SHAHNAWAZ TARIQ, J.---Through the captioned criminal miscellaneous application, applicant Khuda Nazar has sought the following reliefs:-
(i) That this Hon'ble Court may be pleased to quash the FIR No.01 of 2014 lodged by the respondents.
(ii) That this Hon'ble Court may be pleased to direct the respondents to release the vehicle No.TLW 698 of the applicant and handover it along with HSD oil.
2. The necessary facts spelt out from instant application are that applicant is owner of a transport company in the name of Khuda Nazar Traders, and dealing with oil transportation through oil tankers. It is further averred that on 20.07.2014, applicant's oil tanker No.TLW-698 loaded 60,000 liters HSD Oil from Byco Company, Karachi, for its delivery to Naseem Petroleum Service, Sadiqabad, but when said vehicle reached near Hyderabad, it was intercepted by law enforcing agency and said oil tanker was detained at Custom House, Hyderabad, and employees of applicant were arrested. Applicant filed application under section 491, Cr.P.C. For recovery of his employees before the Court of learned Sessions Judge, Hyderabad, which was disposed of in view of the comments of respondent No.3 that driver of the vehicle had failed to produce supportive legal documents i.e. Sales Tax Invoice and proof of license issued by the OGRA etc. It is also stated that respondent No.3 being doubtful that HSD oil was brought in the country un-authorizedly and was liable for its confiscation, hence lodged FIR No.01 of 2014.
3. Learned counsel for applicant contended that applicant is a wholesale dealer of oil, having his vehicles for transportation of oil from Refineries to all over Pakistan. He further contended that on 20.07.2014, applicant's oil tanker loaded 60,000 liters HSD Oil from Byco Company, Karachi, for its delivery to Naseem Petroleum Service, Sadiqabad, was intercepted by the law enforcing agency and confiscated HSD oil and arrested drivers of said tanker. He further submitted that Collector of Customs (Adjudication), Quetta after verification of documents has released said oil tanker along with oil. He also submitted that complainant has lodged a false FIR with ulterior motive against applicant which is liable to be quashed.
4. While controverting the contention raised by learned counsel for applicant, learned Special Prosecutor for respondents has vehemently contended that applicant is a habitual offender and was convicted in another FIR. In support of his arguments he produced the copy of conviction order. He further contended that a credible information was received from D.G. Intelligence, Islamabad, regarding the transportation of a huge quantity of smuggled/non duty paid HSD Oil, whereupon applicant's oil tanker was intercepted near Hyderabad. He further contended that on failure of drivers to produce the valid documents before the raiding officer, appropriate legal action was initiated. He submitted that applicant transported 60,000/- liters of HSD oil from an illegal depot situated at Hub but none has claimed the ownership of the seized oil. He further contended that interim challan has been submitted before the trial Court which has already taken cognizance against accused, but instead of approaching the trial Court to avail the appropriate remedy for redressal of his grievances, he has filed instant application which is not maintainable.
5. Learned Standing counsel has fully supported the arguments advanced by counsel for respondents and categorically stated that applicant has to follow the requisite procedure and approach the trial court for his acquittal.
6. Perusal of the material available on record and consideration of arguments advanced by learned counsel for the parties emanate that allegedly applicant's oil tanker loaded with 60,000 liters was apprehended along with its drivers and they failed to produce the requisite valid documents on demand before the concern authority. Whereupon the required notice was served upon the driver on the spot, and instant FIR was lodged accordingly. It is also significant to mention that applicant was already convicted for similar offence by the Court of Special Judge (Customs, Taxation and Anti-Smuggling) Karachi vide order dated 25.07.2011, in crime No. M-1551 of 2011, under section 156(1)(89) of Customs Act, 1969, regarding smuggling of 30,000 liters HSD oil by his oil tanker. Indeed, during the pendency of instant application, applicant without withdrawing the relief sought vide prayer clause "b" through the instant application, approached the Collector of Customs (Adjudication), Quetta for release of oil tanker along with oil and same were released vide order 18.02.2015.
7. It is well settled that after submission of Challati and taking cognizance by the concerned trial Court, High Court while exercising constitutional power under Article 199 of the Constitution of Pakistan or section 561-A of Cr.P.C. Should not quash the FIR unless and until there are exceptional circumstances involved. The High Court should not in its discretionary jurisdiction short circuit the normal procedure of trial as provided by the law on the mere consideration of defence plea without exhausting the available remedy for acquittal of accused by invoking the provisions of section 265-K, Cr.P.C. Or section 249-A, Cr.P.C. It would not be appropriate to discuss or comment on the merits of the case at this stage.
8. At this juncture, I would like to refer the relevant case law as follows:-
(i) In case of Dr. Ghulam Mustafa v. The State and others (2008 SCM R 76), the honourable Supreme Court has observed as follows:- "6. We have considered the submission made by learned counsel for the parties and have perused the record. It is a settled law that our constitution is based on trichotomy. The Courts have right to interpret the law and the High Court had no jurisdiction whatsoever to take the role of the investigating agency. There are several pronouncements of this Court that learned High Court has no jurisdiction to quash the FIRs while exercising constitutional power under Article 199 of the Constitution or section 561-A of Cr.P.C. Unless and until there are very exceptional circumstances existed. It is also a settled proposition of law that judgments of this Court are binding on each and every organ of the State by virtue of Articles 189 and 190 of the Constitution.
As mentioned above, the offences in the impugned FIR are not compoundable, therefore, learned High Court was not justified to quash the FIR in question. By accepting the constitutional petition the learned High Court erred in law to short circuit the normal procedure of law as provided by law while exercising equitable jurisdiction which is not in consonance with the law laid down by this Court in various pronouncements."
(ii) In case of A. Habib Ahmed v. M.K.G Scott Christan and 5 other (PLD 1992 SC 353), that Hon'ble Supreme Court has observed as follows:- "If prima facie the offence had been committed justice required that it should be enquired into and tried. If the accused are not as a result of the trial found guilty they have a right to be declared as "honorably acquitted by a competent Court." On the other hand if the evidence against the accused discloses a prima facie case then "justice clearly requires that the trial should proceed according to law". The inherent jurisdiction of the High Court is not an alternative jurisdiction or additional jurisdiction. It is only in the interest of justice to redress grievances for which no other procedure is available. The power given by section 561-A, Cr.P.C., can certainly, not be so utilized as to interrupt or divert the ordinary course of criminal, procedure as laid down in the procedural statute. The High Court would not in its discretionary jurisdiction short circuit the normal procedure of trial as provided by law."
In the above referred case law, the honourable Apex Court has observed that prosecution should not be deprived from adducing its evidence after submission of the charge sheet and the High Court should not exercise its jurisdiction in each and every case.
9. Admittedly, applicant after submission of interim charge sheet in instant crime, instead of approaching the learned trial Court to agitate his plea of acquittal, has directly invoked the jurisdiction of this Court for seeking quashment of subject FIR alleging the same to be false and based on the ulterior motives of complainant, while he was already convicted for the similar offence of smuggling oil by the learned Special Court, which apparently supports the allegations leveled in FIR. Therefore, prosecution should be provided with full opportunity to produce its evidence and let the learned trial Court thrash hold the truth and applicant may place his plea of defence before the Court during the course of trial.
10. Considering the facts, circumstances and identical case law referred supra, the instant application for quashment of FIR No.1 of 2014, being devoid of legal substance stands dismissed.