' NAZIM HUSSAIN SIDDIQUI, J.--- Applicants Ghulam Nabi and Mushtaq have filed this application under section 561-A, Cr.P.C. For' quashment of proceedings pending against them before the Court of Special Judge (Suppression of Terrorists Activities) at Hyderabad. The facts relevant for disposal of this application are as follows:--
2. The case of prosecution, in brief, is that on 5-6-1992 at about 10-15 p.m. Near the house of late Haji Fateh Khan, in village Tando Bahawal Bhurgri, Taluka Hyderabad, the applicants along with absconding co-accused Ghulam Nabi Afghani and number of unknown military personnel, more than five in number, including Major Arshad Jameel, duly armed with deadly weapons, such as guns, rifles etc. Formed an unlawful assembly and in prosecution of the common object of said assembly, abducted (1) Hamlo, (2) Manthar, (3) Bahadur Chandio, (4) Haji Akram, (5) Kabu Khaskheli, (6) Jawed alias Jawi Khaskheli, (7) Ghulam Mustafa Brohi, (8) Dhani Bux; and (9) Shafi Muhammad Bhurguri from near said house of deceased Haji Fateh Khan Bhurguri and killed all of them near Pumping Station Machine at Indus River Jamshoro, District Dadu. It is also the case of prosecution that at that time injuries were caused to one Usman by the accused with the intention to kill him. The motive of crime, as disclosed in the F.I.R., was a dispute between the parties over the land. Accordingly, the F.I.R. No,42/1992 was registered at Police Station Housri Hyderabad, under sections 364, 302, 324, 120-B, 140, 147, 149, P.P.C. Read with section 14 of Hudood Ordinance, and on completion of investigation charge-sheet was submitted against the applicants and others before the concerned Court.
3. The case proceeded before learned Special Judge, S.T.A., Hyderabad and the prosecution examined (1) Complainant Darya Khan P.Ws. Muhammad Usman, Ghulam Hussain, Allah Rakhio, Allah Dino, Haji Khan, Abdul Majeed, Gul Hassan Mashir, Muhammad Malook, Ghulam Muhammad Memon and Dr. Muhammad Ramzan.
4. It is averred in this application that Major Arshad Jameel was tried by a Court Martial and was sentenced to death, while other Army Officers involved in this matter, were awarded life imprisonment.
5. Prior to this application, the applicants had filed Criminal Miscellaneous No,288 of 1995 before this Court and on 4-7-1995 it was disposed of with the following observations:-- "Mr. Qamar Muhammad Khan, learned counsel for the applicant states that he would be satisfied if only a direction is given to the trial Court -to conclude the trial at a very early date, as only the Investigating Officer remains to be examined. The course adopted by the learned counsel is only proper. This application is, therefore, dismissed. The trial Court is directed to conclude the trial on priority basis preferably within two months."
6. Mr. Raja Qureshi, learned counsel for the applicants in support of the pleas raised in this matter has heavily relied upon sections 94, 95 and 96 of the Pakistan Army Act, 1952, which are as follows:- - Section 94: ORDER IN CASE OF CONCURRENT JURISDICTION OF COURT-MARTIAL AND CRIMINAL COURT.
When a Criminal Court and a Court-martial have each jurisdiction in respect of a civil offence, it shall be in the discretion of the prescribed officer to decide before which Court the proceedings shall be instituted and, if that officer decides that they shall be instituted before a Court- martial, to direct that the accused person shall be detained in military custody.
Section 95: POWER OF CRIMINAL COURT TO REQUIRE DELIVERY*OF OFFENDER.
(1) When a Criminal Court having jurisdiction is of the opinion that proceedings ought to be instituted before itself in respect of any civil offence, it may, by written notice, require the prescribed officer, at his option, either to deliver over the offender to the nearest Magistrate to be proceeded against according to law, or to postpone proceedings pending a reference to the Federal Government.
(2) In every such case, the said officer shall either deliver over the offender in compliance with the requisition or shall forthwith refer the question as to the Court before which the proceedings are to be instituted for the determination of the Federal Government, whose order upon such reference shall be final.
Section 96: TRIAL BY COURT-MARTIAL, BAR TO SUBSEQUENT TRIAL BY CRIMINAL COURT.
' Where a person subject to this Act is acquitted or convicted of an offence by a Court-martial, a Criminal Court shall be debarred from trying him subsequently for the same offence or on the same facts.
