1. ' This order will dispose of Criminal Miscellaneous Applications Nos.98 of 1994 and 16 of 1994 moved under section 561-A, Cr.P.C. Directly to the High Court instead of seeking relief under section 249-A, Cr.P.C. Or under section 265-K, Cr.P.C. From the trial Court in the first instance.
2. Criminal Miscellaneous Application No,98 of 1994. Was moved on behalf of two applicants/accused namely Moeenuddin alias Muna son of Islamuddin and Aslam son of Punjrung who were booked in Crime No,29/1994 registered on 13-5-1994 at Police Station Fort Hyderabad under sections 3 and 4 Prohibition (Enforcement of Hudood) Order, 1979 and the case is pending before Extra Joint Civil Judge/1st Class Magistrate, Hyderabad. Four other co-accused namely Wahid Bux, Dawood Pathan (both in custody), Andaz Crul and Ashfaq Khoso (both absconders) were also booked alongwith the two applicants in the same crime but no such application was moved on their behalf. At the time of hearing the application, the learned counsel for the applicants was asked about the circumstances on the basis of which such applications could be directly entertained by the High Court but, instead of answering the same, the learned counsel contended that it was not necessary for the accused persons to move application under section 249-A, Cr.P.C. Before the trial Court because the jurisdiction of the High Court is co-extensive and concurrent with the jurisdiction of the trial Court.
2. ' To consider such contentions, the application under section 561-A, Cr.P.C. Was admitted before passing any order for quashing the proceedings pending before the trial Court.
3. ' During the pendency of the above petition, another Criminal Miscellaneous Application No,16 of 1994 was moved on behalf of an accused Gulzar Ali who had been declared absconder in a crime arising out of an F.I.R. No,31/88 under section 302/34, P.P.C. Registered at Police Station Phul Hadiyoon. No application under section 265-K, Cr.P.C. Had been moved before the trial Court in this case too, before moving the above petition under section 561-A, Cr.P.C. However, the learned counsel Mr. Rochi Ram lukewarmly adopted the arguments of Mr. Ghulam Haider Baloch, Advocate, representing the accused in Criminal Miscellaneous Application No,98 of 1994, and mainly stressed upon the circumstances of the case in support of his contention.
4. ' Mr. Ahmad Khan Barakzai, Advocate appearing for the State, instead of relying upon any judgment, straight away supported the quashment of proceedings in both the cases. These were the circumstances that I preferred to go through the scope of section 561-A, Cr.P.C. Before passing any order for quashing the proceedings pending before the trial Courts.
3. No doubt the jurisdiction of the High Court under section 561-A, Cr.P.C. For quashing the proceedings is co-extensive (I would like to say much more extensive than deemed by the learned counsel) and concurrent with the jurisdiction of the trial Courts but it does not give any right to the High Court to invoke the same in each and every case or when desired or wished by the High Courts. For example the jurisdiction of the High Courts is also coextensive and concurrent with the jurisdiction of the trial Courts in the matters of bail applications under section 497, Cr.P.C. But it does not mean that the accused have been given right to move their bail application under section 497, Cr.P.C. Directly before the High Court's as and when desired by them especially when the same relief can be sought from the trial Courts. However, if a High Court decides to function as "trial Court" in any criminal case, then; of course, an application under section 497, Cr.P.C. Can be entertained by the High Court as was done, perhaps once in the judicial history of Pakistan, by the Lahore High Court in the unique and most crucial and controversial case of State v. Zulfiqar All Bhutto reported in PLD 1978 Lah. 523 during the Martial Law Regime after the Prime Minister of Pakistan had been ousted by General Zia in a Military Coup but such exceptionalities cannot replace the generalities in the field of law.
4. The learned counsel for the applicants, in support of their contentions, have relied upon a judgment of the Sindh High Court in the case of Syed Zaffar Hussain Naqvi v. The State reported in 1991 PCr.LJ 2304, authored by Mr. Justice Muhammad Aslam Arain, the operative parts of which are reproduced as under:-- "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 PCr.LJ 133, Ali Nawaz and another v. The State and another 1986 PCr.LJ 411, Muhammad Tufail and others v. The State and another 1986 PCr.LJ 2749.
