1. ' SYED HASAN AZHAR RIZVI, J.---This is an application under Section 561-A, Cr.P.C. For quashment of proceedings pending against the applicant before the Court of learned Vth Judicial Magistrate West at Karachi forwarding case of applicant to Sessions Judge and declined to discharge the applicant being declared as innocent by the Investigating Officer in the Charge Sheet and Ignoring the affidavit sworn by the complainant regarding No Objection initiated on the basis of FIR in Crime No.98 of 2013 under Section 302/34, P.P.C. At Police Station Itihad Town, Karachi.
2. Brief facts of the case as alleged in the FIR lodged by complainant Muhammad Nawab son of Jumarat Khan are that I reside at Sher Shah Colony Karachi. We are three brothers and I am elder, the younger brother name is Zahir and then Abdul Wali, Muhammad Zahir was employed as constable in Pakistan Ranger 73 Wing, who was resident of Gulshan-e-Ghazi Block-B, near Makkah Masjid Baldia Town, Karachi in his own house and was married having two children, he came to house on Night Pass, dated 31.3.2013, I was coming to house from night duty, my brother-in-law Ameer Akbar Shah informed me on phone that my younger brother Muhammad Zahir has sustained bullet injury outside the house and they are taking him to Abbasy Hospital for treatment, when I reached Abbasy Hospital at emergency ward I was informed that my brother had died due to injuries during treatment, police officer on my pointation inspected the dead body of my brother and wrote statements, to my knowledge my brother was coming to home after performing Namaz-e-Isha, when reached near house two unknown persons armed with weapons due to unknown enmity injured My brother who died during treatment.
2. ' Police after usual investigation submitted charge-sheet on 24.4.2013, wherein he placed the present applicant Ahmed Khan in column No3. The learned Vth Judicial Magistrate Karachi (West) being dissatisfied with the report of I.O. Forwarded the matter to Hon'ble Sessions Court after completion of proceedings under Section 87/88, Cr.P.C. For want of report. The applicant challenged the said order by filing petition for quashment before learned Sessions Judge Karachi (West), which was refused by the learned Sessions Judge Karachi (West) on the ground that since challan of the said case is still pending before Vth Court of Judicial Magistrate for proceedings under Sections 87/88, Cr,P.C. And has not received the case under Section 190(2) Cr.P.C., hence this Cr. Miscellaneous Application.
3. ' I have heard Mr. Noor Muhammad, learned counsel for the applicant and Mr. Imtiaz Ali Jalbani, learned Assistant Prosecutor General, Sindh.
4. ' Mr. Noor Muhammad, learned counsel for the applicant has contended that applicant is next door neighbor of deceased who took the deceased to hospital in injured condition for treatment but the applicant was arrested on the instance of informer due to suspicion. He further contended that applicant was remained in police custody for 05 days but police failed to get recovered any incriminating articles from the possession of the applicant or to get recorded confessional statement of applicant. He also contended that it was an unseen incident and complaint was lodged against unknown persons and the I.O. Of the case after completing investigation declared the applicant as innocent as no incriminating evidence available with police to connect him in the crime.
5. He vehemently urged that learned respondent No.4 called the complainant who sworn affidavit and extended his No objection if the Court discharge the applicant in this case but the learned respondent No.4 did not consider the said affidavit of complainant so also the report of I.O. Who declared the applicant as innocent and forwarded the case of applicant to learned Sessions Judge. He submitted that another affidavit sworn by the complainant before this Court recorded his no objection if this Court quash the proceedings pending against the applicant before the trial Court. He also submitted that the applicant is behind the bars since he was arrested for no fault on his part as there is no direct or indirect evidence available with the police to connect the present applicant with the commission of alleged offence. He also submitted that in the facts and circumstances there is no likelihood in conviction of the applicant and the proceedings of the trial Court would be nothing except the agony for the applicant. He, therefore, prayed for setting aside the impugned order and for quashment of proceedings pending before the tiral Court against the applicant. In support of his submissions, he placed reliance on the case of Mairaj Khan v. Gul Ahmed (2000 SCM R 122).
6. ' Mr. Imtiaz Ali Jalbani, learned Assistant Prosecutor General Sindh has opposed the grant of application and has stated the FIR was lodged properly by complainant, the brother of deceased.
7. He supported the impugned order and submitted that the learned respondent No.4 has fully empowered to decline the report submitted by the I.O. In case he is not satisfied. He placed reliance on the cases of Safdar Ali v. Zafar Iqbal and others (2002 SCM R 63) and Bashir Ahmed v.
8. Zafar-ul-Islam (PLD 2004 SC 298), wherein it was observed that jurisdiction under section 561-A, Cr.P.C. Is an extra ordinary 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.
9. He, therefore, contended that the innocence of the applicant can only be determined after recording of evidence.
10. ' I have given due consideration to the arguments advanced by the learned counsel for the parties, perused the material available on record and the case law cited at the bar. There is no denial of the fact that this Court has the powers under section 561-A, Cr.P.C. To quash any proceedings pending before any subordinate Court, but this can be done only to prevent an abuse of the process of court or to secure the ends of justice when there is no other alternate remedy available.
11. In exercising such powers the court can also take into consideration the material which is available on the record. In the case in hand, the applicant was arrested on the instance of informer on suspicion and one of the alleged accused Shahid son of Taj Muhammad is absconder and proceedings under sections 87/88, Cr.P.C. Is pending before the trial Court. No doubt, in the present case a young man has lost his life, but it is also the fact, which cannot be ignored that a person is behind the bars merely on the ground of suspicion. FIR was lodged against unknown persons. There is no material available on record that there was some enmity between the deceased and the applicant. The I.O. Present in Court filed his comments wherein he stated that no incriminating article had recovered from the possession of present applicant during police custody as well as he did not give any confessional statement. It is stated that during course of investigation, it was come to knowledge that applicant had illegal relations either direct or via telephonically with the wife of deceased and on these issues, applicant and deceased quarreled with each other, but later on after interference of noble person matter was resolved between both parties. But in the charge- sheet it has come on record that applicant recorded the voice of deceased's wife and applicant also sent his mother and sister to the house of deceased with the message that deceased to understanding his wife as applicant has relation with deceased like a brother, which clearly show the bona-fide on the part of the applicant. Therefore, police submitted report under 'C' class.
12. ' There is no cavil to the proposition that application under section 265-K, Cr.P.C. Can be moved at any stage of proceedings, but such application has to be dealt with strictly on merits in the light of relevant provisions of law. It may be mentioned here that time and again, it has been held by the Hon'ble Apex Court that powers under section 561-A, Cr.P.C. Are to be exercised sparingly and in extraordinary circumstances. It cannot be utilized to divert the ordinary Courts of Criminal Procedure Code and the provisions are not meant to stifle the prosecution case, so to interrupt or divert Court of Criminal Procedure as laid down in the Procedural Statutes. Though the application under section 265-K, Cr.P.C. Can be filed at any stage i.e. Before or after recording of evidence, however, while considering the feasibility of the application at any particular stage, the facts and circumstances of the prosecution case have to be kept in view.
13. ' Under these circumstances, I am of the view that it is a fit case where extra-ordinary relief should be allowed to the applicant by quashing the proceedings against him before trial Court and setting aside the impugned order as no material available on record to connect the applicant with the commission of offence, particularly when the complainant himself sworn affidavit before this Court that he has no objection if the applicant acquit or quash the proceedings against him before the trial Court. Accordingly, the Cr. Misc. Application is allowed, impugn* order dated 24-5-2013 is set aside and proceedings pending against the applicant before the trial Court are hereby quashed.