' This judgment shall dispose of Criminal Miscellaneous No,128/Q of 1995; Criminal Miscellaneous No,129/Q of 1995; Criminal Miscellaneous No,130/Q of 1995; Criminal Miscellaneous No,131/Q of 1995; Criminal Miscellaneous No,132/Q of 1995; Criminal Miscellaneous No,133/Q of 1995; Criminal Miscellaneous No,134/Q of 1995; Criminal Miscellaneous No,135/Q of 1995; Criminal Miscellaneous No,136/Q of 1995 as the question involved is common in all.
2. Brief facts giving rise to the filing of the aforereferred petitions are that on 28-8-1990, a raiding party headed by a Magistrate consisting of police officials from various police stations, namely, Malik Abdul Aziz, D.S.P; Zulfiqar Ali, 5.-I.; Muhammad Latif, A.S.-I.; Waqar Javed, A.S.-I.; Tariq Nadeem, Constable; Muhammad Azam, Constable; Bashir Ahmad, 5.-I.; Khalid Mehmood, S.-1.; Abdul Razzaq Head Constable; Sohail Ahmad, 5.-I.; Tariq Mehmood 5.-I.; Muhammad Hussain Constable; Sarfraz Constable; Tasneem Ghani, S.-I. Malik Nadeem, A.S.-I.; Muhammad Sharif Mushtaq Constable; Ansar Ali Constable; Mirza Azfar Alam, Inspector; Yousuf, A.S.-I., Muzaffar Ahmad, Constable; Shaukat Javed, S.-I.; Fiaz Ali, A.S.-I.; Nathay Khan, Constable; Amanat Ali, Head Constable; Pervaiz Ahmad, Constable; Muhammad Yasin and Sultan Ali, Constables was constituted which conducted raid on the house of the petitioners and in terms of the different contraband items recovered and transaction involved, the following F.I.Rs, were registered:--
(i) F.I.R. No,230, dated 27-8-1990 Police Station Nekapur Offence under section 3/4, Prohibition (Enforcement of Hadd) Order, 1979 (Criminal Miscellaneous No,128/0 of 1995).
' In this case, Arshad Zubair petitioner tried to run away alongwith a small packet and on being apprehended the said packet contained four packets of heroin; a klashnikov alongwith magazine.
(ii) F.I.R. No,229, dated 27-8-1990 Police Station Nekapur Offence under section 3/4, Prohibition (Enforcement of Hadd) Order, 1979 (Criminal Miscellaneous No,129/0 of 1995).
' In this case, it was alleged that a raiding party consisting of the police officials mentioned in the F.I.R., Abdul Razzaq was sent in plain clothes, to the house of the petitioner Arshad Zubair as a fake customer with tainted currency notes of Rs,500 and Rs,100 respectively; who purchased 40 grams of heroin and produced it before Ijaz Akbar M.I.C. Whereafter the raiding party was despatched to conduct the raid at the house in question. At the time of the raid, the petitioner Arshad Zubair, Mst.
Sakina and Muhammad Sharif tried to run away with small packets but they apprehended the packets containing heroin.
(iii) F.I.R. No,201, dated 27-8-1990 Police Station Civil Lines Offence under section 3/4, Prohibition (Enforcement of Hadd) Order, 1979 (Criminal Miscellaneous No,130/Q of 1995).
' This case was registered at the report of Ijaz Akbar, M.I.C. It was alleged that Arshad Zubair petitioner on being apprehended during investigation, disclosed and led to the recovery of six kilo heroin; six maunds of Charas and a .12 bore gun. He further disclosed that in the said house, the tenants of the petitioner namely Nazim-ud-Din and Rifaqat were preparing small packets of heroin and on pointation of petitioner, they were arrested red-handed and small packets of heroin were recovered from them which were sent to the Chemical Examiner.II
(iv) F.I.R. No,202, dated 27-8-1990 Police Station Civil Lines Offence under section 13, Arms Ordinance 1965 (Criminal Miscellaneous No,131/0 of 1995).
' The petitioner Arshad Zubair, the same day led to the recovery of .12 bore gun for which he had no licence. Hence the aforereferred case under section 13 of the Arms Ordinance was registered.
(v) F.I.R. No,203, dated 27-8-1990 Police Station Civil Lines, Sialkot Offence under section 3/4, Prohibition (Enforcement of Hadd) Order, 1979 (Criminal Miscellaneous No,132/0 of 1995).
' The 'same evening, Arshad Zubair petitioner during investigation disclosed that he and his father were involved in drug trafficking; that his brother-in-law Mushtaq and his sister Shahida had kept opium in their house. On his pointation, a raiding party was sent which recovered opium weighing 40 kilograms.