5. ' The applicant could invoke the jurisdiction of this Court under section 561-A, Cr.P.C. Rather than moving the trial Court for his acquittal under section 265-K, Cr.P.C. The ease-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 Offence Against Property (Enforcement of Hudood) Ordinance, 1979 pending before the Second Additional Sessions Judge, Karachi are hereby quashed."
5. With due respect for my brother Lord Mr. Justice Muhammad Aslam Arain, I could not persuade myself to agree with the view expressed by him in the above quoted paras. Of the cited decision and I also failed to harmonise my view with the view of my brother Lord. To. Express my own view I sought guidance from Salmond on Jurisprudence by D.J. Fitzegrald which says that:- "Judicial decisions may be distinguished as authoritative and persuasive. An authoritative precedent is one which Judges must follow whether they approve of it or not. A persuasive precedent is one which the Judges are under no obligation to follow, but which they will take into consideration, and to which they will attach such weight as it seems to them to deserve. It depends for its influence upon its own merits, not upon any legal claim which it has to recognition. In other words, authoritative precedents are legal sources of law, while persuasive precedents are merely historical."
6. ' Although a decision of a High Court given by any Judge on any point is always authoritative for the subordinate Courts and is persuasive only to a Judge of the same Court with contrary view yet such opposing views cause hurdles and hardships for the subordinate Courts because they are bound to follow such decisions. But they do not know which one of the two views be followed by them. As it has become a practice of the subordinate Courts to decide cases on the weight of one view in some cases and on the weight of other view in other cases in accordance to their whims especially in bail matters at the time of granting or refusing bail to the accused persons, hence it is necessary that, for the purpose of securing better administration of justice, the opposing views be judged by the higher Benches of the superior Courts as soon as the same are brought to their knowledge so that one of the two contrary views be overruled. Although the operative part of the decision given by my brother Lord Mr. Justice Muhammad Aslam Arain has mention of certain cases yet it is totally silent regarding the facts and principles laid down by the authors of those cases. Hence it can be safely said that such decision was arrived at sub-silontio which cannot be treated authoritative. Out of those cases one was decided by the Supreme Court of Pakistan while the remaining were decided by the High Court of Sindh. The decision of the Supreme Court is authoritative and binding upon me under Article 189 of the Constitution of Islamic Republic of Pakistan but the cases decided by any S.B. Of the High Court of Sindh are only persuasive in their nature to be followed by me. On account of these reasons I considered it proper to deal with this important arguable point in detail to make my view clear with reference to all those cases mentioned in the above cited judgments as well as referred by the learned Advocates, notwithstanding to the rights of my brother Lords to agree or disagree with my view, because this fact is not fare from truth that this decision is also only persuasive in its nature for all of them.
6. In the case of Munir Ahmed v. State 1985 SCMR 257, it was observed byLordships of the Supreme Court that:-- "The powers of the trial Court under sections 249-A, Cr.P.C. And 265-K, Cr.P.C. Are co-extensive with the similar powers of the High Court under section 561-A, Cr.P.C., and both can be resorted.
7. ' It would, of course, be proper to approach the trial Court in the first instance but there is nothing to bar the High Court from entertaining, in appropriate cases, an application under section 561-A, Cr.P.C., directly.
8. ' These observations leave no doubt that only in appropriate cases, the Supreme Court considers it proper to entertain application under section 561-A, Cr.P.C.
9. ' In the case of Qaiser Saleem and 2 others v. Hashim Hussain and another 1986 PCr.LJ 133, his Lordship Mr. Justice All Madad Shah quoted one important extract from a case reported in PLD 1967 SC 317, containing a guiding principle for exercise of powers conferred under section 561-A, Cr.P.C.
