ALI MUHAMMAD BALOCH, J.- By this application under Section 561-A Cr.P.C, applicant Ghulam Hussain has prayed for quashment of a criminal case pending against him in the Court of Addl.
Sessions Judge, Malir, Karachi.
2. The facts of the case relevant to this application in short are that on 27- 2-1994 Anwar Ahmed Khan, SHO, PS Gadap, Karachi, reported that when he alongwith Syed Ghazanfar Ali Kazmi, A.S.I.P, and some other members of his staff were busy in checking the vehicles at the Army Check Post at Toll Plaza, a vehicle with three persons riding in it was checked. 71 Kgs. Of heroin concealed in 71 cloth bags covered with plastic cover bearing a particular stamp, were found laying concealed in a secret compartment between the to rear seats of that vehicle. Memo, of the recovery of the said heroin was prepared in presence A.S.I. Syed Ghazanfar Ali, P.C. Muhammad Din and P.C. Khair Muhammad. The vehicle was taken into possession and the person riding in the vehicle were arrested. They are Abdul Mannan, Karamat Hussain and Bakhtiar Ali. The case was registered for an offence punishable under Articles 3, 4 of Prohibition (Enforcement of Hadd) Order, 1979. On interrogation the accused disclosed that the heroin originally belonged to other persons, namely, Hanif Gul, Baidar, Bashir Ahmed Malik and some others, who were living in House No. A/187, Block-17, Federal B-Area, Karachi and that some quantity of heroin was also available in that house. The police thereafter on the same day raided the house No. A/187 and arrested Arshad Zaman, Gul Qayum Shah, Jamshed Khan, Nawaz Khan, and also recovered about 7 Kgs., of heroin powder from the house and sized a car standing in the house. The police after investigation has, however, produced a challan of the ease, in which the accused Abdul Mannan, Karamat Hussain and Makhtiar Ali are shown as accused while the present applicant Ghulam Hussain, who is an Assistant Excise Officer in the Excise Department, Government of Sindh, was shown as absconder.
The applicant on knowing that he has been shown as absconder surrendered himself in the Court of Sessions Judge and was granted pre-arrest bail and thereafter was facing the trial. He moved an application under section 265-K, which was rejected. Thereafter the present Crl. Misc.
Application under section 561-A Cr.P.C, has been filed.
3. The contention of the applicant Ghulam Hussain was that in fact the Excise Police on an information that a huge quantity of heroin was being brought to City had laid a trap on Super Highway on 26-2-1994 at about 6.00 a.m. Which continued upto at about 3.30 p.m. When the vehicle coming to Karachi was spotted by the Excise Police. The Excise Police tried to stop that vehicle but the driver did not stop. The vehicle was given a chase and finally when the vehicle reached at Toll Plaza near Karachi, the Excise Police captured it and to persons siting in the vehicle were arrested and handcuffed on the spot. Before the Excise Police could further proceed in the matter, the Army Personnel, who were performing their duties at the Check Post at Toll Plaza, intervened and took the custody of the handcuffed men as well as the vehicle from the custody of the Excise Police and on discovering that heroin was concealed in the vehicle, they took it on themselves to be the persons who discovered the heroin and calling the police of Gadap Police Station they got the case registered as disclosed above. This happened on 27-2-1994 in the early hours of the day i.e. 3.00 a.m.
4. After about 2 weeks i.e. On 16-3-1994 Gadap Police produced the arrested accused, namely, Abdul Mannan, Karamat Hussain and Bakhtiar Ali before a Magistrate First Class, who recorded their confessional statements. In the confessional statements of the accused, they disclosed that they had started their journey from Peshawar wherefrom they were bringing the heroin in the vehicle for its delivery in Karachi in Bungalow No. A-187, Block 17, F.B. Area, Karachi. They were checked and detected at the Toll Plaza at the Army Check Post. They also stated that some distance prior to their reaching Toll Plaza at "Kathore More" a car met them which, according to the accused, belonged to Excise Police and that it had come to provide them cover and take them to their destination. They further disclosed that as soon as they stopped their vehicle at the Army Check Post at Toll Plaza, the car said to be belonging to Excise Police and said to be driven by the present applicant, sped away and thus they were captured by the staff at the Army Check Post.
