' Nafisur Rehman Khan, applicant, has filed this Cr. Misc. Application for quashment of the proceedings relating to Case No, 619/83, under sections 468, 471, 170 and 109, P.P.C. Of the Court of A.C. And S.D.M., Central, Karachi.
2. The facts giving rise to the case are that on 21-4-1985 ex-S.I. Tanveer Hyder of C.C.S. Central Division, Karachi, lodged a report in Police Station Gulshan-e-Iqbal alleging that on such date itself S.I. Tanveer Hyder, A.S.I. Muhammad Sharif and A.S.I. Shah Nawaz along with a police party were on patrol duty for crime checking with a view to eradicate crimes. It was alleged that during their `gash they received information pursuant to directions of Deputy Commissioner (East), Karachi, that a group of persons was posing itself as representative of Radio Pakistan and recording the voices of school teachers and children on tapes. On the date of occurrence such group was active at Bersek Primary and Secondary School. The complainant, therefore, under supervision of Mr. Amin Ansari, S.D.M. (Central), Karachi, along with the police party and in the presence of witnesses Serbuland Khan and Muhammad Aslam, at about 1430 hours, having reached at Bersek Primary and Secondary School, Gulshan-e-Iqbal, Karachi, found accused Niaz Ahmed Khan son of Amirullah Khan and Sajid Yar Khan son of Hamid Yar Khan present in a school room. They had made the boys and girls sit at the location and were recording a programme in the way of a quiz competition. On enquiry from the SDM, the two accused informed him that they were representatives employees of Pakistan Broadcasting Corporation, Karachi, whereas in charge of the quiz programmer was one Nafis Khan and such programme was being recorded for being broadcast on Radio Pakistan. Follow up enquiry was made from Syeda Naz Kazmi of Radio Pakistan and it was revealed that these persons had no connection whatever with Radio Pakistan. On personal search of both such persons, in the presence of witnesses, by S.D.M. (Central) from the possession of Niaz Ahmed, accused, an invitation card was recovered, on which were inscribed words 'Annual Quiz competition under the auspices of Pakistan Broadcasting Corporation, Karachi".
Underneath was written Nafis Khan, In charge Programmed. Two chits were also recovered on which the questions written were (1) 'Tell who is President of Pakistan and (2) `Can you tell the old name of Lahore'? Two cassettes were found in the possession of accused Sajid Yar Khan, on one of which was written `Bersek Secondary School, Gulshan-e-Iqbal', and on the other the inscription was `Shamim Secondary School'. Some other school cards were also recovered, all of which were seized through mashirnama. On subsequent arrival, Nafisur Rehman Khan son of Azizur Rehman Khan was arrested, on potation of Niaz Ahmed, accused. On these facts, the allegation in the F.I.R. Was that these persons were impersonating themselves as representatives and employees of Radio Pakistan, Karachi, recording voices of school children and preparing fake documents in the name of Radio Pakistan. All the accused persons were arrested under section 170/468/471/109, P.P.C. Since the incident pertained to Police Station Gulshane-Iqbal, a statement for registering the case was forwarded through Constable Maqbool Ahmed and such ease was registered at 2205 hours on 21- 44983.
3. The matter, in course of time, was referred to Court and proceeded in the Court of A.C. And S.D.M.
(Central), Karachi, as Case No,619/83: State v. Nafisur Rehman and others. On 25-9-1987, the learned Magistrate, recording that no PWs were present and summons were neither returned served nor, unnerved, even though the prosecution was given a last chance to produce its witnesses and the case was pending, since 1983, during which period not a single witness was produced, came to the conclusion that the State had failed to sustain the prosecution in any manner whatever and since he did not wish to prolong the matter, unnecessarily, the proceedings were, under section 249, Cr.P.C., dropped, with a direction that the same be kept on dormant files till the arrest of accused Niaz Ahmed Khan who had, in the meantime, been declared an absconder.
This application for abashment of proceedings was submitted on 9-3-1989 as during the period following, as well, no progress in the case was registered.
4. The contention of Mrs. Salima Nasiruddin is that the learned Magistrate should have acted under section 249-A of the Code of Criminal Procedure rather than under section 249 of that Code. It is further urged that on the basis of the F.I.R., even as it is, no case whatever was made out, at least, as against accused Nafisur Rehman.
5. On a query, as to why an application under section 249-A Cr.P.C. Was not moved before the trial Court following upon the order dated 20-5-1987 and before 9-3-1989, when this abashment application was submitted, it is urged that, in law, it is not necessary that, the jurisdiction under section 561-A, Cr.P.C. Should be invoked only after exhausting the remedy under section 249-A, Cr.P.C. In support is cited a recent judgment of Muhammad Rafiq Tarar, J., in Taj Muhammad v.