10. Which runs as under:-- "The inherent jurisdiction given by section 561-A is not an alternative jurisdiction or an additional jurisdiction- but it is a jurisdiction preserved in the interest of justice to redress grievances for which no other procedure is available or has been provided by the Code itself. The power given by this section can certainly not be so utilised as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute. The High Court, as has repeatedly been pointed out in a number of decisions, should be extremely reluctant to interfere in a case where a competent Court has after examining the evidence adduced before it, come to the view that a prima facie case is disclosed and has framed charges or summoned, the accused to appear, unless it can be said that the charges on its face or the evidence even if believed, does not disclose any offence."
11. ' However, the proceedings pending before the S.D.M. Were quashed by the High Court because the nature of dispute between the parties was found to be of civil nature while the S.D.M. Had treated the same to be a criminal breach of trust.
12. ' In the case of Muhammad Tufail, 1986 PCr.LJ 2749, his Lordship Mr. Justice Ahmed Ali U. Qureshi had quashed the proceeding after differentiating between "breach of contract", for which civil remedy was available, and criminal breach of Trust, which was a criminal offence. From the contents of the complaint it became evident that the dispute between the parties was of civil nature so the High Court quashed the proceedings pending before the criminal Court. In the case of Munawar Ali Zaidi v. Mst. Qaiser Jahan PLD 1992 Kar. 104, incidentally I was the Advocate for the respondent in that case, the Court had repelled my contentions in the following words:- "Mr. Shafi Muhammadi, learned counsel for respondent No,1 has challenged the maintainability of this application filed under section 561-A, Cr.P.C. By stating that no second revision is competent against the order passed by learned IIIrd Additional Sessions Judge under section 439-A, Cr.P.C.
13. The learned counsel should have known that a complete answer to this objection is provided by the Supreme Court in the case of Muhammad Shafique and others v. Abdul Hayee and others reported in 1987 SCMR 1371, wherein it was observed that the powers possessed by the Courts under section 435/439, Cr.P.C. Do not impunge, curtail or limit in any manner whatsoever the powers under section 561-A, Cr.P.C. At page 1377, it was observed-- ' The jurisdiction requirements for the exercise of powers under section 561-A, Cr.P.C. Are...
(i) To give effect to any order under the Criminal
(ii) Procedure Code. To prevent abuse of process of (iii) any Court. To secure the ends of justice.
14. ' Such a power cannot be exercised against the express language of the statute and it only preserves what is possessed or is inherent in the Court itself. The revisional power certainly goes beyond in so far as the propriety as is distinguished from the mere legality can also be examined therein. The powers possessed by the Courts under section 435/439, Cr.P.C. Do not impunge, curtail, or limit in any manner whatsoever the powers under section 561-A, Cr.P.C."
15. ' Hence this case had nothing to do with the question of jurisdiction under section 249-A, Cr.P.C. Or 265-K, Cr.P.C.
16. ' In the case of Muhammad Zubair v. Muhammad Farooq 1992 PCr.LJ 2320, the High Court had invoked its jurisdiction under section 561-A, Cr.P.C. To meet the end of justice and to prevent abuse of the process of the Court because the trial Court had denied to supply the copies of certain documereven on payment of cost to the accused although it was bound to supply the same free of cost under section 265-C, Cr.P.C.
17. ' In the case of K.M. Hussain v. Fayyazullah Shareef 1990 PCr.LJ 1094 the High Court decided the application under section 561-A, Cr.P.C., already admitted for regular hearing as it was not proper, in such circumstances, to remand the case. It is important to point but that the observation of the Supreme Court made in the case of Munir Ahmed v. State 1985 SCMR 257 were also made the part and parcel of that decision to show that the principle laid down by the Supreme Court still remains unchanged. Even otherwise this case does not help the learned counsel because the application moved by him on behalf of the accused under section 561-A, Cr.P.C. Was not admitted to decide the main case on merits. The said application had been admitted only to consider the scope of section 561-A, Cr.P.C. In presence of the relief which was available to the accused persons under section 249-A, Cr.P.C.