5. Thus, on the basis of the three confessional statements of the accused the applicant was challaned in the case. However, the story does not end here. On the same day i.e. 27-2-1994 the Excise Department claimed that they were deployed on Super Highway on 26-2-1994 from 6.00 a.m. On the spy information that such vehicle was likely to arrive. On 26-2-1994 at 3.30 p.m. When they noticed the vehicle and they signalled it to stop the vehicle did not stop. They chased it and when they succeeded in stopping it near the Check Post at Toll Plaza, they arrested the to persons sitting in the vehicle and handcuffed them and wanted to proceed further when the Army Personnel intervened and took away the vehicle and the persons arrested by them. This fact was communicated by the applicant in writing to the Director General, Excise & Taxation Department, Karachi, through a letter dated 27-2-1994. On the basis of such information, the Secretary, Excise & Taxation Department, Mr. Masood Alam Rizvi wrote a D.O. Letter to Mr. Afzal Ali Shigri, the Inspector General of Police Sindh, Karachi, telling him that the efforts of the Excise Department in detecting the vehicle with heroin had been hijacked and belittled by the Police Department, who had registered the case at the instance of the Army and taken over the detected vehicle. The Inspector General of Police on receiving such letter had also communicated to the Deputy Inspector General of Police by enclosing a copy of such letter, but it appears that since the Gadap Police had produced a challan before the trial Court no further action could be taken by the Police and the matter was left in the Court to be decided.
6. The main contention of the learned counsel for the applicant is that there is absolutely no evidence of any kind against the applicant worth his involvement, as stated by the police except the judicial confessions of the three co-accused, which to were recorded after to weeks of the arrest. The contention further is that the police having failed to collect any other evidence which may be corroborated by the confessional statements, it cannot be said that the case against the applicant can result into conviction. The argument of the learned counsel for the applicant is that if the prosecution case as it stands is taken to be true, still it cannot result into conviction of the applicant as the confessional statements of the co- accused alone cannot be made basis of conviction of the applicant. The learned State Counsel has endorsed the view of the learned counsel for the applicant and candidly conceded that this is a fit case where the proceedings against the applicant should be quashed by exercising powers under Section 561-A Cr.P.C, as he had scrutinized the entire police file and had found that excepting the word in the confessional statements of the co-accused, there was no further evidence of any nature against the applicant to find his implication in the ease.
7. I have given due consideration to the arguments of the learned counsel and have also gone through the confessional statements of the three accused, the 161 statements of the member of the police party, who are said to be present at the time of the incident at the Army Check Post near Toll Plaza, in whose presence three applicants were said to be arrested by the police alongwith the vehicle, wherefrom the heroin was recovered. In the confessional statements, all the three accused stated that as soon as their vehicle had stopped at the Army Check Post and they were approached by the Police party and the Army Officers, the applicant had introduced himself as Excise Inspector to the Army and the Police personnel and disclosed that he had discovered the vehicle in dispute on the spy information and that he was taking the vehicle with himself but thereafter since the police and the Army personnel took over the vehicle he escaped from there and did not stay there. This part of the story is missing from the statements under section 161 Cr.P.C, of P.Ws. P.C. Khair Muhammad, P.C. Muhammad Din and A.S.I.P. Syed Ghazanfar Ali, Kazmi, who are the main witnesses of the police and were examined according to the record on 27-2-1994 during investigation by SHO Anwar Ahmad Khan of P.S. Gadap. None of these police witnesses in their 161 statements have disclosed of the presence of the applicant or any Excise Inspector with a car or the escape of any such person from that place on refusal by the Army personnel and Police personnel to allow him to take away the vehicle.
8. It is apparent that investigation has been completed and whatever evidence is available with the prosecution has been disclosed. The learned State counsel on the basis of such position has conceded that this is a fit case for quashment of the proceedings against the applicant.