(vi) F.I.R. No,280, dated 27-8-1990 Police Station Rangpura Offence under section 3/4, Prohibition (Enforcement of Hadd) Order, 1979 (Criminal Miscellaneous No,133/0 of 1995).
' Arshad Zubair petitioner son of Akhtar Adil petitioner disclosed that heroin was lying in his car LOB 9856 and on his pointation, heroin weighing 2 kilograms was recovered.
(vii) F.I.R. No,240, dated 9-9-1990 Police Station Nekapura Offence under section 13, Arms Ordinance, 1965 (Criminal Miscellaneous No,134/() of 1995).
' In this case, it is alleged that petitioner Arshad Zubair led to the recovery of a pistol for which he had no licence.
(viii)F.I.R. No,194, dated 16-9-1992 Police Station Nekapura Offence under section 3/4, Prohibition (Enforcement of Hadd) Order, 1979 (Criminal Miscellaneous No,135/0 of 1995).
' In this case, the allegation is that on a source report that Akhtar Adil petitioner was selling heroin, a raiding party was constituted who kept a watch outside the house of the petitioner and at about 6- 00 a.m. Petitioner was seen selling heroin. He was apprehended alongwith heroin.
(ix) F.I.R. No,195, dated 16-9-1992 Police Station Nekapura Offence under section 3/4, Prohibition (Enforcement of Hadd) Order, 1979 (Criminal Miscellaneous No,136/Q of 1995).
' On 16-9-1992, on a source report sent by one Sarfrazul Haq Inspector, Excise Sialkot that petitioner Arshad Zubair who was a notorious drug smuggler and that on the said date, he was bringing heroin in a car bearing No,LOB 9856, a raiding party was constituted headed by Khyzer Hayat Bhatti, A.E.T.O., Sialkot. The Taxation Officer at the pointed time, intercepted the said vehicle, which was being driven by Arshad Zubair the petitioner. 100 grams of heroin was recovered from the said car.
(x) F.I.R. No,231, dated 27-8-1990 Police Station Nekapura Offence under section 13, Arms Ordinance 1965 (Acquitted by the Honouable Supreme Court and the judgment is reported as 1993 SCMR 2059.
' Challan with regard to recovery of klashnikov and live cartridges was submitted in which ultimately conviction was recorded; appeal was dismissed but the Honourable Supreme Court set aside the conviction and the judgment is reported SCMR 1993 page 2059.
(xi) F.I.R. No,232, dated 27-8-1990 Police Station Nekapura Offence under section 3/4, Prohibition (Enforcement of Hadd) Order, 1979. (Acquitted by the trial Court under section 249-A, Cr.P.C.
(xii) The petitioner was acquitted by the learned trial Court under section 249-A, Cr.P.C. It was a case in which one kilograms of heroin was recovered from the accused Mst. Sakina Bibi.
3. In support of his prayer for quashment, learned counsel for the petitioners had made following submissions:--
(i) That enmity existed between the petitioner and the police and no reliance can be placed on their testimony in absence of public witness.
(ii) that the evidentiary value of the prosecution witesses has been commented upon by the Honourable Supreme Court in case F.I.R. No,231 of 1995, dated 27-8-1990 Police Station Nekapura in which the conviction of the petitioner Arshad Zubair was set aside and the case is reported in Arshad Zubair v. The State 1993 SCMR 2059. There is no probability of conviction on the same set of evidence in the remaining cases and, therefore, the pendency of the proceedings would tentamount to an abuse of the process of the Court;
(iii) that the learned trial Court has already acquitted the petitioner in case F.I.R. 232, dated 27-8- 1990 under section 249-A, Cr.P.C. And there is no probability of conviction in the remaining cases either as the evidence was the same.
4. Learned Advocate-General, Punjab assisted by Special Public Prosecutor have opposed the prayer for quashment by submitting as follows:--
(i) that the judgment in case F.I.R. No,231, dated 27-8-1990 reported in Arshad Zubair v. The State 1993 SCMR 2059 was passed in appeal after proper appreciation of evidence and the said judgment cannot form basis for acquittal in those cases in which prosecution witnesses have not been recorded so far;
(ii) that the veracity of the conflicting reports of the Chemical Examiners qua the heroin recovered shall be gone into by the trial Court and cannot form basis for quashment of proceedings;
(iii) that petitioner filed Criminal Miscellaneous No,150/Q of 1991 seeking quashment of the aforereferred cases which was dismissed by this Court vide judgment, dated 18-6-1991, he was, therefore, estopped to file the instant petitions as the said judgment attained finality;
(iv) that petitioner are not appearing before the trial Court; they are absconders; petitioner Arshad Zubair is also involved in two murder cases, namely, F.I.R. No,41, dated 1-2-1989 Police Station Lalamusa and case F.I.R. No,149, dated 31-5-1994. He is a proclaimed offender in the latter case.