18. ' In the case of Shaukat Ali v. The State 1992 PCr.LJ 1936 it was held that:-- "The inherent power of this Court preserved by section 561-A, Cr.P.C. Is not confined only to those cases when the orders are passed without jurisdiction or without hearing the parties affected thereby. It can well be invoked in all such cases where the ends of justice so require."
19. ' This decision does not give any right to the High Court to override the provisions giving powers to the Magistrates or the Sessions Court which are possessed by them under section 249-A, Cr.P.C. Or 265-K, Cr.P.C. Respectively. I think, that even a High Court, under this section, cannot override its own jurisdiction embodied in certain provisions for particular purpose. For example, every High Court has powers to issue directions in habeas corpus petition whenever any application under section 491, Cr.P.C. Is brought before it. If a person moves an application under section 561-A, Cr.P.C.
20. Instead of application under section 491, Cr.P.C., in the cases of habeas corpus, then it may not be proper for the High Courts to entertain such application for that specific purpose. However, if the directions issued by the High Court's on applications under section 491, Cr.P.C. Are not complied with, then the High Courts can use their powers under section 561-A, Cr.P.C. To give effect to its order passed in application under section 491, Cr.P.C.
21. ' In the case of Raffat Ali Barq v. S.H.O. Police Station Muzaffarabad 1991 PCr.LJ page 9, the police had lodged an F.I.R. On hearsay evidence of a person that a man and woman were doing obscene acts and the said persons had not been cited as witness. As the contents of the F.I.R. Did not possess the ingredients requisite to attract criminal liability under section 294, Cr.P.C., hence the proceedings were quashed by the High Court on account of incurable illegality in lodging the F.I.R.
7. In the case of Asif Ali Zardari v. The State 1992 PCr.LJ 58, it was said by their Lordships of a Division Bench that:-- "We are, no doubt aware of the fact that ordinarily petitions under section 561-A. Cr.P.C. For quashment of judicial proceedings are not entertained directly by the High Court unless the accused has first approached the trial Court under section 249-A, or las the case may be, section 265-K But the High Courts by laying down rule was only regulating its own procedure, there being no specific provision in the Code of Criminal Procedure requiring an accused to first approach the trial Court."
22. ' The above portion of the judgment is mostly referred without going through the background of the whole case. In that matter an application under section 249-A, Cr.P.C. Was moved before the trial Court after the statements of six prosecution witnesses had been recorded by the trial Court. The said application was dismissed and it was against that order of the trial Court that an application under section 561-A, Cr.P.C. Was filed before the High Court. At the time of hearing, the learned Advocate-General contended that statements of three more witnesses had been recorded by the trial Court during the pendency of the application under section 561-A, Cr.P.C., therefore, an application under section 249-A, Cr.P.C. Should be moved by the applicant once again but his contention was repelled because if the same had been allowed then no application under section 561-A, Cr.P.C. Could ever be decided by the High Court as the prosecution or the complainant could easily frustrate any proceedings under section 561-A, Cr.P.C. Pending before the High Court by examining certain witnesses in the trial Court before it could be finally heard by the High Court at any stage.
23. ' Hence there remains no doubt that the Division Bench had entertained application under section 561-A, Cr.P.C. After the applicant's application under section 249-A, Cr.P.C. Was dismissed by the trial Court. It may not be out of place to mention that one member of the said Bench (i,e, Late Mr. Justice Qaiser Ahmed Hamidi) had already expressed his view on the same point in several judgments by relying upon the judgment of the Supreme Court reported in 1985 SCMR 257.
24. Reference can be made to the judgments reported in 1992 PCr.LJ .2320 and 1990 PCr.LJ 1209.
25. ' It may not be considered that I am treating such observations as judicial dicta. What I want to say is that these observations were made in special circumstances of the case as is evident from the underlined portion of the extract quoted above. If it had not been so, every legal expert would have blamed that the Division Bench of Sindh High Court has overlooked the inconsistent decisions of the Supreme Court of Pakistan on the same point.
