' SYED MUHAMMAD FAROOQ SHAH, J.---Through this Criminal Misc. Application under section 561-A, Cr.P.C., following relief has been sought by the applicant:- PRAYER That taking cognizance on the Application of the Complainant and making the applicant as an accused is illegal and not in accordance with law. ii) Under the circumstances as enumerated above this Hon'ble Court be pleased to quash the impugned order of joining the applicant as an accused and issuance of NBW against the Applicant. iii) That even otherwise there is no evidence against the Applicant to justify his arrest or subsequent trial by the Anti-Corruption Court".
2. Story of the prosecution case in nutshell is that on written complaint of Umar Daraz son of Misri Khan, an FIR No, 3/2014 was registered on 24.02.2014 at Police Station Anti-Corruption Establishment, at Karachi. The above named Complainant alleged that on 16.03.2011, he received a threatening telephonic call for release of his son Saeed Alam on payment of illegal gratification of Rs, 10, 00,000/-with caution that in case of non-payment, his son shall be involved in false cases or killed. It has further been alleged by the Complainant that he paid the demanded amount to one ASI Rizwan in presence of three witnesses and made a request for release of his son but they (police officials) did not release his son and on the contrary, they involved his son in a false case by showing recovery of Rs, 245000/- from his house in a bank dacoity case. Contents of the FIR reveal that an inquiry was conducted by the officials of concerned establishment and investigation officer arrived at the conclusion that SI Raja Khalid, ASI Tanveer, ASI Rizwan, ASI Qaseem Qureshi of SIU Jamsheed Town, Karachi and others were involved in demanding illegal gratification by misusing of their official powers and they illegally confined son of the Complainant. Subsequently, on completion of usual investigation, the aforesaid accused were charge sheeted on 10.03.2014, and cognizance was taken by learned Special Judge, Anti-Corruption (Prevention), Karachi, against all accused named above, except the applicant who was neither named in the FIR nor in interim charge sheet.
2. A perusal of record transpires that on application of advocate for the Complainant made on 05.04.2014, supplementary interim challan was submitted by the Investigation agency on 16.06.2014; accepted through impugned order dated 27.08.2014, which reflects the name of the applicant as an accused. Contents of supplementary challan submitted on 16.06.2014 reveals that beside SI Raja Khalid, ASI Tanveer, ASI Rizwan, ASI Qaseem Qureshi of SIU Jamsheed Town, Karachi and others, the applicant was also booked in receiving illegal gratification, misuse of official powers and illegal confinement of son of the Complainant, who received bribe of Rs, 3,50,000/- for release of son of Complainant and the Deputy Director (Legal), ACE, Karachi, advised the investigation officer to send up the name of applicant Inspector Ali Raza as an accused in this case. It is an admitted position that Charge has been framed by the trial Court against the applicant and others and the case is being proceeded before the competent Court of law.
3. Arguments advanced by Mr. Muhammad Farooque, advocate, representing the applicant and Mr. Saleem Akhter, Addl. Prosecutor General are considered. Record has also carefully been perused.
