SYED SAEEDUDDIN NASIR, J.---Through this application under section 561-A Cr.P.C., the applicant/accused seeks to quash the proceedings in respect of Case No,2049/2015 pertaining to the FIR No,149/2015 under sections 420/408/381, P.P.C. Of P.S. Gizri, Karachi pending before the Judicial Magistrate-XII, Karachi (South).
2. Brief facts of the case are that on the complaint of complainent Imdad Ali son of Khuda Bux an FIR No,149/2015 was registered against the applicant/accused at P.S. Gizri, Karachi wherein it has been alleged that the complainant was working as Legal Head at Axact Company and the applicant/accused was working in the said company as Associate Vice President. It is further alleged in the FIR that applicant/accused was found involved in stealing of the company's data that included Promos of Programs and employees data, and conveying the same to some other companies. When the applicant/accused got caught red handed, he confessed that he used to forward the data through email and mobile phone and subsequently he admitted his guilt. On the aforesaid statement of the complainant, the said FIR was lodged against the applicant/ accused and subsequently challan was submitted in the trial Court on 03-07-2015. The applicant/accused had filed an application under section 249-A, Cr.P.C. Before the trial Court on 04-08-2015, which was ,dismissed vide; impugned order: dated: 09.11.2015. Against the said order, applicant/accused made instant application before this Court for quashment of the proceedings and his acquittal under section 561-A, Cr . P. C .
3. The learned counsel for the applicant/accused has inter alia argued that applicant/accused is innocent and the victim of personal grudge and departmental rivalry due to which he has been falsely implicated in the present case by the complainant in connivance with the police officials of P.S. Gizri, Karachi with mala fide intention and for ulterior motives; that there are no reasonable grounds to believe that the applicant/accused has committed the offence with which he is charged; that from the face of it, the contents of FIR and challan show concoction of baseless story and nothing incriminating the applicant/accused is available on the record; that the alleged offences fall under the Electronic Transmission Ordinance, and as such the same falls within the precinct of FIA and the local authorities of police have no legal authority to investigate the same as such at the very outset the registration of FIR by the police is illegal due to which the learned Judicial Magistrate has no jurisdiction to try the same; that the charge sheet was submitted on 22.04.2015 but till today, as evident from the diary sheets, not even a single prosecution witness has been examined by the prosecution as well as by the complainant in the instant Case before the Trial Court to record their evidence; that the prosecution has nothing available with them except for the alleged extra judicial confessional statement of the accused in the form of a C.D., which is inadmissible in evidence under the Qanun-e-Shahadat and as such not tenable under the eyes of law; that since no material evidence is available with the prosecution, therefore, there is no probability that the trial may end in conviction.
4. In order to substantiate his arguments, the counsel for the applicant/accused has placed reliance on the following case law:
1. Izhar Hussain v. Inspector Aslam Pervez, SHO, Khokhrapar P.S, Karachi and another - 2014 PCr.LJ 1329 Sindh;
2. Zaheer Ahmed v. Directorate General of Intelligence and Investigation-IR and 4 others - 2015 PTD 349 (Sindh High Court)
5. Controverting the arguments of the learned counsel for the applicant/accused the learned APG appearing for the State has vehemently opposed the instant application under section 561-A, Cr.P.C. And has submitted that the impugned order passed by the Judicial Magistrate-XII, Karachi (South) is unexceptionable and that the instant application is liable to be dismissed inasmuch as the same is pre-mature due to the fact that charge has been framed and summons and warrants have already been ordered to the complainant and witnesses; that all the grounds taken by the learned counsel for the applicant/accused require evidence.
6. In the case of lzhar Hussain v. Inspector Aslam Pervez, SHO, Khokhrapar P.S., Karachi and another reported in 2014 PCr.L.J 1329 Sindh, relied upon by the learned counsel for the applicant/accused, it is held that: "High Court has been bestowed inherent powers to make such orders to prevent abuse of process of law and to secure ends of justice under section 561-A Cr.P.C.
Normally, in the first instance Trial Court should be approached under section 249-A or 265-K, Cr.P.C. As the case may be. No bar existed to invoke inherent jurisdiction of High Court under section 561-A, Cr.P.C." In this case, the inherent jurisdiction of this court has been discussed in relation to powers of the High Court to prevent the abuse of the process of law in order to secure ends of justice.
7. This case is also not relevant to the facts and circumstances of the instant case inasmuch as not even a single prosecution witness has been examined by the prosecution in the same. Moreover, I see no abuse of the process of law being occasioned in the instant case at present.
8. In the case of Zaheer Ahmed v. Directorate General of Intelligence and Investigation-IR and 4 others reported in 2015 PTD 349, it is held that: "High Court is responsible for entire administration of justice and being charged with responsibility of supervising all Courts subordinate to it, High Court is competent to take all appropriate measures for preventing maladministration of justice and abuse of process of law in appropriate cases-When case is of no evidence or registration of case is proved to be mala fide or case is of purely civil nature or when there is unexceptional delay in disposal of case causing deplorable mental, physical and financial torture to person proceeded against, High Court is competent to take cognizance of the matter and by exercising inherent powers under section 561-A, Cr.P.C. To correct a wrong by ordering quashing of FIR and proceedings emanating there from-Powers vested in High Court under section 561-A, Cr.P.C. Are co-extensive with powers vested in Trial Court under sections 249-A and 265-K, Cr.P.C. And in appropriate cases can be invoked directly without resorting to decision by Trial Court under sections 249-A and 265-K, Cr.P.C. To avoid abuse of process of Court."
9. In the instant case, neither there is an unexceptionable delay nor is it a case of no evidence, the fact of the matter is that the evidence has not yet started and the prosecution has not examined even a single witness though the challan has been submitted as far back as on 03-07-2015.
Therefore, the facts and circumstances of the present case differ from the case law cited as above.
10. I have heard the arguments of the learned counsel for the applicant/accused and the learned APG for the State and considered the case-law.
11. It is an admitted position that charge has been framed and summons and warrants have already been ordered to be issued to the complainant and witnesses, all the grounds taken by the learned counsel for the applicant/accused require evidence. There are at least four (4) prosecution witnesses, including the complainant himself, whose names are mentioned in the charge sheet and whose evidence is material and is yet to be recorded in order to determine the guilt of the accused.
12. Therefore, I am of the opinion that in the absence of any prosecution witness being examined and any material evidence being brought on record by the prosecution, the instant application is premature and is devoid of any merit, which is consequently dismissed.
13. However, it is noted from the observations made by the learned Judicial Magistrate in the impugned order that the attitude of the complainant as well as the state counsel is quite erratic due to which unnecessary hardship is being caused to the applicant/accused. Therefore, I direct the learned trial court to examine the complainant and all the rest of the prosecution witnesses within one month from the date of this order, and if no material and incriminating evidence is brought on record by the prosecution, and which is insufficient to support conviction, the applicant/accused shall be at liberty to make a fresh application under section 249-A, Cr.P.C. For the acquittal of the applicant/accused before the trial court. It may be noted further that if the complainant fails to appear on the next date of hearing to be fixed by the learned trial court, the learned Judicial Magistrate may stop the proceedings under section 249, Cr.P.C. In the terms as already observed in the impugned order, however, strictly in accordance with law.