26. ' Besides the case of Asif Ali. Zardari (supra) the case of A. Habib Ahmad v. M.K.G. Scott Christian and 5 others reported in PLD 1992 SC 353 is also referred with an impression that, perhaps, the Supreme Court has changed its previous view regarding the scope of 561-A, Cr.P.C. Their Lordships of the Supreme Court had discussed all the points raised in the case of Ali Hussain and 2 others v.
27. Presiding Officer, Special Court for Offences in Respect of Banks, Karachi and 3 others reported in PLD 1989 Kar.
157. Perhaps such an impression arose on account of the reason that an objection was raised before the Supreme Court that no application under section 249-A, Cr.P.C. Had been moved before the trial Court. Regarding this objection the learned counsel of one of the parties had urged that the Special Court had acted without jurisdiction as the subject-matter of the complaint was not a schedule offence as defined by section 2(d) of Offences in Respect of Banks (Special Court)
28. Ordinance No,IX of 1984, therefore, it was not an obligatory to seek relief under the provision of section 249-A, Cr.P.C. Or 265-K of the Code of Criminal Procedure. Their Lordships allowed the appeal but not on the objection raised by one of the party regarding moving of application under section 249-A, Cr.P.C. Before the trial Court. Therefore, an impression is being drawn by certain persons that the Supreme Court has changed its previous view. However, such an impression is not correct as is clear from the following extracts of the cited judgment:-- "The inherent jurisdiction of the High Court is not an alternative jurisdiction or additional jurisdiction.
29. It is only in the interest of justice to redress grievances for which no other procedure is available.
30. The power given by section 561-A, Cr.P.C. 'not be so utilised as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute.
31. ' The aforesaid view and principle was reiterated by the Supreme Court in other cases as well, which came before it through the jurisdiction of the High Court other than section 561-A, Cr.P.C.
32. They included revisional and writ jurisdictions. See Abdur Rehman Bajwa v. Sultan and 9 others PLD 1981 SC 522 and Abdul Aleem v. Special Judge (Customs), Lahore 1982 SCMR 73. The case of Abdul Aleem had arisen out of a similar case. A learned Special Judge/Customs notwithstanding the legal objections raised from the accused side with regard to the competency of the criminal proceedings before him formally charged the accused. A criminal revision filed by him having been dismissed he sought relief for quashment of the criminal case through a writ petition and the same had to be dismissed mainly on the ground that the High Court would not 'in its discretionary jurisdiction short circuit the normal procedure of trial as provided by law."
8. It is notable that prior to the insertion of section 249-A, Cr.P.C. By the Code of Criminal Procedure (Amendment) Ordinance in 1977, the magistrate had powers. Only to stop proceedings of criminal cases at any stage without pronouncing any judgment either of acquittal or conviction and may thereupon release an accused after recording, the reasons for stopping the proceedings against the accused. However, after the insertion of section 249-A, Cr.P.C. In the Code, they are also empowered to acquit an accused at any stage of the case if after hearing the accused and the prosecution and for reasons to be recorded, they consider that-
(i) The charge against an accused is groundless or.
(ii) There is no probability of the accused being convicted of any offence.
33. ' This section is similar in nature to section 265-K, Cr.P.C. Because the same powers were already available to Sessions Courts. Both these sections run as under:-- "249-A. Nothing in this Chapter shall be deemed to prevent a Magistrate from acquitting an accused at any stage of the case if after hearing the prosecutor and the accused and for reasons to be recorded, he considers that the charge is groundless or that there is no probability of the accused being convicted of any offence.
34. 265-K. Nothing in this Chapter shall be deemed to prevent a Court from acquitting an accused at any stage of the case, if, after hearing the prosecutor. And the accused and for reasons to be recorded, it considers that there is no probability of the accused being convicted of any offence."