7. Mr. Raja Qureshi, learned counsel for the applicants strenuously argued that Army Personnel were the main accused in this case and they were tried and convicted by the Military Authorities, as such, the trial Court was not competent to proceed against the applicants on the same facts which had already been adjudicated. In order to appreciate the points raised by the learned counsel we consider it necessary to refer various provisions of the Army Act, which are as follows:-- CIVIL OFFENCE: ' Civil offence as defined in subsection (3) of section 8 of the Army Act, reads as under:--
(3) "civil offence" means an offence which, if committed in Pakistan, would be tribal by a Criminal Court; "
' Section 59 of the Act which deals with civil offences, is as Follows:-- ' Section 59, Civil Offences.--- (1) Subject to the provisions of subsection (2),any person subject to this Act who at any place in or beyond Pakistan commits any civil offence shall be deemed to be guilty of an offence against this Act and, if charged therewith under this section, shall be liable to be dealt with under this Act, and, on conviction, to be punished as follows, that is to say,--
(a) if the offence is one which would be punishable under any law in force in Pakistan with death or with imprisonment for life, he shall be liable to suffer any punishment other than whipping assigned for the offence by the aforesaid law or such less punishment as is in this Act mentioned; and
(b) in any other case, he shall be liable to suffer any punishment other than whipping assigned for the offence by the law in force in Pakistan, or ... Rigorous imprisonment for a term which may extend to five years or ... Such less punishment ase is in this Act,mentioned.
(2) A person subject to this Act who commits an offence of murder against a person not subject to this Act or to the Air Force Act, 1932 (XIV of 1932) or the Pakistan Air Force Act, 1953 VI of 1953 or to the Pakistan Navy Ordinance, 1961, XXXL of 1961 or of culpable homicide not amounting to murder against such a person or of rape in relation to such a person, shall not be deemed to be guilty of an offence against this Act and shall not be dealt with under this Act unless he commits any of the said offence,--
(a) while on active service, or at any place outside Pakistan, or at a frontier post specified by the Federal Government by notification in this behalf.
(3) The powers of Court-martial or an officer exercising authority under section 23 to charge and punish any person under this section shall not be affected by reason of the fact that the civil offence with which such person is charged is also an offence against this Act.
(4) Notwithstanding anything contained in this Act or in any other law for the time being in force, a person who becomes subject to this Act by reason of his being accused of an offence mentioned in clause (d) of subsection (1) of section 2 shall be liable to be tried or otherwise dealt with under this Act for such offence as if the offence were an offence against this Act and were committed at a time when such person was subject to this Act; and the provisions of this section shall have effect accordingly."
8. It is not disputed nor it could be disputed that Major Arshad Jameel being a Military Officer was subject to the provisions of Army Act and it being so he could be tried by the Court-martial. In fact, he was so tried and convicted as stated earlier. Split trial under Cr.P.C., in certain circumstances, is permissible. According to section 94 ibid it is the discretion of the prescribed Officer to decide that before which Court the proceedings shall be instituted. In other words, by virtue of section 94 even the applicants and co-accused could be tried by Court-martial. In any case, the only restriction placed by section 96 is that when a person subject to Army Act is acquitted or convicted of an offence by a Court-martial, a Criminal Court is debarred from trying him subsequently for the same offence or on the same facts. This means that a person acquitted or convicted as above cannot be tried by the Criminal Courts, but there is no bar for proceedings against those persons, who have not been acquitted or convicted by the Court-martial for the civil offences. Admittedly, the applicants were not tried by the Court-martial.
9. Mr. Raja Qureshi, learned counsel for the applicants next argued that from the evidence on record it is not established that the applicants had committed any of the offences they stand charged. He cited the case of Asif Ali Zardari v. The State and another 1992 PCr.L.1 58 to contend that section 561-A, Cr.P.C., can be invoked where, prima facie, no case is made out and it can be spelt out from the circumstances that the prosecution was launched with sole object to harass the accused. The dictum laid down in this case, in fact, does not support the applicants. It has been observed in this case that sufficiency or non-credibility of the prosecution evidence cannot be a ground for abashment of the proceedings.