4. Admittedly, neither name of the applicant Police Inspector Ali Raza reflects in the FIR nor in the interim charge sheet submitted under section 344, Cr.P.C. However, a perusal of record transpires that application in shape of complaint was addressed to the IGP Sindh, Karachi on 02.02.2012 by the Complainant, prior to lodging the FIR, which reflect the name of the applicant with specific allegation of charging illegal gratification amounting to Rs, 3,50,000/- for release of son of Complainant. In the case of Inayatullah and 4 others v. The State reported as 1999 PCr.LJ 731 relied on by learned Counsel for the applicant, it was held by learned single Judge of this Court that "Indeed a trial Court is competent to call/summon any person and to join him as co-accused during the trial but such power is to be exercised when there is sufficient material before the trial court, connecting such person in the alleged offence." While placing reliance on different citations, it was observed in the said ruling that in appropriate cases where incriminating evidence is available on the record of the case or when some material A implicating him is brought on the record, the accused can be summoned under section 193, Cr.P.C. The learned judge has also placed reliance on the case of Falak Sher and another v. The State (PLD 1967 SC 425)) wherein it is held, inter alia, that the magistrate is not bound by the report submitted by the police under section 173, Cr.P.C. And that there B is nothing in section 190, Cr.P.C. To prevent a magistrate from taking cognizance of the case under class 'B', inspite of the police report. The case of Muhammad Akber v. The State and another reported as 1972 SCMR 335 has also been cited by the learned counsel, wherein it is held, inter alia, that "After all the police is not the final arbiter of a complaint lodged with it". Observation recorded in the concluding paragraph reads that "It is observed that it will be open to the trial court to pass any order directing present applicant to join the trial as co- accused pending further trial, provided some sufficient evidence is brought on record during the trial implicating all or any of the applicants named above". Other citations viz. Naseebullah and another v. The State (PLD 1986 Karachi 417) and S. Mateen-ur-Rehman v. The State (2004 YLR 2101) relied on by the learned Counsel are not attracting-in the peculiar facts and circumstances of the present case. Suffice it to say that there are specific allegations of demand and acceptance of illegal ratification for release of Complainant's son Saeed Alam by applicant/accused Inspector Ali Raza along other accused but amazingly the inquiry official/investigation officer in interim charge sheet, submitted under section 344, Cr.P.C. Did not mention the name of applicant without any reason as the inquiry officer deliberately and intentionally neither exonerated the applicant Inspector Ali Raza in commission of the offence nor implicated him to be an accused, though he was involved by the Complainant with specific role. In such way, the investigation does not seem to be conducted in a transparent manner by suppressing and concealing the name of the applicant and I.O. Submitted the incomplete interim challan under section 344, Cr.P.C. Before the Court just to save the applicant from the clutches of law.
6. Conversely, learned Additional Prosecutor General submitted that alternate and efficacious remedy is available in the shape of section 249-A, Cr.P.C., which can be invoked at any point of time after taking cognizance by the Magistrate; more particularly, charge has been framed against the accused persons including the applicant and now the matter is coming up for evidence. In such eventuality, extraordinary constitutional jurisdiction of this Court is available only after all legal remedies are exhausted. Learned Prosecutor placed reliance on the case of Muhammad Abbasi v. SHO Bhara Kohu and 7 others (PLD 2010 SC 969) wherein the Hon'ble apex Court held that "In our view where alternate remedy is more convenient, beneficial and likely to set the controversy at naught completely, jurisdiction under Article 199 cannot be exercised". In the case of Bashir Ahmed v. Zafar-ul-Islam and others (PLD 2004 SC 298), the Hon'ble Court held that "The incidence of quashing criminal cases which are under trial with the Courts of competent jurisdiction by invoking powers under section 561-A, Cr. P. C. Is becoming increasingly frequent. It is time to take stock of this tendency and to remind ourselves of the correct principles governing the subject so that the powers meant to prevent the abuse of law are not abused themselves (page- 310)". It was further held that "In the matter of quashing criminal proceedings, the trial must ordinarily be permitted to take its regular course envisaged by law and the provisions of section 561-A, Cr.P.C. Should be invoked only in exceptional cases for reasons to be recorded".
7. It is not out of context to mention here that the power of taking cognizance by the competent Court under section 190, Cr.P.C. Is not controlled by the submission of charge sheet as provided under section 173, Cr.P.C., if Court arrived at the conclusion on the basis of material on record that a prima facie case has been established against same nominated accused, then the competent Court/Magistrate would be free to take cognizance notwithstanding the submission of interim report submitted under section 173, Cr.P.C. In the instant case, by taking cognizance against the applicant, learned trial judge has applied his judicial mind thereto and apparently found a prima facie case made out against the applicant and other accused, therefore, the claim of applicant to quash the proceedings at the threshold and abort the trial seems to be entirely unjustified. On taking account of entire circumstance, I hereby decline to interfere with the impugned order, which does not reflect any illegality, gross-irregularity or infirmity as non-joining or exonerating the applicant in commission of the specific allegation shows that the interim report submitted by the concerned Investigation Officer is the result of dishonest investigation, due to mala fide intention and ulterior motive. Consequently, the impugned order does not require any interference, is hereby maintained. The captioned Criminal Misc. Application in hand is dismissed along with pending application(s) with observation that the trial Court shall expedite the trial and conclude it at an earliest preferably within a period of three months from today.