' SYED MUHAMMAD FAROOQ SHAH, J.---Through the application under section 265-K, Cr.P.C. The applicant has sought acquittal in case Came No,100 of 2011, under sections 4/5 of the . Explosive Substances Act, 1908, registered against him at P.S. CID, Sindh, Karachi, mainly on the ground of non-obtaining the permission as required under section 7 of the Explosive Substances Act, 1908 from the Provisional Government, which is mandatory. By precise impugned order, passed on dated 17-11-2012, the learned 4th Additional Sessions Judge, Karachi (South) has rejected the said application by observing that necessary permission has not been obtained prior to the framing of charge but since no evidence has been recorded after framing of charge, therefore, necessary permission from the Home Department, Government of Sindh can be obtained and thereafter an amended charge be framed after receipt of required permission.
2. The applicant assailed the aforementioned impugned order, through the captioned application, filed under. Section 561-A, Cr.P.C., on the ground which was earlier raised before the trial Court that there is clear violation of section 7 of the Explosive Substances Act 1908, as according to such section, no Court shall proceed with the trial of any person, for an offence against this Act, except with the consent of Provincial Government. Admittedly, prosecution has submitted the challan without necessary sanction of the Provincial Government. It is further averred that more than thirty
(30) months period has been lapsed but the prosecution has not been able to obtain the necessary required sanction from the Provincial Government. Learned Counsel for the applicant/accused submitted that the impugned order is not sustainable in law and this Court to give effect to any order of subordinate Courts to prevent the abuse of process or to secure the ends of justice, may exercise. Inherent power of quashment of proceedings under section 561-A, Cr.P.C., as the sanction under section 7 of the Explosive Substances Act 1908 is mandatory for the prosecution of applicant and in absence of such sanction, the trial of the applicant before the trial Court is a futile exercise. To support his contention, learned Counsel placed his reliance on the case of Rafiq-ul-Islam 1998 PC'r.LJ 1262 (Karachi), Syed Mukhtiar Hussain v. The State (1984 PCr.LJ 2181), Irfan Ali alias Ghulam Raza v. The State (2011 YLR 522).
3. Story of the prosecution case in nutshell is that the applicant was already arrested in crime No, 96/2011 under sections 353/324/34, P.P.C. And during his arrest, on his pointation one hand- grenade was recovered from a populated area, in presence of police officials and the case was registered against him, under sections 4/5, Explosive Substances Act viz. F.I.R. No, 100/2011 on 21-3- 2011 by CID, Sindh Police. On completion of usual legal formalities, the applicant was charge- sheeted.
4. Arguments advanced by both sides have been considered and record has also been perused in light of the case-law, relied upon by the learned Counsel for the parties.
5. The main points for consideration in this case are that as to whether the applicant could be said to have been found in possession of hand-grenade on the said date, on the basis of statements of police officials and that (ii) the proceedings in absence of requisite sanction of Provincial Government as required under section 7 of Explosive Substances Act vitiate the trial or not? Need arises to reproduce section 7 of the Explosive Substances Act, which runs as under:-- Section 7 ' Restrictions on trial of offence "No court shall proceed to the trial of any person for an offence against this Act except with the consent of the Provincial Government".
It is an admitted position that sanction for prosecution for holding trial under section 7 of the Act is mandatory and sanction for prosecution of accused under section 5 of the Act is a condition precedent and therefore A the trial proceedings cannot be concluded in express violation of prohibitory and mandatory provision of law and hence vitiate trial.
6. It is an admitted position that since last about thirty (30) months period, the prosecution could not succeed to obtain necessary sanction of the Provincial Government as required in the aforementioned provision of law. This Court vide order dated 13-9-2013 and 29-10-2013, has also directed the prosecutors to produce necessary sanction/consent of the Provincial Government, as required under section 7 of the Explosive Substances Act, 1908 but in spite of repeated notices neither Home Secretary, Government of Sindh, nor Investigating Officer produced in Court, the sanction/consent, if any, as required under the law. Proceedings of trial without obtaining necessary sanction depicts that the prosecution is bent upon to proceed with the trial in violation of necessary provision of statutes. In the case of M. Rafiq-ul-Islam v. The State (1998 PCr.LJ 1262) by referring the case of Syed Mukhtar Hussain v. The State (1984 PCr.LJ 2181), the Division Bench of this Court set aside the conviction and sentence for want of proper sanction/permission, as required by section 7 of the Explosive Substances Act. In another cited case of Irfan Ali v. The State (2011 YLR 522), their Lordships' observed in para 24 of the judgment as under:-- "The charge in this case was framed on 20-10-2005 under 120 heads and first head of the same shows that the appellant was charged under section 3 of Explosive Substances Act, 1908. The same Statute contains section. 7, which is reproduced below for convenience:-- "7. Restrictions on trial of offence.