5. I have heard learned counsel for the petitioner, learned Advocate- General, Punjab, assisted by Special Public Prosecutor and have given anxious thoughts to the arguments addressed at the Bar.
6. Section 561-A, Cr.P.C. Provides an exceptional remedy which can be resorted to, to secure the ends of justice for which no procedure is available under the Code. The inherent powers have been enshrined in law to meet the lacuna in the Criminal Procedure Code in extraordinary circumstances and are not intended for vesting this Court with power to make any order which it considers to be in the interest of justice. The paramount consideration to justify exercise of the power under this provision is to prevent the abuse of the process of any Court or to secure the ends of justice where no other remedy is in sight. The power to quash criminal proceedings pending before a Court are available to this Court but before such action is taken; this Court has to examine the complaint to determine as to whether any offence is made out or not and in such an exercise this Court shall attend to the factors which are germane to the point in issue. This Court can also look into the cogent material brought on record to see as to whether the proceedings hove been initiated for mala fide reasons merely to harass the accused or that the continuation of those proceedings would not be an abuse of the process of the Court. This Court may annul the proceedings if after going through the complaint or the report under section 173, Cr.P.C. And the material on record, it comes to the conclusion that the accusation does not disclose commission of any offence. The criterion to be followed by the Court in this context would be that the allegations in the complaint taken at their face value and accepted in their entirety, no offence is made out or where the prosecution on the face of it is illegal.
7. Analysing these petitions in the light of the aforereferred parameter of section 561-A, Cr.P.C. I find that all the F.I.Rs, except F.I.R. No,194, dated 16-9-1992 (Criminal Miscellaneous No,135/Q of 1995) and F.I.R. No,195, dated 16-9-1992 (Criminal Miscellaneous No,136/Q of 1995) were registered on 27-8- 1990 at Police Station Nekapura wherein the allegation is that the District Magistrate, Sialkot had been receiving complaints about the drug trafficking of petitioner and his family. On a source report, a raiding party was constituted consisting of Magistrate Liaqat Ali and other police officials from various police stations. One Abdul Razzaq Constable was sent in plain clothes to the house of the petitioner as a fake customer with tainted currency notes of Rs,500 and Rs,100 respectively who purchased 40 grams of heroin, returned and produced the same before the Magistrate who was heading the party whereafter the raid was conducted at the house in question. The petitioner Arshad Zubair, Mst. Sakina and Muhammad Sharif accused tried to run away with small packets; they were apprehended, various articles were recovered and on the basis of the transactions involved different F.I.Rs, were registered. A bare reading of the contents of the F.I.Rs,; statements recorded under section 161, Cr.P.C. And the reports prepared in these cases under section 173, Cr.P.C. Would show that a prima facie case is made out against the petitioner and the other accused named therein. The proceedings, therefore, neither disclose any illegality nor an abuse of the process to warrant interference.
8. Mr. Muhammad Asif Saeed Khan Khosa, Advocate, with his characteristic eloquence has referred to Arshad Zubair v. The State 1993 SCMR 2059 to bring home the point that recovery of kalashnikov and live cartridges in one of the cases registered on 27-8-1990 was proved; conviction was recorded by the trial Court, the same was upheld by the High Court but the Honourable Supreme Court allowed the appeal set aside the conviction with the observation that, "Not only the legal requirements remain unsatisfied for making the recovery redible, all the witnesses in spite of being Magistrate and being Police Officers were highly inimical and biased on account of their previous involvement in the proceedings and their testimony would not independently satisfy any judicial forum for recording the conviction. It was necessary that Mr. Aamir ljaz Akbar and Tasneem Ghani should not have been participated in the proceedings and should have informed the Deputy Commissioner of their involvement against the appellant to get themselves substituted by more unconcerned officers."