State 1989 P Cr. L J 1833. On the other side, reliance is placed by Mr. Imdad Hussain Kazi on Mohammad Ismail v. Amanullah and others 1989 P Cr. L J 913 where my learned brother Imam All Kazi, J. On a comparison of sections 265-K and 249-A, Cr.P.C. Came to the conclusion that powers under the two provisions are co-extensive and concurrent with the power of the High Court, for seeking such relief, but that in such cases the subordinate Court, being one of inferior jurisdiction, should, on principle, be approached first but then such a course of action could be deviated from, according to the facts of each case.
6. It is true that there is nothing in section 561-A of the Code of Criminal Procedure debarring or even precluding the High Court from entertaining a petition under section 561-A, Cr.P.C. Irrespective of the question whether the remedy under section 249-A has or has not been resorted to or availed of. Nonetheless, it is normally, the trial Court, which is in a better position, being seized of the record and proceedings of the case and, generally, having seizin of the lis to consider the matter in its entire perspective and to come to the conclusion whether or not a case for acquittal under section 249-A is made out. However, in the interest of justice and with a view to provide relief, in matters where the trial Court has exhibited some laxity in procedure or generally overlooked the infirmities in a case or where back reference would only cater to technicalities, without affecting the substance of the relief, a direct interference under section 561-A, Cr.P.C. May also be made. Still, care and caution are always the hallmark of the jurisdiction under section 561-A and, unless, there are good, if not compelling, reasons, the jurisdiction under section 249-A, Cr.P.C. Should not as a rule, be bypassed.
7. Now, in the instant case, as to facts, it is to be seen that, with a view to connect accused Nafisur Rehman Khan with the offence, it was essential that some evidence should have been made available but none was forthcoming till the order under section 249 of the Code was passed.
8. It cannot be denied that the jurisdiction under section 249, Cr.P.C. And that under section 249-A of the Code arises more or less in similar circumstances. Where there is some material on the record or a probability of ultimate conviction the Court is expected to take recourse to section 249 of the Code of Criminal Procedure but where there is no likelihood, as is reflected from the record or on the basis of the over-all conduct of the case, of any conviction, probable or otherwise, being made, in the ultimate analysis, proper approach would be to apply section 249-A, Cr.P.C. And to conclude the case altogether. In my view, the learned Magistrate exercised this jurisdiction properly as on allegations in the F.I.R. Applicant, Nafisur Rehman Khan, was clearly, implicated on the basis of printed material recovered from the other accused and even on the basis of what such other accused stated in response to the queries raised before their own arrest. There was, thus, material, apart from other evidence, to indicate a likelihood of conviction if and when the prosecution unfolded its case. Clearly, section 249-A could not be applied at that level and at that stage in the case. Such order, therefore, was unexceptionable.
9. However, since 25-9-1987, when the case was consigned under section 249, Cr.P.C. And upto 9- 3-1989, when this Court was moved, there is another period of a year and a half. During such period, too, the prosecution has remained totally unmoved and unconcerned, paying no attention whatever to the proceedings which technically, must be deemed to have remained pending. No evidence whatever has seen the light of the day all this while. Even at the time of hearing of this Criminal Misc. Application, I enquired from Mr. Imdad Hussain Kazi, the learned State Counsel, whether there was any probability, even at such a remote juncture, of prosecution witnesses being made available to press the charges against the applicant. The answer, regrettably, was again in the negative.
10. By now, it is settled law that delay, by itself, is not sufficient to establish abuse of the process of Court and that, solely, on account of common-place delay, unless inordinate, proceedings cannot be quashed. However, in cases where delay is serious, extending over a number of years, it has been found that continuation of such proceedings may not be calculated to secure the ends of justice, since such delay entails keeping the sword of Damocles, all the time, hanging over the head of the accused. In such and similar cases proceedings have been quashed, Reference, advantageously, may be made to Atlas Khan v. Azam Khan 1980 P Cr. L J 1018 and Israr Hussain v.
State 1986 P Cr. L J 574.
11. On the facts and circumstances of this case, I have been constrained to come to the conclusion that even though, at the time, when the learned Magistrate invoked section 249 of the Code of Criminal Procedure and relegated the case to dormant files, there was no sufficient indication to come to the conclusion that the prosecution had totally failed to pursue and press charges, such conclusion, in view of what has been observed above, becomes irresistible now.
12. While, accordingly, the proceedings must come to an end, the further question is whether this should be done here under section 561-A, Cr.P.C. Or that the applicant should be left to pursue his remedy under section 249-A, Cr.P.C. Before the trial Court. As observed above, there are no fetters to this jurisdiction, except those based on justice, airplay and propriety to allow the trial Court to exercise its own jurisdiction before recourse is taken to section 561-A Cr.P.C. However, if such a recourse tantamount to mere technicality and may result in driving an accused person unnecessarily from one Court to the other, better exercise of discretion would be to avoid that eventuality. In the present situation, leaving the applicant to seek his remedy under section 249-A, Cr.P.C. Would have no other result. I, therefore, in exercise of powers under section 561-A, Cr.P.C.
Would quash the proceedings against the present applicant, in the context of the controversy from which this petition arises.
' Order accordingly.