These two connected petitions Nos. 236 and 237 of 1980 have been filed by the petitioners Ghulam Sarwar son of Muhammad Amin and Tooti Gul son of Asadullah under section 561-A. Cr. P. C.
Respectively for quashment of proceedings pending against them in the Court of A. C. M. Hosri, at Hyderabad for contravention of section 5 of the Explosive Substances Act, 1908. Since the two petitions involve common facts and law they are being disposed of by this common judgment.
2. Briefly stated the facts are that the two petitioners are labour Jamadars working on stone quarry of Nihal Shah Pahari. Ganjo Takar, Hyderabad, having taken on lease by M/s. Sherwani Stone Supply Agency mining Contractor of Hyderabad, It's proprietor Muhammad Irtaza Khan holds licence for possessing gun-powder, other explosives and detonators at the licensed premises for the purpose of using the same for excavating stones to be utilized in construction of roads.
3. On receiving spy information Painda Khan A. S. I. Of Hosri Police Station accompanied by Foot Constable Riaz Ahmed, one Muhammad son of Urs Machhi and Mr. Ahmed Fahim Mughal, Additional City Magistrate, Hosri reached the dera of petitioner Ghulam Sarwar on 15th Mac. 1979 at about 5-30 p.m and conducted its search under the supervision of Additional City Magistrate. He secured explosive substance from inside the dera. He prepared mashirnama of recovery in presence of mashirs foot constable Riaz Ahmed and Muhammad Machhi. He signed the mashirnama and so also the two mashirs. He arrested the petitioner Ghulam Sarwar. Thereafter at about 5.45 p.m. On the same date he accompanied by the same mashirs and the A. C. M reached the dera of petitioner Tooti Gui and conducted it's search in presence of the same mashirs above mentioned and the A. C. M. He secured from inside the dera explosive substance and prepared the mashirnama of its recovery in presence of the same mashirs and the A. C. M. He signed the mashirnama and so also the two mashirs. The deras of the petitioners were situated on Nihal Shah Pahari, Ganjo Takar, Hyderabad. Soon after the First Information Reports Nos. 41 and 42 for contravention of section 5 of the Explosive Substances Act, 1908, were lodged against the two petitioners Ghulam Sarwar and Tooti Gul, respectively. Statement of Muhammad Macchi under section 161, Cr. P. C. Was also recorded and the two petitioners were separately challaned in the Court of A. C. M. Hosri, at Hyderabad.
4. Before the challans were submitted before the learned A C. M. He granted interim bail to the two petitioners on 17th May, 1979: They absconded as soon as the bail was granted and remained absent from the Court till they were produced by their sureties on 26th January, 1980. The sureties withdrew from their' bail bonds and since the bail of the petitioners was cancelled for having absconded they were remanded to custody. On 26th January, 1980 the learned A. C. M. Ordered the case papers to be sent to Additional District Magistrate. Hyderabad for its transfer to judicial Court for trial as he was a witness in the case, while the case was still pending there an application under section 249-A, Cr. P. C. Was moved on behalf of the petitioner Ghulam Sarwar only on 18th February, 1980 for his acquittal. The learned A. C. M. As its appears from his order dated 26th February, 1980 declined to pass an order of acquittal under section 249-A, Cr. P. C. But referred the matter to District Public Prosecutor for his opinion as to whether it would not be feasible to forward the case to Special Court constituted under Suppression of Terrorist Activities Act, 1975 for trial of the petitioner Ghulam Sarwar. No such application under section 249-A. Cr. P. C. Was magi in the proceedings pending against petitioner Tooti Gul otherwise all other facts in respect of the two proceedings pending against the petitioners are similar. Without allowing the matter to be finally decided as to whether the proceedings against the two petitioners should be referred to the Special Court abovementioned, this Court was moved in these petitions by the two petitioners Ghulam Sarwar and Tooti Gul on 12th March, 1980 and 14th March, 1980 respectively,
5. Mr. Shaukat Naqvi, the learned counsel appearing on behalf of the petitioners has contested the petitions on three fold-round firstly, that the alleged recovery of the explosive substance from' the two deras of the petitioners shall not contravene the provisions of section 5 of the Explosive Substances Act, 1908, secondly that the learned A. C. M. Had taken an illegal cognizance of the proceedings against the petitioners and had no jurisdiction to try the cases against them, and thirdly that the proceedings have been delayed for a long time for no fault on the part of the petitioners.
6. Mr. Makhdoom Ali, the learned counsel for the State, has repelled the contentions in the terms to the effect that the alleged recovery was from the deras (dwelling places) of the petitioners and not froth the licensed premises 2nd, therefore would not be covered by the terms and conditions of the licence that the cognizance taken by the learned A. C. M. Would not vitiate the proceedings against the petitioners, and that since the learned Magistrate was considering to refer the case to the Special Court constituted under the Suppression of Terrorist Activities Act. 1975 which Court has alone jurisdiction to try the cases against the petitioners, the petitioners immediately rushed up to this Court with these petitions, with the result that the learned A.C.M. Could not refer the cases to the Special Court. He has further contended that the delay in the disposal proceedings was clearly on account of the conduct on the part of the petitioners and in any case such ground of delay would not entitle the petitioners to move for quashment of proceedings under section 561-A, Cr. P.
C. Of the Criminal Procedure Code.
7. So far the alleged recovery is concerned there is nothing to show Prima facie that it was covered by the terms and conditions of the licence granted to Mr. Irtaza Khan the master of the petitioners.
