' NAIMUDDIN, J.---This is an appeal from the order of the High Court of Sindh dated 12-4-1989, whereby the High Court dismissed the Criminal Miscellaneous Application No, 41 of 1988 for quashment of the proceedings pending in the Court of Special Judge (Customs & Taxation), Karachi against the appellant and two others observing that it would be premature to say anything about the merits of the case at that stage as the case had not then proceeded and it involved smuggling of huge quantity (31.614 Kilo) of heroin powder, and gave the following observation: "However, since the case is of 1986, I direct the learned trial Judge to proceed with the case expeditiously and to examine at least 4 (four.) material witnesses within three months from the date of receipt of this order, and thereafter the applicants can repeat their application under section 265-K, Cr. P.C. If so advised."
2. It appears that the appellant alongwith two others co-accused has been challaned under sections 2(s), 16, 178 and 156 (1) (8) of the Customs Act, 1969. The appellant alongwith two others filed three separate applications under section Cr.P.C. Before the trial Court for acquitting the appellant and the co-accused.
3. The trial Court by the order dated 5-4-1988 dismissed the application holding that the applications were premature as they could not be decided at that stage and on the material on record. Therefore, the appellant filed the abovementioned Criminal Miscellaneous Application in the High Court for quashment of the proceedings. This Criminal Miscllaneous Application, as stated above, was dismissed by the High Court. The reasons which weighed with the High Court in dismissing the quashment application may be quoted here: "I have considered the contention of the learned counsel. In the present case there are serious allegations regarding smuggling of huge quantity of Heroin, and disputed questions of fact are involved in this case. From the chart filed by the Investigation Officer/complainant it cannot be said at this stage that it is a serious case of absolutely no evidence."
4. Leave was granted by the Order dafed 24-4-1990 to consider the contention "that even if the prosecution case against the petitioner is to be believed at its worst against him, it does not connect him with the charges levelled against him by the prosecution."
5. On a query made by us, Mr. Kaikobad, learned counsel for the appellant, stated that after the remand of the case out of four material witnesses only one witness has been examined and the other three material witnesses have reportedly left the country. However, Mr. Kaikobad has not filed copy of the deposition of the witness examined and also the copy of the order sheet which could show why these witnesses have not been examined. Therefore, we cannot say whether this witness has involved the accused in any manner and why the other three witnesses could not and cannot be examined and whether these three witnesses were the only witnesses iii the case.
6. In the final challan submitted, it was stated against the appellant inter alia as follows: "Discreet enquiries were made which revealed that the British Airways Cargo Shed had been opened on Friday by Kenneth Marshall, consequently the investigation agency called for the Cargo Manifest of British Airways. Flight No, BA-146 Accordingly the evidence of Qamar Zaman was recorded. During the course of intensive interrogation it was revealed that 32 Kgs. Of heroin powder was to be taken to the British Cargo Shed on Friday, the 23rd May, 1986 and it was Rashid who had taken the full load of 32 kgs. Of heroin powder under the garb of press matter and through the connivance of Kenneth Marshall, British Cargo Shed was open and the contraband narcotic was stuffed in the wooden box booked in the name of Hussain Tariq. Accordingly Mr. Arther Vaz, the Senior Station Officer was examined alongwith other staff of the British Airways who categorically stated that the cargo shed of British Airways should not have been opened for press matter as it was most unusual to receive press matter in the Cargo Shed which is received two to three hours before the departure of the flight. It was also revealed that Kenneth Marshall had done all this on his own without having consulted his higher officials. Investigation has also revealed that he did not leave the chit indicating the expression viz. "parcel received so hours under 24 hours." This expression is used by the staff of the Airline when Cargo is received late that is to say within 24 hours from the time of departure. If this chit had been received by the Cargo Supervisor the press matter would not have been loaded on the flight, furthermore it would have exposed that the Cargo Shed had been operated upon on Friday, which fact Kenneth Marshall never wanted to bring to the notice of Cargo Supervisor, and his high officials."
Therefore, any interference with the proceedings at this stage will amount to stifling the proceedings.
7. The proper course for the appellant was to file a fresh application before the trial Court, as was allowed by the High Court by the impugned order, as the proceedings were not stayed by this Court at the instance of the appellant or otherwise.
8. Mr. Memon, learned counsel appearing on behalf of respondent No,2 one of the co-accused stated that 1-e has also filed an application for quashment of the proceedings in which further proceedings before the trial Court have been stayed and the High Court is not proceeding with the quashment application because of pendency of this appeal.
9. We get an impression that the appellant and other co-accused, who are respondents in this appeal, are in attempt to delay the trial of this case one way or he other as F.I.R. No, 795 of 1986 was lodged on 1-7-1986 and F.I.R. No,31 of ,986 was lodged on 20-7-1986, as shown in the Index of this appeal, and Challan a respect of the first F.I.R. Was submitted on 14-7-1986 and in respect of the second F.I.R. On 20-7-1986.
10. We, therefore, find no merits in this appeal and accordingly dismiss it on we, hope that if the statement made by the learned counsel, and we have no eason to doubt is correct, the High Court will dispose of the quashment application expeditiously so that the trial Court could proceed with the trial of the ase. It will also be open to the appellant to file fresh application under section 265-K, Cr. P.C., as was allowed by the High Court, if he is so advised and it will oe decided on its own merits.