' ABDUL RASOOL MEMON, J.---Through this Cr. Misc. Application, the applicant has sought quashment of the proceedings initiated against him pursuant to the F.I.R. No,594 of 2013 registered under section 381-A, P.P.C. At Police Station Shahrah-e-Faisal.
2. The background of the case is that on 4-9-2013 complainant Waseem Iqbal an owner of the Institute namely "Sirfaisal" Gulshan-eJamal at about 3.00 p.m. Parked his car bearing No,AYC-570, Engine No,PKS-13014888 and chasses No, RS-413 PK10014879 Model 2012 Suzuki Swift, out side his house. When at about 1600 hours he came out for going to his office but found his car missing. He immediately informed the police on 15 as well as car tracker, then he registered the F.I.R. Against unknown accused.
3. The Tracker Company got the car stopped and Ferozabad Police apprehended the applicant along with the car in-question, thereafter the car and applicant were brought at Police Station, Ferozabad, when the complainant came there he found the car and, applicant, who was his student. The investigation was taken up by Shahrah-e-Faisal police where case had been registered. During the course of investigation complainant filed an affidavit that though he had registered the F.I.R. About the theft of his car but when he came to know that it was taken away by his own student he did not want to further proceed the case and pardoned the applicant for his mistake committed by him unintentionally. On the basis of affidavit of complainant and after approval/sanction from concerned SSP a report under section 173, Cr.P.C. Was submitted before the concerned Magistrate for disposal of the case under 'A' Class, which was not accepted and the Magistrate not only took the cognizance of the case but also remanded the applicant/accused in jail and rejected his bail application. However, he was allowed bail by the learned IIIrd. Additional Sessions Judge, Karachi East.
4. Mr. Khawaja Naveed Ahmed, learned counsel for the applicant has mainly argued that the complainant has exonerated the applicant and no ingredients of section 411, P.P.C. Is attracted in this case, as such, the Magistrate has erroneously taken cognizance in this case, which is nothing but abuse of process of law.
5. Learned D.P.G. On behalf of the State has opposed this application on the ground that applicant has directly approached this court without availing the remedy before the trial Court.
6. I have given my due consideration to the arguments advanced at the bar and have gone through the relevant case papers. Of course, the offence under which F.I.R. Was registered or under section 411, P.P.C. For which Magistrate has taken the cognizance is not compoundable and even under the law police is not competent to accept compromise in the case during the angst of investigation. In the case in hand, section 411, P.P.C. Is not attracted from the facts of the case, as the applicant is alleged to have stolen the car by himself This section provides that whoever dishonestly receives or retains any stolen property, knowingly or having reason to believe the same to be stolen property, as such, this section is not applicable against the principal offenders or such as thief or mis-appropriator, but against the class of persons who trade in such stolen articles and are commonly described as "receivers" hence a thief or mis-appropriator is outside the scope of this section. If any law is needed on this point, reference may be made to the case reported as AIR 1972 SC-635.
7. So far the theft of car in-question is concerned, admittedly the applicant/accused is not nominated in the F.I.R. And nobody else seen him while committing the theft of the said car in- question. However, according to the police papers, the applicant immediately after missing of the car was found to be in its possession, as such, presumption would be that he stolen it but applicant claimed that he took it for joyride and complainant not only before the police and trial court but before this court also stated that he pardoned the applicant's mistake and he does not say that if his car had been stolen by the applicant. No material is collected from which mens rea of the applicant for commission of the offence could be gathered.
8.
For the aforesaid reasons, I am of the firm view that even if the entire evidence is brought on record, the applicant would not be convicted for the offence with which he has alleged to have been charged. In such a situation continuance of criminal trial of the applicant would be abuse of process of the court. This Court in exercise of its inherent jurisdiction under section 561-A, Cr.P.C.
Has ample powers to quash the proceedings if it comes to the conclusion that even if the entire evidence is brought on record there is no likelihood that, the applicant would be convicted irrespective of the fact that the applicant has not approached the trial court under section 249-A, Cr.P.C. I, therefore, allow this Cr. Misc: Application and quash the proceedings pending against the applicant before the trial Court in pursuance to F.I.R. No,594 of 2013 lodged by the complainant at Police Station Sharah-e-Faisal.
9. These are the reasons of my short order dated 14-10-2013.