present applicants also filed an application under section 249-A,Cr.P.C. Before the learned trial Court. However, such application remained pending before the learned trial Court. In the meanwhile present criminal miscellaneous application was filed and vide order dated 3-2-2011 learned trial Court was directed to dispose of application under section 249-A, Cr.P.C. Pending before it within fifteen days of the passing of order and report compliance. However, this case was kept pending. It further appears that thereafter application under section 249-A, Cr.P.C. Was heard by the learned trial Court and was dismissed per order dated 23-2-2011. Against the aforesaid order present criminal miscellaneous application has been filed.
3. Learned counsel for the applicants has submitted that trial is Pending since last more than eleven years and none of the prosecution witness has uttered a word against the present applicants implicating the applicants with the commission of offence. He further says that, even otherwise, no role whatsoever has been assigned to the present applicants. Learned counsel for the applicants says that name of applicants did not appear in the F.I.R. He says that initially they were cited as prosecution witnesses and in the interim challan they were also shown as prosecution witnesses. The applicants are retired persons and are facing agony of criminal trial unnecessarily which is sheer abuse of process of Court. Learned counsel for the applicants says that powers contained in provisions of section 561-A, Cr.P.C. Be invoked and proceedings before the learned trial Court against the applicants be quashed. He further submitted that case of Jameel Ahmed was on the same footings and his criminal miscellaneous application had already been allowed per order dated 24-3-2008 and proceedings against him before the learned trial Court were quashed. Learned counsel further says that since applicants and Jameel Ahmed are similarly placed proceedings against the present applicants may also be quashed. In support of his contention learned counsel for the applicant has placed reliance on the cases of (1) MUHAMMAD KHALID MUKHTAR v. THE STATE (PLD 1997 SC 275), (2) MUZAFFAR IQBAL v. THE STATE (1993 PCr.LJ 125),
(3) MEHBOOB ALAM AND OTHERS v. THE STATE (PLD 1996 Karachi 144) and (4) THE STATE v. ASIF ALI ZARDARI AND ANOTHER (1994 SCMR 798).
4. Conversely, learned Standing Counsel has formally opposed the grant of this criminal miscellaneous application as according to him heavy amount has been embezzled by the employees of KPT which has caused financial' loss to the government exchequer. He was asked to point out any piece of evidence which connects the present applicants with the commission of offence or any material available with the prosecution which connects the present applicants with the commission of offence. Learned Standing Counsel was unable to point any material or any evidence available on record against the present applicants. Learned Standing Counsel agrees that co-accused Jameel Ahmed was similarly placed and his criminal miscellaneous application was already granted as above and State has not filed any proceeding against the order passed by this Court in Criminal Miscellaneous A. No,192, of 2006 dated 24-3-2008.
5. I have heard the learned counsel for the parties and have perused the record and the case-law cited at the bar.
6. From the perusal of record it is manifestly clear that names of applicants are not appearing in the F.I.R. It is also apparent on record that initially' both the applicants were cited, as prosecution witnesses. It is also an admitted position that in the interim challan the applicants were shown as prosecution witnesses and such challan was converted into final challan. Based on that, charge was framed against two accused persons and one prosecution witness was examined but such witness did not say a word against the present applicants. Subsequently, when the interim challan was filed present applicants were implicated thereafter charge was reframed and three prosecution witnesses as above were examined but none of the prosecution witness has said anything against the present applicants. Even otherwise, learned Standing Counsel could not point out any material available with the prosecution which connects the present applicants with the commission of offence.
7. In the case of MUHAMMAD KHALID MUKHTAR (Supra) the Hon'ble Supreme Court of Pakistan while examining the provisions of section 561-A, Cr.P.C. Has dealt with such issue in the following words:-- "As observed in the case of Asif Ali Zardari (1994 SCMR 798) the powers under section 561-A, Cr:P.C.
Can be exercised to prevent abuse of the process of any Court or to secure the ends of justice.