The terms and conditions of the licence clearly show that the explosive substance could be possessed only on the licensed premises described in the licence itself and such licensed premises shall be situated near Quba Maola Ali four furlongs from road Hyderabad-Tando Mohammad Khan in Ganjo Takar. According to the condition No. 2 of the licence the explosive material shall be kept in substantial building constructed of non-inflamm--able material or in a fire proof safe as may be approved by the District Authorities separated from any dwelling house or other building, another licensed premises, Highway, street, public thorough-fare or public place by a distance of 150 feet and made or closed so as to prevent unauthorised persons from having access thereto and to secure it from danger from without. It would appear that the documents relied upon by the learned counsel for the petitioners, namely. First Information Report, Mashirnama of recovery and the statement of mashir Muhammad Machhi do not speak either that the explosive substance was recovery confirmed to terms and condition; of the licence granted to the master of the petitioners.
The documents also do not speak that the deras of the petitioners from where the alleged recovery was effected were situated on the licensed premises. Prima facie, therefore, there is no evidence at present to say that the alleged recovery was effected from the licensed premises and was in accord--ance with the terms and conditions of the licence. The rest of the merit of the case as to whether the mashir Muhammad Machhi was a stock witness of Police or that what the witnesses are going to say or not to say would be a matter for consideration at the trial where their evidence world be recorded. Accordingly, the contention raised on behalf of the petitioners to the effect that the alleged recovery would not contravene the provisions of section 5 of the Explosive Substances Act, 1908 prima facie, is without substance.
8. What is further clear on the record that in the proceedings against the petitioner Ghulam Sarwar an application under section 249-A, Cr. P. C. For his acquittal was made but finding that the learned Magistrate was not inclined to allow it and was considering to refer the proceedings to the Special Court for trial after calling for the opinion from the DPP, these petitions under section 561-A, Cr. P. C. Were filed. In that respect thy attention has been drawn to the following observation made by the Supreme Court in the case of Ghulam Muhammad v. Muzamil Khan (PLD 1967 SC 317)
"The inherent jurisdiction given by section 561-A, is not an alternative jurisdiction or an additional jurisdiction but it is a jurisdiction preserved in the interest of justice to redress grievances for which no other procedure is available or has been provided by the code itself. The power given by this section can certainly not be so utilised as to interrupt or divert the ordinary course of Cr. P. C. As laid down in the procedural statute."
It has been urged that since an alternative remedy was available t the petitioners under section 249-A which actually was resorted to o behalf of one of them and the matter was also being considered for the case to be referred to the Special Court competent to try the same, it was inappropriate on the part of the petitioners to have interrupted or diverted the ordinary course of Criminal Procedure Code as laid down in the procedural statute by filing these two petitioners under section 561-A. Reliance in that respect has also been placed on the case of Khushi Mohammad and 4 others v. State (1979 SCMR 94). The contention raised in that respect does not seem to be without some force, and I am inclined to agree with it.
9. My attention has also been drawn to the case Ghulam Akbar v. Muhammad Ilyas and another (PLD 1975 Kar. 231) wherein it was observed :- "Before a High Court will be justified in quashing a proceeding pend--ing in a criminal Court, the Court must be able to come to the clear conclusion without any manner of doubt that the accused persons are innocent and/or that in any view of the matter their conviction is quite impossible. It could then logically follow that to permit the trial to proceed can "only result in the harassment of a party who is innocent or whose conviction cannot in any case be achieved, and, for the purposes of a criminal trial, there is hardly any difference between a person who is in fact acquitted and one who cannot be convicted, for this purpose, a distinction must be drawn between proceedings which result from a complaint and those which are initiated upon a charge-sheet submitted by the Police.
Judging in the light of the above observations, in the facts and the circumstances of the instant case, it would be justified to say conclusively without any manner of doubt that the petitioners are innocent or that in any view of the matter their conviction is quite impossible.
10. Coming to the second contention, on hearing the learned counsels for the parties, there appears no manner of doubt that since the alleged contravention is of section 5 of the Explosive Substances Act, 1908, the Special Court constituted under Suppression of Terrorist Activities (Special Court) Act, 1975, shall have the jurisdiction to try the cases against the petitioners. The petitioners were arrested by the Police and not by the learned Magistrate. In any case, the contention that the learned Magistrate took an illegal cognizance of the cases, the circum--stance which is called in for the quashment of their proceedings is also without force as under section 5'9 (e), Cr. P. C., taking even wrong cognizance of offences under section 190 (l) (a) (b) would not vitiate the proceedings against the petitioners. The learned Magistrate was also considering to forward the cases to the Special Court when the proceedings before him were interrupted by filing the present petitions by the petitioners. In any case, to the petitioners, if they intended to be tried by a competent Court, could have if they so wanted, their remedy under section 526, Cr. P. C. What is clear from the record that the petitioners themselves were responsible for the proceedings having been held up against them as they absconded for having secured bail from the Court of learned A.
C. M. And were made to appear by their sureties on coercive process having been issued against them and on an attempt by the learned Magistrate to forward the proceedings to the Special Court, they themselves interrupted such proceedings by filing the present petitions and they themselves appear to be responsible for the consequences. Consequently this contention raised on behalf of the petitioners has also no force.
11. The third contention raised on behalf of the petitioners is also without force as the mere fact that a long period has expired since initiation of the proceedings is no ground for quashment of criminal proceedings as was pointed out in the case of Ghulam Muhammad v. Muzamil Khan and 4 others.
12. The learned Magistrate may now forward the proceedings to the Special Court having jurisdiction. In any case, the petitioners shall in t that respect, if they choose, avail of remedy under section 526, Cr. P. C. Nothing that I have said in the course of this order should prejudice the assessm ent of the evidence before the trial Court.
13. The result is that with these observations the petitions shall stand dismissed.