35. ' Although section 265-K does not contain the words "If the charge is groundless" as found in section 249-A, Cr.P.C. Yet it cannot be presumed that the Session Courts have no power to acquit an accused if the charge against the accused is groundless.
36. ' In presence of these powers exclusively possessed by Magistrate under section 249-A, Cr.P.C. Or by Sessions Coats under section 265-K, Cr.P.C., if the High Courts start exercising the same powers under section 561-A, Cr.P.C., the such an act would amount to overriding the provisions of such laws. It may not only increase the burden of the superior Courts but can also become a cause of delay in disposing of the matters pending before the trial Courts besides depriving the Magistrate or the Sessions Judges, as the case may be, from their vested powers.
9. In the light of above discussion, the actual scope of section 561-A, Cr.P.C. Can be summarised as under:---
(i) Jurisdiction under this section is not an additional or alternative jurisdiction. Therefore if alternate remedy is available to the applicants/accused, then application under section 561-A, Cr.P.C. Should not be entertained.
(ii) Normally the inherent jurisdiction preserved in this section be invoked in extraordinary.
37. Circumstances.
(iii) The inherent powers of the High Court under this sections are very wide but they are not supposed to be exercised to 'override express provisions of law. Therefore if the legislature has provided certain powers under any provision of law to any particular authority then the High Court would avoid to exercise its powers under this section.
(iv) The High Courts cannot exercise their powers under this section in the matter when these powers have' been expressly taken away by any law.
(v) The High Court can quash the proceedings pending before any Criminal Court if the Court has violated provisions of law by committing incurable irregularities or illegalities as is generally done by most of the tribunals (comprising of S.D.M.'s) while passing orders under Sindh Crimes Control Act by violating sections 4, 5 and 6 of the Act.
(vi) If any Criminal Court passes any order, without having jurisdiction to pass the same, then the High Courts can exercise their powers under this section against such order.
(vii) If any complaint before a Criminal Court requires recording of evidence, then throwing out the proceedings under this section, without giving chance to the trial Court to test the allegations by way of evidence made in the complaint, would not be proper.
(viii) Statements recorded in one case cannot be used to seek quashment of proceedings in other case under this section.
(ix) It is not the intention of law that, in exercise of powers under this section, the normal course of trial in subordinate Courts established by law should be diverted.
(x) The High Courts can exercise their jurisdiction to quash criminal proceeding before a Criminal Court if the Court has started criminal proceeding in a dispute which is of civil nature.
38. ' It may not be presumed that these are the only facts where the High Courts can exercise their jurisdiction under section 561-A, Cr.P.C. Because, as stated earlier the power of the High Courts are much more extensive which can be used (i) to give effect to any order under the code of Criminal Procedure (ii) to prevent abuse of process of any Court or (iii) to secure the ends of justice.
10. On the strength of these reasons, I have no hesitation to hold that a High Court cannot exercise its preserved jurisdiction under section 561-A, Cr.P.C. To provide such relief to any person which can be sought under section 249-A, Cr.P.C. From the Magistrates or under section 265-K, Cr.P.C. From the Session Courts except in the cases of extraordinary nature or circumstances.
39. ' Hence the contention of the learned counsel for the applicants in Criminal Miscellaneous No,98 of 1994 has no force in it and the same is, therefore, repelled. So far as the facts and circumstances of the case are concerned, they do not make any foundation to -attract the jurisdiction of the High Court to exercise its powers directly under section 561-A, Cr.P.C. The prosecution case as narrated in the application is that an accused namely Wahid Bux Jatoi was arrested on spy information from whom 1280 grams of Charas was recovered and was booked in Crime No,29/1994 registered on 13-5-1994 at Police Station Fort Hyderabad under sections 3 and 4 Prohibition (Enforcement of Hudood) Ordinance, 1979 now pending before the Extra Joint Civil Judge/1st Class, Magistrate, Hyderabad. The applicants and four other persons were also booked in the same crime alongwith the said accused. The learned Advocate has brought on record the statements of a witness namely Ali Sher, written in Urdu, as well as its translation in English. The witness has stated that all the accused persons were running a gambling/Manshiat den known as "Assman Club" in Hyderabad. It is a matter of great shock for me that learned Advocate has not brought on record a true translation of the said statement. For example, there is mention of "secret door" in Urdu version but the word "secret" is not found anywhere in the translation. Similarly the translation of following Urdu version is totally missing.{{URDU TEXT}} ' Such kind of translation could easily misguide the Court. If I had not gone through the Urdu version as well as its English translation. Notwithstanding to such conduct of the learned Advocates I decided to find out some force from the facts to exercise my powers under section 561-A, Cr.P.C.