10. The law on the point of inherent power of the High Court in relation to section 561-A, Cr.P.C. Is now well-settled. High Court possess power to remove injustice and statutory recognition has been accorded of this power of High Court by virtue of said section. The examples of inherent powers possessed by High Court under this section are, to make such orders as may be necessary to give effect of its decisions or to prevent an abuse of the process of any Court or otherwise to secure the ends of justice. It is an established principle of law that all Courts whether Civil or Criminal, must possess inherent powers, which are necessary to their existence and their proper functioning. This is based on the principle embodied in the maxim quando lex aliquid alicui conceit, conceder vide tur id sine quo res ipsa esse nonpotest, which means that when the law gives a person anything it gives him that without which, it cannot exist. The consensus of the Superior Court is that inherent power cannot be invoked in respect of the matters, which are covered by specific provisions of Cr.P.C. Nor this section can be applied for overriding an express provision of law, which restricts or limits the power of the Court. Power under this section is to be sparingly exercised and this Court would not hold an enquiry as to whether the evidence in question is reliable or not, as basically it is the function of the trial Court nor it can be urged before this Court that on the basis of proper appreciation of evidence the charge could not be sustained against the accused.
11. Section 561-A, Cr.P.C. Came under discussion in the case of M.S. Khawaja v. The State PLD 1965 SC 287, Honorable Supreme Court in this case at page 290 observed as follows:-- "Limitation does not apply to criminal prosecutions, and it is also inappropriate to examine questions of delay through the actions of the Government, or the prosecution authorities, as if they gave rise to equities, on the same footing as in a civil matter inter partes Every prosecution for a criminal offence is to be deemed to have been commenced and continued in the public interest, as a duty of the State. It can only be in a very rare case that a superior Court acting under its inherent power 'to prevent abuse of the process of any Court or otherwise to secure the ends of justice', would deem it appropriate to act so as to place an alleged offence outside the operation of the criminal law, on incidental grounds such as that of delay, or for any reasons other than reasons going to the question whether the allegation is sufficient to constitute an accusation of an offence in law."
Again this section was examined. In the case of A. Habib Ahmed v. M.K.G. Scott Christian and 5 others PLD 1992 SC 353 it was observed by the Supreme Court the inherent jurisdiction of the High Court is not an alternative jurisdiction or additional jurisdiction. Further, it was observed that section 561-A, Cr.P.C. Could not be utilized as to interrupt or divert the ordinary course of criminal procedure and that the High Court in its discretionary jurisdiction would not short circuit the normal procedure of trial as provided by law. In the case of Mian Munir Ahmad v. The State 1985 SCM R 257 it was observed by the Honorable Supreme Court that the powers of High Court under section 561- A, Cr.P.C. And that of trial Court under section 249-A, Cr.P.C. Are co-extensive and concurrent and trial Court should be approached in first instance.
12. Coming back to the facts of the instant case it is noted that witnesses namely complainant Darya Khan, P.Ws. Ghulam Hussain, Allah Rakhio, Imam Bux, Muhammad Jumman and others have implicated the applicants and their evidence at this stage, in detail cannot be examined. It is primarily function of the trial Court and this Court will not interfere in the exercise of said right by the trial Court. Mr. Raja Qureshi by drawing certain analytical conclusions from the evidence and discarding certain pieces of evidence on the basis of alleged discrepancies submitted that the applicants shall be deemed to have not committed, the said offences. Suffice it to say that neither insufficiency nor non-credibility of prosecution evidence can be a valid ground for the quashment of proceedings.
13. Mr. Raja Qureshi also contended that the applicants had filed an application under section 249- A, Cr.P.C. Before the trial Court and said application has not yet been decided. It is noted that in this application/petition the applicants have nowhere mentioned that their said application was pending for decision, we do not dispute factum of filing of said application, but that it is not clear that when it was filed and whether it was pressed or not. In any case Mr. Farooq M. Naek, D.A.-G.
And Mr. Shafi Muhammad Memon, A.A.-G. Submitted that the case now is ripe for final 'disposal, as such, the said application, if any, has become infructuous. Since entire evidence has been recorded it would be an exercise in futility to dispose of said application separately and the points raised therein may be considered at the time of final arguments of the matter.
14. Mr. Raja Qureshi in the last submitted that the trial Court be directed to look into the record of Court-martial concerning Captain Arshad Jameel at the time of final arguments in the matter. The case is to be decided on the basis of evidence brought, on record and not on extraneous matter.
Therefore, no such direction can be given.
15. In consequence we do not find any merits in this application and the[G same is dismissed in limine.