1. ' MUKHTAR AHMED JUNEJO, J.--- Petitioners Abdul Jabbar, Muhammad Azim, Haji Salimuddin seek quashment of the criminal case No,76/91 pending against them in Special Court Suppression of Terrorist Activities, Hyderabad, for offence under section 392, P.P.C. Said case is outcome of a direct complaint filed by respondent No,1, Nizam Khan.
2. ' On 18-6-1991 respondent Nizam Khan lodged F.I.R. No,107/91 at Police Station Tando Allah Yar about snatching of one rifle and one gun from Ghulam Rasool Kolachi and Krishin Kolhi respectively, by three unknown culprits on the night between 17th and 18th of June, 1991. Respondent No,1 had informed police that footprints of the three culprits were tracked and they led tracking parts to the house of Joyo caste people, where Piaro, Dhani Bux, Yaqoob and Gullan were approached for taking out footprints but they declined. Police recorded F.I.R. Of Nizam Khan who suspected the culprits to be Piaro, Dhani Bux, Yaqoob and Gullan. On 10-7-1991 respondent No,1 sent a letter to the S.S.P., Hyderabad, to the effect that his Kamdar Ghulam Rasool whose rifle was snatched, had subsequently seen the culprits and had identified them to be Azim, Salim and Jabbar. On 18-7-1991 another letter on behalf of respondent No,1 was sent to the S.S.P. To the effect that the S.H.O. Was given an application to take action against the persons identified to be culprits by the Kamdar, but the D.S.P. Had ordered suspension of the proceedings. It was after all this, that the respondent No,1 filed Direct Complaint on 29-7-1991 in the Special Court for Suppression of Terrorist Activities, Hyderabad, against the applicants, for having robbed a gun and a rifle from Krishin Kolhi and Ghulam Rasool respectively on 18-6-1991. The Judge Special Court Suppression of Terrorist Activities, Hyderabad, under an order, dated 3-8-1991 issued warrants against the applicants shown as accused in the Direct Complaint. Hence this application.
3. ' Mr. Ghulam Hyder Baloch learned counsel for the applicants argued that the Special Court for Suppression of Terrorist Activities (hereafter mentioned as the Special Court) had no jurisdiction in the matter because the alleged robbery was in respect of a gun and a rifle and not in respect of a Klashnikov or a hand-grenade or a bomb etc. It was next argued that the applicant No,1 Abdul Jabbar was involved in the case because he as an Advocate at Tando Allahyar had filed on 19-3- 1991 a direct complaint on behalf of Haji against Saleemuddin son of Rahim Khan brother of respondent No,1 Nizam Khan and others in the Special Court. Applicant No,2 Muhammad Azim was said to have been involved in the case because he was uncle of Abdul Jabbar and both were desired by Salimuddin brother of Nizam Khan to be arrested alongwith Haji Salimuddin son of Ahmed Ali who had engaged Abdul Jabbar as a counsel in his cases against Saleemuddin son of Rahim Khan, Nizam Khan and their relatives. Learned counsel for the applicants also referred to the F.I.R. No,67/91 lodged by Salimuddin son of Ahmed Ali Khan on 23-4-1991 at Police Station Tando Allahyar against Razzak, Iqbal son of Munoo, Aslam, Mukarram, Iqbal son of Hidayatullah and Salim and argued that present direct complaint was filed by the respondent No,1 in counterblast of said F.I.R. In support learned counsel for the applicants cited the case of Asif Ali v. State and another 1992 P Cr. L J 58.
4. ' Mr. MA. Latif, learned A.A.-G. For State argued that a Special Court created by the Suppression of Terrorist Activities (Special Courts) Act, 1975, (hereafter to be mentioned as the Act) can directly take cognizance of a case triable by such Court, without the case being sent to it under section 190 of Cr P.C. Learned AA.-G., next argued that the prosecution witnesses had supported the prosecution during preliminary examination and that the provisions contained in section 561-A of Cr.P.C. Were not attracted to this case.
5. ' Mr. Noor Nabi Memon, learned counsel for the respondent No,1 opposed the application. He contended that before moving for quashment of the proceedings the applicants should have moved the trial Court for their acquittal under section 249-A of Cr.P.C. It was next argued that after issue of process there was no stage for quashment of the proceedings. Learned counsel referred to the provisions contained in section 5-A of the Act dealing with procedure of Special Court. It was also argued that the direct complaint was not result of previous litigation and that such plea cannot be raised in an application for quashment. In support learned counsel for the respondent No,1 cited the cases of:-
(i) Mian Munir Ahmed v. State 1985 SCM R 257;
(ii) F. Brummel and others v. State PLD 1986 Kar. 390;
(iii) Marghoob Alam and another v. Shamas Din and another 1986 SCM R 303;
(iv) Mohsin Ali and another v. State 1972 SCM R 229;
(v) Ghulam Muhammad v. Muzammal Khan and others PLD 1967 SC 317;
(vi) Mst. Allah Rakhi and others v. State 1980 P Cr. L J 561 and
(vii) A. Habib Ahmed v. M.K.G. Scott Christian PLD 1992 SC 353.