' No Court shall proceed to the trial of any person for an offence against this Act except with the consent of the Provincial Government. Outrightly we have asked the learned counsel for the Complainant as well as the learned Deputy Prosecutor-General as to whether in this case, sanction or conducting the trial under Explosive Substances Act, 1908 as postulated by section 7 was granted or available in the record, but they were unable to point out or provided any sanction letter in the Paper Book or otherwise from the record. We are reminded of a maxim communi observatia non est recedendum" Where a thing was provided to be done in a particular manner, it had to be done in that manner and if not so done, the same would not be lawful. Therefore, we see that on this score alone, the trial stands vitiated. But in view of sensitivity of the matter, we are now discussing the merits of this case".
7. It is not out of context to mention here that section 265-K, Cr.P.C. Is enabling section, empowering trial Court to acquit the accused at any stage of the case, if, after hearing the prosecution and the accused, it considers that there is no probability of his conviction, after recording reasons thereof.
For the sake of convenience section 265-K, Cr.P.C. Is reproduced as fellows:-- Power of Court to acquit accused at any stage.
"Nothing in this Chapter shall be deemed to prevent a Court from acquitting an accused at any stage of the case; if after hearing the prosecutor and the accused and, for reasons to be recorded, it considers that there is no probability of the accused being convicted of any offence."
8. Mere reading of section 265-K reflects that the trial Court has ample power to acquit the accused, even if the witnesses are not examined. It need not to reiterate that the trial Court may not allow the prosecution to fill up the lacuna, left by them, deliberately and intentionally, as allowed by the trial Court in the impugned order, which is not warranted in-law, particularly in cited case-laws, the conviction and punishment awarded to the accused was set aside and they were acquitted by this Court mainly due -to non-compliance of mandatory provision of law, as postulates in section 7 of Explosive Substances Mt, 1908.
9. Suffice is to say that the provision of section 265-K, Cr.P.C. Is meant to prevent the rigours of a prolong trial, when it is apparent from the record, that there is no probability of the accused being convicted of the offence charged with, the trial Court can exercise judicial discretion in a fit and appropriate case but such power not intended to be exercised arbitrarily. When the court reaches at the conclusion that it would be sheer futile exercise to linger on the case which shall not culminate on conviction, the court may exercise such powers as there is no clog of time on exercise of inherent powers by the Court, which could be used at any stage.
10. Learned trial Judge has seriously been erred, to accord permission to the prosecution to obtain necessary sanction as required under section 7 of the Explosive Substances Act and made observation that an amended charge shall be framed after the receipt of required permission, which observation is against the criminal justice system. Even otherwise, if sanction obtained after framing of charge i,e, after 2-1/2 years, may not be met with the requirement of law. It need not tore-emphasize that senior Judicial Officer should restrain himself to make such type of observation. However, from perusal of record, it appears that the applicant was arrested in this case on 21-3-2011 and till passing the impugned order on 17-11-2012, necessary sanction was not available and thereafter this Court has directed the Prosecution through Provincial Government and Investigating Officer to produce the necessary sanction, if found available with them but they failed to do so, which depicts non-availability of such sanction, which is a clear violation of mandatory provision of law.
11. It need not to reiterate that section 7 of the said Act put embargo and restrictions on the Courts to proceed with the trial without sanction of the Provincial Government, therefore, the contentions raised by the learned Prosecutor are not supported by law. The case-law viz. PLD 2004 SC 298 (Basheer Ahmed v. Zafar Islam) and 2005 SCM R 1544 (The State v. Raja Abdul Rehman) are not attracting in the facts and circumstances of the present case. In Criminal cases, the case-law in one case is hardly helpful in another case as each case has its own peculiar facts. The instant case certainly shall not culminate on conviction of the accused/applicant, even after recording the depositions of all four police officials/P.Ws., as there is clear violation of mandatory provision of law.
12. In view of forgoing reasons, to prevent the abuse of process of trial Court, the ' impugned order being not sustainable in law is set aside and proceedings against the applicant pending in the trial Court are quashed.
' The captioned application is decided in the manner indicated above.