9. As regards the evidence of the co-accused in their confessional statements against the applicant the Federal Shariat Court in the case of Arif Nawaz Khan & J others. v. The State, reported in PLD 1991 Federal Shariat Court page 53 has held that under Islamic Jurisprudence, the confession implicates the maker thereof, but not the co-accused even though the maker has implicated himself as the co-accused, unless there is other proof against the co-accused. It has been held in this case that such confession is considered as "Qarinah" i.e. a circumstantial evidence, and it can be made basis for conviction only when it is corroborated by other independent evidence. While giving reasons for such conclusion the learned author of the judgment Mr. Justice Tanzilur Rehman, as he then was, had held that the accused confessing his crime becomes 'Fasiq' and ceases to be 'Adil' and thus his evidence is not acceptable against co-accused unless corroborated by other independent evidence. It was also held that such evidence is akin to corroborative evidence and, therefore, cannot be the sole basis of conviction.
10. Thus, it is necessary to find out in this case if there is any other evidence against the applicant excluding the judicial confession of the co-accused. Neither the record shows the presence of other independent evidence against the applicant nor the learned counsel for the State is aware of it inspite of his having sought instructions from the investigating officer. No doubt, there is an allegation which, if believed, could constitute an offence against the applicant. Whether under such circumstances in presence of the allegations which, if believed, could constitute an offence, the proceedings at the pre-mature stage as in present case ought to the quashed? The answer to this question is found in the case of Mst. Hamida v. The State & another, reported in PLD 1973 Karachi 478, the judgment of which was delivered by Justice Tufail Ali A. Rehman, the then Chief Justice of this Court. In order to appreciate the view of the learned Judge, paragraph No. 5 of the above judgment is quoted here verbatim:- "5. It was argued before me by the learned counsel for the respondent No. 2 Mr. Muhammad Sulaiman Qureshi and the Assistant Advocate- General who appeared for the State that so long as there is an allegation which, if believed, could constitute an offence, I ought not to quash such proceedings at the premature stage but allow them to go to trial the result depending upon the appreciation of the evidence that is recorded at the trial. Now while I agree that the most usual case which would call for quashment under section 561-A of the Cr.P.C, would be a case whether the allegations themselves may constitute no offence at all, that section in its on term does not state anything of the kind. Indeed as I understand that section purports to give no new powers to the High Court but re-affirms an inherent power already existing "to give effect to any order under this Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.
Obviously to permit a prosecution to continue upon allegation which do not constitute an offence can only be an abuse of process but it does not. I think follow that whenever such an allegation exists, however, flimsy the evidence which supported it and however transparently dishonestly the allegation is made the Court must stand by and allow obviously innocent person to suffer all the agonies of a trial often prolonged in the matters. I cannot but think that if a case which cannot possibly succeed is allowed to continue this must result in harassment of the * ' accused persons whose acquittal is in the way certain and that this would be an abuse of the process of the Court and that in any event under Section 561-A in order to quash the proceedings would be one which would secure the ends of justice. The ends of justice do not I think contemplate the force of a trial which can result in an acquittal only."
11. As already discussed in the case of Arif Nawaz Khan, the confession of the co-accused without presence of any supporting evidence cannot be made basis of conviction, I hold that if the case against the applicant is allowed to go to the trial, cannot result in conviction. Hence the ends of justice in such case require that such proceedings should be quashed.
12. Yet another case is the case of Mst. Zaitoon V. The State and another reported in 1979 P.Cr.L.J.
279, wherein when an opinion was formed that the charge was not likely to succeed and the accused was found to be entitled to be acquitted, the continuity of the proceedings in such case was found to be an exercise in futility and the case against the applicant was quashed.
13. In the case of Pir Mazharul Haq v. The. State, reported in 1992 P.Cr.L.J. 1910, a Division Bench of this Court, consisting of Justice Nasir Aslam Zahid, the then Chief Justice of this Court and Justice Nazim Hussain Siddiqui, it was held that the confession of co-accused after the promulgation of Qanoon-e- Shahadat Order, 1984, which was a proof against the person making it but as against the persons, who were being tried jointly for the same offence, it was taken into consideration as "a circumstantial evidence". It was held in the above case that in the absence of any other evidence available with the prosecution at that stage, no conviction can be sustained.
14. As such I am clear in my mind that if the case against the applicant is allowed to remain on record, it will not enhance interest of justice in any manner. Rather I feel that it will result into abuse of the process of the Court as possibility of conviction of the applicant in such circumstances of the case is lacking. Under these circumstances, this Cr. Misc. Application under Section 561-A Cr.P.C, is accepted and it is ordered that the proceedings against the applicant are hereby quashed.