1. ' By this single order the abovementioned two Criminal Miscellaneous Applications are being disposed of. Applicant Dawood Khan Pathan, is facing trial in two cases. One of them is under provisions of section 3/4 of Prohibition (Enforcement of Hadd) Ordinance, 1979, registered against him at Police Station Excise of District Central, Karachi, through F.I.R. No,12 of 1995. The trial Court is Sessions Judge/Special Judge (A.N.F.) Malir Karachi, where the case is pending.
2. ' The facts of this case so that on 31-10-1995 huge quantity of Chars weighing 4000 kilograms was recovered by Excise Police at a distance of about one mile from Octroi Check Post, K.M.C. Towards Tool Plaza, at Super Highway, Karachi within the jurisdiction of Police Station Gulzar-e-Hijri from a Truck and three persons were arrested. The prosecution has alleged that the Truck was hired by the applicant, who was companion of the smugglers, arrested by police and that applicant is directly involved in the snuggling of the Chars.
3. ' In the other case filed by Pakistan Narcotics Control Board, through its Field Investigating Unit of District Karachi, on spy information, had recovered about 3,000 Kgs. Of Charas in Deh Khundi from a deserted place, which was hidden there by the applicant Dawood Khan.
4. ' It is also mentioned in the contents of these applications that applicant Dawood Khan Pathan was arrested on 10-7-1994 and was released on bail but he associated and on 1-9-1998 he was re- arrested as a result of N.B.Ws. Issued by the trial Court.
5. ' The applicant has contended that both these cases are quite false and that applicant has been implicated on account of his political affiliation and that there was no evidence against him in the cases. The prayer, therefore, is that the cases against the applicant may be quashed and he may be set at liberty. The learned counsel for the applicant mainly contended that under section 561-A, Cr.P.C. The High Court was empowered to exercise jurisdiction with respect to proceedings in any Court, irrespective of the fact that the applicant had not moved the trial Court for acquittal under section 249-A or 265-K, Cr.P.C. The learned counsel relied on the judgment in the case of Mian Munir Ahmed v. The State 1985 SCM R p.257. In the reported case it was held that the powers of the trial Court were co-extensive with the powers of the High Court under section 561-A, when considering an application under section 249-A or 265-K, Cr,P.C. It was held that both these provisions of law could be resorted to.
6. ' However, in this very judgment it was held that proper course was to approach the trial Court in the first instance, but it was also held that there was no bar if the High Court entertained the application under section 561-A, Cr.P.C. In appropriate cases. The learned counsel for the applicant, therefore, wanted that this Court should exercise such powers in these cases and quash the proceedings.
7. ' We considered the arguments of the learned counsel for the applicant but we have come across an unreported decision of the Supreme Court of Pakistan in Criminal Appeals Nos.201 and 202 of 1996 (Captain (R) Masoodul Haq v. Nisar Ali son of Allah Din and others) which appeals were actually direct against a Single Bench decision of this Court exercising the powers under section 561-A, Cr.P.C. And quashing the proceedings against the accused though the accused had not approached the trial Court under section 249-A, Cr.P.C. This judgment was delivered by a Full Bench of the Supreme Court on 5-3-1998, wherein it was held as under:-- "It is true that the jurisdiction of the High Court under section 561-A, Cr.P.C. Is not circumscribed by the provisions of section 249-A, Cr.P.C. However, if a similar remedy is available before the trial Court, the High Court will normally not interfere in the case, except in very exceptional cases, and direct the party to first approach the trial Court. We accordingly, allow the above appeals, set aside the order of the High Court and direct that the respondents, in the first instance, should avail of the remedy under section 249-A, Cr.P.C. Before the A.C.M.-V, Karachi South."
8. ' This judgment of the Supreme Court was incidentally in a case in which, one of the members of this Bench (Justice Ali Muhammad Bloch) was the author of the High Court order, which was set aside by the Supreme Court. The present cases in which the abashment is being sought, to us do not appear to be "very exceptional cases" as nothing is made out from the record as well as arguments of the learned counsel as to why the trial Court should not be allowed to examine the contention of the applicant and come to the conclusion whether there is any material available with the prosecution against the applicant which may possibly result into conviction. Under these circumstances, we hold in conformity with the rule laid down on 5-3-1998 by Full Bench B of the Supreme Court in Criminal Appeals Nos. 201 and 202 of 1996, that the applicant should first approach the trial Court with his request and thereafter, remedy under section 561-A, Cr.P.C., would be available to him from the High Court. These Criminal Miscellaneous Applications, therefore, are dismissed in C limited .