Such powers cannot be exercised in mechanically or in every case where there is allegation of false implication or of the evidence being false. Exercise of such powers cannot further the ends of justice, if an exercise is undertaken at pretrial stage to determine whether the prosecution evidence likely to come on record is true or false. In the case of Raja Haq Nawaz v. Muhammad Afzal and others (PLD 1967 SC 354), it was held that quashment of proceedings at an early stage gives an unfortunate impression of stifling of criminal prosecutions, by exercise of an extraordinary power which is given for the dispensation of complete justice, in the forms provided by law. Similar view was taken in the case of Gian Chand v. State (1968 SCMR 380) where it was observed that determination of the guilt or innocence of an accused, depends on totality of facts and circumstances revealed during the trial, and when such a stage had not been reached, the application for quashment of the proceedings in the trial Court, was rightly rejected by the High Court."
8. In the case of MUZAFFAR IQBAL a learned Single Judge of this Court, as he then was, (who subsequently elevated to the Hon'ble Supreme Court of Pakistan and rose upto the position of Hon'ble Chief Justice of Pakistan, while dealing with the provisions of section 561-A, Cr.P.C. Has dealt with such provision in the following words:-- "The power under section 561-A cannot he invoked in respect of matters which are directly covered by any specific provision of Cr. P. C. While exercising inherent power, this Court cannot hold an inquiry as to whether the evidence available on record is reliable or not. This function is to be performed by the trial Court. The question of reliability or otherwise of a witness cannot be agitated, when inherent jurisdiction of this Court is invoked, and ordinarily this Court will not interfere at an interlocutory stage of criminal proceedings, unless there are exceptional circumstances to justify for such action which in this case do not exist."
9. In the case of MEHBOOB ALAM AND OTHERS the same learned Judge who passed the above order once again set the criterion for exercise of power under section 561-A, Cr.P.C. By this Court in the following words:- "It is true that under section 561-A, Cr.P.0 this Court has inherent powers to make such orders as may be necessary to give effect to any order or to prevent abuse of process of any Court or otherwise to secure the ends of justice. This power being extraordinary in nature, as laid down in various cases, is to be exercised sparingly. The criterion for the exercise of the power under this section is that the injustice complained by the applicant shall be, clear, grave in nature, and tangible. In case another remedy is available, normally inherent jurisdiction is not to be invoked.
When the allegations levelled against accused disclose an offence it is for the trial Court to record its verdict after weighing the evidence as to whether the offence is made out or not. The appreciation of evidence primarily is the function of the trial Court, and the plea of insufficiency or creditability of evidence cannot be a ground for interference under section 561-A, Cr. P. C. In the instant case, the main point is if the applicants are citizens of Pakistan or foreigners and this being a disputed fact, it can only be decided after the evidence is recorded. More production of National Identity Cards, whose 'authenticity has been seriously challenged by the respondent, is not enough to hold that the contents of tested cards are correct. The applicants without exhausting their remedy before the Trial Court have rushed to this Court, which is not proper. The case has not yet proceeded before the learned Trial Magistrate."
10. The other aspect of the matter is that the co-accused who had filed earlier Criminal Miscellaneous A. No,192 of 2006 which was granted by this Court per order dated 24-3-2008 in the following words:-- "..Having considered record placed in the file, arguments of learned Advocate for the Applicant I find that object under section 561-A, Cr.P.C. Is to do the real justice and to prevent abuse of process of Court, and to redress the grievance of individual. Consequently application is allowed and the proceedings pending in the Court of the Special Judge, Central-I, Karachi, being Special Case No,1 of 1997 vide F.I.R No,15 of 1996, under sections 409, 468, 471, 34, P.P. C. Read with section 5(2) of Act-II of P.C.A. 1947, Police Station, FIA Crime-I, Karachi are hereby quashed to the extent of the Applicant only."
11. Following the dicta laid down in the above quoted judgments of the Superior Courts and the facts and circumstances of the case that proceedings against co-accused Jameel Ahmed have already been quashed I have come to the conclusion that there is no evidence available with the prosecution against the applicants. It is sheer abuse of process of law to allow the applicants to face the agony of criminal trial in view of the fact that eleven years have already elapsed and even prosecution has not examined more than five witnesses and nothing against the applicants was brought on record. In the circumstances this criminal miscellaneous application is allowed and consequently proceedings pending against the applicants before the Court of Special Judge Anti- Corruption and Amigration (Central-I), Karachi, arising out from F.I.R. No:15 of 1996 are hereby quashed against the applicants Syed Shamim Ahmed and Farooque Anwer Chaudary.
12. In the above terms this criminal miscellaneous application stands disposed of along with the pending application.