1. The applicant Syed Zaffar Hussain Naqvi seeks the quashment of proceedings of Sessions Case No.82 of 1990 under section 17(3), Offences Against Property (Enforcement of Hudood) Ordinance, pending before the IInd Additional Sessions Judge, Karachi. These proceedings are the outcome of F.I.R. No.12/1990 of Temoria Police Station registered on 11-1-1990. The applicant and the co-accused Adnan Ahmad Khan are challenged in the said case to face trial.
2. The facts in brief as disclosed by the complainant in his F.I.R. Are that on 11-1-1990, he had gone to see his Khata at North Nazimabad and on his return, when he reached at Block-7, North Nazimabad ground three boys confronted him. They took out revolvers and caught hold of him, saying that the complainant should surrender whatever he had. One of the culprits removed the purse from the pocket of his pant, which contained-Rs.50n, National Identity Card and the Card of Dawood Engineering College. They asked the complainant to keep quiet whereafter they ran away through a lane. Many others also witnessed this incident.
3. The applicant and the co-accused Adnan Ahmad Khan were arrested on 11-1.-1990. The challan was put up before the Court on 27-1-1990 and since then the case has not proceeded.
4. The learned Advocate has contended that the applicant and co-accused Adrian were arrested and challaned but the third accused, has neither been arrested, nor shown as an absconder in the challan. Nothing was recorded from the accused nor they were put to any identification test through the complainant or the witnesses. The applicant and co-accused were not previously known to each other and as such the identification test was necessary. It is next contended that section 17(3) of Offences Against Property (Enforcement of Hudood) Ordinance, for which the applicant is facing trial could not be applicable in this case, as the value of the property taken away does not amount to Nisab or exceeds Nisab. The allegation as per the F.I.R. Is that the complainant's purse with Rs.500 was removed besides the identity cards. Article 6 of the Ordinance defines Nisab as under:-- "The Nisab for theft liable to Hadd is four decimal four five seven (4.457) grams of gold, or other property of equivalent value, at the time of theft."
5. It is contended by the learned Advocate that the approximate value of 4.457 grams gold on the relevant date was Rs.1,335 while the allegation is of relieving the complainant of a sum of Rs.500.
6. Thus, the property being below Nisab, the offence under section 17(3) of the Ordinance could not be proved even if the case of the prosecution is taken to be true in its entirety. It is contended by the learned Advocate, that the applicant and co-accused, even if they face the ordeal of trial cannot be convicted for the offence for which they have been charged.
7. It is next contended by the learned Advocate that there is no witness to support the complainant Adil Aziz on the point .Of actual robbery. In the F.I.R., it is mentioned that many persons witnessed the incident but no body was examined by the police. The proof for an offence of Haraba as required under Article 7 of the Ordinance is also not available in the present case. There is no circumstantial evidence and in these circumstances it is contended that the continuance of proceedings before the trial Court would not only be an exercise in futility but also abuse of the process of law.
8. The learned Advocate was asked to explain as to why he has not moved the trial Court under section 249-A or 265-K, Cr.P.C. For the acquittal of the accused and instead has invoked the jurisdiction of this Court under section 561--A, Cr.P.C. The learned Advocate has contended that the jurisdiction of this Court is co-extensive and concurrent with the jurisdiction of the trial Court. In his view there is no bar to invoking the jurisdiction of this Court directly under section 561-A, Cr.P.C. In support of his contention he has placed reliance on Mian Munir v. The State 1985 SCMR 257, Qaiser Saleem and others v. Hashim Hussain and another 1986 P Cr. L J 133, Ali Nawaz and another v. The State and another 1986 P Cr. L J 411, Muhammad Tufail and others v. The State and another 1986 P Cr. L J 2749.
9. Mr. Abdul Fateh Kazi, the learned counsel appearing for the State has supported the quashment application and has contended that the offence does not fall within the ambit of section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, as the amount robbed is only Rs.500 which is much below the Nisab as defined in Article 6 of the Ordinance. He has also conceded that there are no witnesses to the actual commission of the Haraba and there is neither any recovery from the applicants nor the identification test has been held. He also contended that the continuance of proceedings against the applicant and co-accused are not likely to result in their conviction for an offence under section 17(3) of the Ordinance, but the same shall be abuse of the process of law.
10. I have heard the arguments of the learned Advocate and gone through the contents of the F.I.R.
11. And the statements of the witnesses recorded during investigation. There is no independent witness to the actual robbery except the complainant. The proof of Haraba is provided under Article 16 of the Ordinance, which reads as under:-- "The provisions of section 7 shall apply, mutatis mutandis for the proof for Haraba."
12. Such proof is again provided in Article 7 of the Ordinance. Except the complainant there is no other witness as mentioned above. I also find that there is no recovery from the accused of the amount robbed nor any identification test was held ever since their arrest. The third accused allegedly one of the culprits has not been arrested nor shown as an absconder in the challan. The applicant could invoke the jurisdiction of this Court under section 561--A, Cr.P.C. Rather then moving the trial Court for his acquittal under section 265-K, Cr.P.C. The case-law referred is very clear in this respect. In my view the continuance of proceedings before the trial Court would not only be an exercise in futility as the evidence on record cannot result into the conviction of the applicant and co---accused but to my mind it shall also be abuse of the process of law. Accordingly, the proceedings of Sessions Case No.82 of 1990 under section 17(3) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 pending before the Second Additional Sessions Judge, Karachi are hereby quashed.