40. The learned Advocate had stated in the application that witness Ali Sher is a police tout and his statement under section 161, Cr.P.C. Had been wrongly and irregularly taken into consideration by the police. I think that neither the Judges of the High Courts are supposed to possess any mystical or magical forces or supernatural and spiritual powers on the basis of which they could know the character of any witness without any evidence nor the High Courts are supposed to perform the duties of Magistrates or Sessions Judges to record evidence of a case to find out the truth and the falsehood of a witness. This duty has to be performed by the trial Court only to find out whether any person is a tout of police or a hired witness. Similarly the learned counsel also failed to point out any illegality or irregularity committed by the prosecution in recording the statement of the witness under section 161, Cr.P.C. As alleged by him. Even otherwise the allegations levelled by the learned counsel against the prosecution can only be tested on the anvil of evidence only which has not been recorded by the trial Court. Under such circumstances I am unable to persuade myself to exercise my powers under section 561-A, Cr.P.C. To quash the proceedings against the applicants.
41. However,- they are at liberty to move such application under section 249-A, Cr.P.C. After some evidence is recorded or at any stage of the case, if they so desire or advised.
42. ' So far as the case of applicant Gulzar Ali in Criminal Miscellaneous Application No,16 of 1994 is concerned, the same is totally on different footings. He was declared absconder in a Crime arising out of an F.I.R. No,31/88 under section 302/34, P.P.C. Registered at Police Station Phul Hadiyoon in which four persons namely Soomar, Muhammad Hassan, Hashim and Allah Dino had been arrested and tried by the learned Additional Sessions Judge, Sanghar. Soomar was convicted and sentenced under section 301(1), P.P.C: to undergo R.I. For 10 years and fine of Rs,50,000 on the basis of his judicial confession, the only piece of evidence against him which was relied upon by the trial Court, while the remaining three accused had been acquitted by the said Court. The convict Soomar preferred an appeal bearing Appeal No,94 of 1991 which was allowed by the High Court of Sindh because his judicial confession was found unreliable by the High Court. Mr. Rochi Ram the learned counsel for the applicant Gulzar Ali, pointed out that there is no evidence against the accused/applicant Gulzar Ali except the same judicial confession of main accused Soomar in which he had stated that: "I and my friend Gulzar Ali killed both Kazi Kamaluddin and Mst. Dhanjani."
43. ' Therefore, if the said judicial confession has not been relied upon by the High Court against the main accused, it cannot be relied. Upon by the trial Court against .Applicant Gulzar Ali too. These were the circumstances that he directly approached the High Court under section 561-A, Cr.P.C. For quashment of proceedings against Gulzar Ali instead,of moving any application under section 265-K, Cr.P.C. Before the trial Court.
44. I am fully convinced that under such circumstances, continuation of proceedings before the trial Court against accused/applicant Gulzar Ali would be merely iteration of proceedings with undoubtable and unquestionable certainty of antecedent resilience of acquittal. Thus, sequel of such proceedings would mean nothing but a futilous exercise.
11. Resultantly I dismiss Criminal Miscellaneous Application No,98 of 1994 moved on behalf of appellants Moeenuddin alias Muna son of Islamuddin and Aslam son of Punj Rang but allow Criminal Miscellaneous Application No,16 of 1994. The applicant/accused Gulzar Ali is directed' to be released forthwith if not required in any other case.