Applicant Saleem son of Adam has moved this Cr. Misc. Application under provisions of section 561-A, Cr.P.C. Requesting that the case pending against him before the 1st. Additional Sessions Judge, Karachi (West), may be quashed.
2. The case against the applicant was the result of F.I.R. Registered at P.S., Saeedabad, District Karachi (West), which was lodged by S.H.O. Syed Saleem Hussain Shah, Sub-Inspector of Police.
3. The facts of the prosecution case in nutshell are to the effect that Syed Saleem Hussain Shah was informed by A.S.I.P. Ishaque Lodhi that firing between two groups of boys belonging to the MQM and PPI was taking place. On hearing this report Syed Saleem Hussain Shah, SHO, alongwith Sub--- Inspector of Police Muhammad Aslam in company of the police constables Abdul Quddoos, Faiz Ahmed, Muhammad Rasheed and Zafar Iqbal proceeded to the area. On reaching the place of incident the police noted that A.S.I.P. Ishaque Lodhi alongwith his police party had also reached.
They learnt that during the night between 21-22 of August, 1994 boys belonging to MQM group had burnt the party flag of PPI. As a result of that incident at about 3-00 p.m. On the day when the police had received the information of firing, the two groups had started firing against each other.
As a result of the firing Abdul Hadi, Ghulam Rasool, Shaukat and Muhammad Zahid had received bullet injuries. It was also mentioned in the F.I.R. That 30 persons from the side of MQM and 8 persons from the side of PPI were firing at each other apart from some other unknown persons with each party. The names of 30 persons and 8 persons from MQM and PPI were given in the F.I.R. And the name of the applicant is not among the list of the persons who were identified or named in the F.I.R. On the arrival of the police, it is stated that the parties, who were firing at each other also fired at the police but when the police retaliated to the firing in their defence the boys ran away in the streets. The police registered a case under sections 147,148, 149, 435, 353, 332 and 324, P.P.C. The police started conducting the investigation and after 5 days of the incident the police managed to arrest accused Shakeel. It is stated in the police case that when the accused Shakeel was arrested, the present applicant Saleem was also found standing with him. On that account the present applicant Saleem was also arrested and finally involved in this case. The case has not yet proceeded although police has finally challaned the case and at present the trial is taking place in the Court of 1st Additional Sessions Judge, Karachi (West).
An application under section 265-K, Cr.P.C. On behalf of the present applicant was moved before the trial Court and it was urged before the trial Court that there was no allegation of any kind against the present applicant in the case so that he should have been made accused by the police and, therefore, the proceedings against the applicant would amount to abuse of the process of law.
However, the trial Court rejected the application under section 265-K, Cr.P.C on 8-2-1996. On 28-2- 1996 the present application under section 561-A, Cr.P.C. For quashment of the case against the applicant was moved before this Court. Learned counsel for the applicant urged that the name of the applicant did not appear in the F.I.R. Although names of 30 persons belonging to MQM have been mentioned while names of 8 persons from the rival group are also mentioned in the F.I.R.
Secondly, it was argued that during the entire investigation the police did not find any evidence against the applicant of having participated in the alleged incident and the learned counsel pointed out that in the statements recorded under section 161 no witness has mentioned the name of the applicant or pointed towards him of anything incriminating in any manner. In other words the contention of the learned counsel for the applicant is that there is complete lack of accusation of any kind against the applicant in this case. Learned State Counsel assisted the Court in scrutinizing the police record in respect of this case and he conceded that neither the name of the applicant appears in the F.I.R. Nor he has been named by any of the witnesses in their statements under section 161, Cr.P.C. Nor police has collected any circumstantial evidence against the applicant. Learned State Counsel very frankly conceded that under the circumstances if the case against the present applicant is allowed to remain on record, it will amount to abuse of the process of law and that in no case the trial against the applicant can result in his conviction in the present case. .
It appears that the applicant has been involved merely finding him standing alongwith the co- accused Shakeel, whose name appeared in the F.I.R. And on his arrest he was found in possession of an unlicensed pistol. Making this circumstance as the reason for involving the present applicant in this case, the police had mentioned the name of the present applicant after arresting him in the charge-sheet and, therefore, the applicant is facing the trial. Learned counsel for the applicant has relied upon the case of Syed Muhammad Owais Shibli v. The State reported in 1995 M LD 532 and the case of Muhammad Sadiq Umrani v. Government of Sindh reported in PLD 1993 Karachi 735.
The principle laid down in the above cases as well as in other cases decided by the superior judiciary is that if from the F.I.R. And other evidence collected by the Investigating Agency there appears no possibility that the case against the applicant will result in conviction; the proceedings will amount to abuse of the process of law and, therefore, invariably such proceedings have been quashed by the High Court under the provisions of section 561-A, Cr.P.C.
6. I am satisfied that there is no evidence collected by the police against the applicant and the only circumstances against him proved from the police record is that he was standing alongwith the co-accused Shakeel at the time of arrest of Shakeel. He was neither armed nor he has shown to have taken any part in the incident. There is no allegation of any nature in the 161, Cr.P.C.
Statements of the witnesses against the applicant as pointed out by the learned counsel for the State. I, therefore, have come to the conclusion that allowing the applicant to face the trial in the above case will amount to abuse of the process of law. Therefore, I find that the case against the applicant is liable to be quashed. Consequently, this Cr. Misc. Application is allowed and it is directed that the name of the applicant may be excluded from the list of the accused in the above case and the case against him stands quashed.