6. Admittedly the trial Court was not moved under section 249-A of Cr.P.C. For acquittal of the applicants. In the case of F. Brummel and others PLD 1986 Kar. 390 it was held that the proper course is to allow first the trial Court to exercise jurisdiction under section 265-K or 249-A of Cr.P.C., whichever is available and if the application is dismissed then resort could be had to the remedy available in the High Court. Under these circumstances the application moved by the applicants is premature.
7. ' It was not argued on behalf of the respondent No,1, if proceedings pending in the Special Court under the Act, cannot be quashed by this Court. On this point counsel for the respondent No,1 cited the case of Mian Munir Ahmed v. State 1985 SCMR 257, where it was held that High Court is empowered to exercise its jurisdiction under section 561-A, Cr.P.C. With respect to proceedings in any Court including a Labour Court. Consequently it cannot be said that this Court has no jurisdiction to quash proceedings pending in the Special Court under the Act.
8. ' In the case of Marghoob Alam and another 1986 SCMR 303 it was held that powers under section 561-A, Cr.P.C. Are intended to prevent abuse of process of the Court but not to stifle prosecution. In the case of Mohsin Ali and another 1972 SCMR 229 it was held that where evidence was yet to be led in support of the accusation made in the complaint, the proceedings were not to be quashed.
9. In the case of Ghulam Muhammad v. Muzammal Khan and others PLD 1967 SC 317 it was held that inherent powers are preserved to meet a lacuna in the Criminal Procedure Code in extraordinary cases and are not intended for vesting the High Courts with powers to make any order which they are pleased to consider to be in the interests of justice, as such powers are as much controlled by principles and precedents as are its express statutory powers. In the same case it was also held that if in fact an offence had been committed justice required that it should be enquired into and tried. In the case of Mst. Allah Rakhi and others 1980 P Cr. L J 561 the view taken was that in considering the question of quashing a criminal proceeding at the preliminary stage when evidence is yet to come, the High Court has to take the allegations against the accused at their face value and accept the same in their entirety and then see if they do not constitute any offence for which a prosecution be warranted. In the same case it was observed that the High Court in its limited jurisdiction under section 561-A of Cr.P.C., will not embark upon an inquiry to ascertain the innocence or otherwise of the accused. In the case of A. Habib Ahmed PLD 1992 SC 353 it was held that if prima facie the offence had been committed, the ordinary course of trial before the Court was not to be allowed to be deflected through an approach to special revisional or inherent jurisdiction of High Court.
10. ' As against the aforesaid authorities it was held in the case of Asif Ali 1992 P Cr. L J 58 cited on behalf of the petitioners, that mere fact that evidence in the case had already been recorded or that the trial of accused was about to conclude, could not alone be made a ground for dismissal of an application under section 561-A, Cr.P.C., if the Court was otherwise of the view that the trial of accused amounted to his harassme nt. In said authority also it was held that ordinarily petitions under section 561-A, Cr.P.C. For quashing of judicial proceedings are not entertained directly by the High Court unless accused has first approached trial Court under section 249-A of Cr.P.C.
11. ' According to clause (iii) of para (a) of the Schedule below the Act an offence punishable under section 392 is triable by the Special Court under the Act, if an arm of a prohibited bore is used for commission of the offence. In the present case there is allegation that the robbery of a gun and a rifle was committed by three culprits who were armed with guns which were prohibited weapons.
12. The Judge Special Court under the Act, had issued the process against the applicants after holding preliminary inquiry in which witnesses were examined. In these circumstances it would not serve the interest of justice if the prosecution is stifled at this stage and the proceedings are quashed.
13. The fact that previously applicant Salimuddin had filed a criminal case under the F.I.R. No,67/91 against Razak, Iqbal, Aslam and Mukarram or a direct complaint was filed by Haji Machi against Salimuddin and others does not help the applicants for quashment of criminal case against them although such evidence may help them during the trial. At the stage of quashment the plea of the accused that they were falsely implicated because of certain previous cases filed by them, would not be available to them.
14. ' For the foregoing reasons we dismiss this application for quashment of the proceedings. A short order in these terms was passed on 30-7-1992 and these are reasons for the same.