' The aforereferred observations of the Honourable Supreme Court according to Mr. Khosa, have given a fatal blow to the prosecution case and continuation of proceedings in the remaining cases quashment of which is sought would tentamount to an abuse of the process of the Court. I am afraid, the argument of the learned counsel is not tenable for following reasons:--
(i) The aforereferred judgment of the Honourable Supreme Court was given in appeal where evidence had already been recorded. Taking note of the complaint and the petitions filed by the petitioner against certain officials who appeared as prosecution witnesses in that case and after considering the discrepancies in their statements, the Court gave credence to the allegations of mala fides against those prosecution witnesses who were examined in Court. In para. 21 of the judgment while commenting on the quality of the evidence, the Court observed as under:-- 'The discrepancy between the two statements is obvious and it cannot be said that the recovery had not taken place during the course of the search' of the house so as to make section 103 inapplicable to the proceedings.'
' The discrepancy with retard to the recovery of one item (klashnikov) - would not necessarily mean that the evidence which is yet to be recorded would be discrepant qua other recoveries. The Honourable Court has expressed opinion about Aamir Ijaz Akbar, Magistrate and Tasneem Ghani a Police Officer but there are other material witnesses who were not examined and other incriminating evidence was not produced during the trial in the said case. The evidence yet to be recorded is; witnesses Liaqat Ali, Magistrate; Abdul Aziz, D.S.P. And one Razzaq, Constable who was sent as a fake customer; recovery of tainted notes from the person of Arshad Zubair; recovery of car bearing No,LOB 9856 on the pointation of the petitioner and arrest of Nazim-ud-Din and Rifaqat Ali, the tenants of the petitioner (while they were taking heroin) and the reports of the Chemical Examiner. The aforereferred pieces prosecution evidence were not produced during trial in the case in which the Honourable Supreme Court had ,illowed petitioner's appeal and acquitted him and thus have not been commented upon so far.
(ii) The principles for appreciation of evidence during trial and appeal are distinguishable from the principles which weigh with Court while exercising powers under section 561-A, Cr.P.C.
(iii) Learned counsel for the petitioner mainly relied upon the observation of the Honourable Supreme Court on the factual plane. The fact in issue in the said case was recovery of klashnikov and live bullets, which is not a fact in issue in the pending cases quashment of which is sought. Any finding on a fact in issue in the said case cannot be used to prove an issue in other cases. That being so, the judgment of the Honourable Supreme Court is not relevant. I am fortified by a judgment of the Honourable Supreme Court in Muhammad Khurshid v. The State PLD 1963 SC 157 wherein at page 162, it was observed as under:-- ' For the reasons given above we are in agreement with the High Court that the judgments were inadmissible either to prove the opinion of the learned Sessions Judge concerning the conduct of the Border Police or for impeaching their credit. The Evidence Act does not make findings arrived at on the evidence before the Court in one case evidence of that fact in another case. Each case is to be judged upon its own facts established by the evidence led therein' ."
9. Coming to F.I.R. No,194 of 1995, dated 16-9-1992 (Criminal Miscellaneous No,135/Q of 1995) and F.I.R. No,195, dated 16-9-1992 (Criminal Miscellaneous No,136/Q of 1995) I find that in these cases as well, the report under section 173, Cr.P.C. Does disclose, commission of a cognizable offence; the"raiding party consisted of officials from various police stations who participated in the raid conducted on 27-8-1990 and in fact these cases were registered on the report of Sarfraz-ul-Haq grounds of mala fides and enmity against the witnesses in these cases is not available to the petitioner.
10. The record of the learned trial Court, indicates that the petitioner Arshad Zubair absented himself from appearance before the said Court since 23-6-1994; he was proceeded 'under section 87, Cr.P.C. And declared a proclaimed offender vide order of the learned trial Court, dated 19-2- 1996. So far his absconsion in the murder cases to which reference has been made by the learned Advocate-General is concerned, in absence of any material on record, I would not like to comment lest it may prejudice the case of either side. As per the trial Court he is fugitive to law. This conduct also disentitles him to the relief sought.
11. There is yet another reason for which the instant petitions are not maintainable. The petitioner had moved an application under section 265-K, Cr.P.C. For his acquittal, the same was dismissed whereafter he filed Criminal Miscellaneous No,150/Q of 1991 seeking the same relief which too was dismissed by this Court and it was observed that:-- "Serious allegations have been levelled against the petitioner inasmuch as six killos and 40 grams of heroin, Charas and opium was recovered from his possession in presence of the witnesses.
Statements of witnesses under section 161, Cr.P.C. Were also recorded. There is also a report having been obtained by the Investigating Officer showing the result of the Chemical Examiner as positive as already said above."
11. For aforereferred reasons, I see no merit in these petitions which are dismissed. However, in view of the peculiar facts and circumstances of these cases, I am persuaded to direct the trial Court to conclude the trial within a period of six months from the next date before it. The petitioner shall appear before the trial Court on the said date. Office shall send a copy of this judgment to the trial Court forthwith.