1. ' MUHAMMAD ROSHAN ESSANI, J. The applicants/accused by this Criminal Miscellaneous Application under section 561-A, Cr.P.C. Have sought quashment of proceedings in Special Case No,83 of 1998 (The State v, Ghulam Mustafa and others), which has arisen out of F.I.R. No,386 of 1996 under sections 147, 148. 149,, 353, 424, 324 and 302, P.P.C. Of Police Station. Clifton, Karachi.
2. ' The brief facts of the prosecution case as alleged in the F.I.R. Lodged by complainant Inspector Haq Nawaz Sial on 20-9-1996 are reproduced herein below:-- ' Today, I, Inspector, Haq Nawaz S.H.O. Clifton under the supervision and leadership of Janab Muhammad Tahir Malik A.S.P. Darakhshan/ Acting S.D.P.O. Clifton and A.S.P. Janab Shahid Hayat Khan Sahib was present along with S.H.O. Sahiban Police Station Garden, S.I. Shabbir Ahmed Qaim Khani, S.H.O. Police Station Napier Inspector Agha Muhammad Jamil, who reached at the spot on the information that the gunmen of Mir Murtaza Bhutto the head of Shaheed Bhutto Group are wanted in Case Crime No,270 of 1996, under section 147/148/149/ 353/452/225, P.P.C. At Napier Police Station are expecting to arrive at 70-Clifton. I along with police officials and police party getting the permission of higher officials was present at Shah-Raah-e-lran opposite New Clifton Garden for stopping and joining them for investigation. At about 2100 hours, the said persons (Mushtigan) reached at the said place in four vehicles. I, S.H.O. With the police party signalled them to stop. The accused persons when found that they would be certainly arrested, brought out their fire-arms from double Cabin Pajero Car, Mir Murtaza Bhutto on the front side of seat of second number blue Pajero ordered his armed guards in a loud voice to kill these police dogs. On which the armed persons started firing on police from all the vehicles on which Janab A.S.P. Saddar was injured with a bullet. Police vehicles were also damaged. Police party in self defence and to ensure the arrest of the accused also opened fire, due to which the person sitting in the above said vehicle and outside they received injuries. I was immediately brought to Hospital and others remained at the place for further proceedings. I report. Action be taken. I complain against the above accused persons who on the directions of Mir Murtaza Bhutto. Sahib in order to deter us from the official duties and with common intentions to kill police party started firing and injured me and A.S.P. Sahib and damaged Government vehicles. Heard the statement found correct."
3. ' The applicants/accused after usual investigation were sent up to stand trial. During the pendency of case application under section 249-A, Cr.P.C. Was moved before the trial Court which was dismissed by impugned order, dated 5-1-1999.
4. ' We have heard Mr. Mahmood A. Qureshi, learned counsel for applicants/ accused and Mr. S. Jalil Hashmi learned Assistant Advocate General on behalf of State. The latter vehemently opposed the request of applicants/accused and supported the impugned order.
5. The perusal of impugned order and material placed on record shows that with regard to same incident two counter-cases are already sub judice before the trial Court. The witnesses of one case are accused in another case.
6. It is well-settled that when there are cross/counter-cases arising out of the 'same incident, it is incumbent upon the Court that both cases be tried by the same Judge side by side. The judgment is not to be pronounced until and unless both cases are completed. After completion of both the cases, Court has to keep the evidence in juxta position before delivering the judgment. However, facts/ testimony of witnesses of one case cannot be acted upon in another case and each case is to be decided on the basis of evidence brought by the parties on record in that case. It is a rule of law as well as propriety and prudence for the safe dispensation of justice. By announcing the judgment together there will be no conflict of opinion.
7. ' The applicants/accused were sent up under interim charge sheet and the Court had taken the cognizance in the case. The investigation changed hands and ultimately in the final charge sheet, dated 2-4-1997 submitted to Court by Ali Gohar mithiani it was mentioned that the evidence in material particulars was lacking and that the case was false. The relevant portion from the report, dated 16-4-1997 of A.I.G.P. Mr. All Gohar Mithiani incorporated in impugned order which is relied by the applicants/ accused for the purpose of present application is reproduced herein below for ready reference:-- "From the investigation so conducted, statements under section 161. Cr.P.C. 164, Cr.P.C. And other material evidence it is clear that as per order of Ex.D.I.-G. Dr. Shoaib Suddle, Masood Sharif of I.-G., Syed Abdullah Shah, Asif Ali Zardari this incident took place, S.P. Shakaib Qureshi 1/C Investigation Cell who reached at the place of occurrence spoiled the evidence by concealing the real facts and arranged firing on vehicles and trees and the sub-ordinate police personnel's were ordered to give false statement and changed the Roznamcha, spoiled the empties and bullet to conceal the proof and truth. 140 empties were recovered but not a single empty was recovered from inside the vehicles.
8. ' Accused Asif All Zardari with trial a fide intention of I.-G. Chief, Suddle and others accused had shown this police encounter by spoiling all the material evidence."
9. ' In the last it has been observed by that:-; "From the investigation of case it appears that this case was false and fabricated and was done to save the skin of accused persons from the clutches of law. Thus, report for disposal of the case under Section 169, Cr.P.C. Was submitted."
10. ' P.D.S.P. Abdul Ghani Khan after investigation has reported as under:-- "In view of the circumstances, if approved the subject case may be disposed of under cancelled false 'B' Class as recommended by A.I.G.P./Crime Branch Sindh Karachi, Ali Gohar Mithani. Since this case is pending trial, hence Home Department may be moved for withdrawal of the case prior to summary orders."
11. ' However, the report of A.I.G.P. Allah Bux, dated 7-4-1997 is contrary to the two reports mentioned herein above as is evident from impugned order.
12. Thus, it is clear that he are different/divergent opinions of different c investigating Officers in the case.
13. The opinion of the police officer or investigation Agency with regard to innocence or guilt of the accused is not relevant and it is not per se legal evidence and it is not binding upon the Courts. The Courts action in obtaining opinion with regard to complicity or innocence of accused in commission of offence from Investigating Officer/Agency was always condemned by the apex Court.
14. ' It is not controverted by the learned counsel for the applicants that following pieces of evidence are available with the prosecution in the case in hand.
(A) Ocular evidence.
(B) Recovery of fire-arms.
(C) Circumstantial evidence by way of bullet marks on the vehicles.
(D) Medical evidence.
15. ' The case has not proceeded so for, even charge has not been framed in the case. The contention that the version given in the F.I.R. And in the statements recorded under sections 161 and 164, Cr.P.C.
16. Is contradictory and discrepant one and enquiry report shows that applicants are innocent and that the case is doubtful and therefore, proceedings may be quashed, are devoid of force.
17. The prima facie case is made out the Court can refuse the quashment. The High Court under section 561-A, Cr.P.C. Cannot assume the role of trial Court and evaluate/assess the evidence which is yet to come. It is the function of the trial. Court. This Court cannot embark upon such an exercise to determine the guilt or innocence of a person by way of a detailed enquiry. The accused may have a good defence but they have to pass the test of cross-examination and the appreciation of defence evidence is also the duty of the trial Court in the light of the statutory provisions and the dictums laid down by the superior Courts. The jurisdiction under section 561-A, Cr.P.C. Is an extraordinary one and powers vested in the High Court are to be exercised sparingly and not generally or as a matter of routine.
18. ' Moreover, the jurisdiction under section 561-A, Cr.P.C. Is not an additional or alternate jurisdiction and when alternate remedy is available then application under section 561-A, Cr.P.C. Cannot be entertained. The inherent powers of High Court under section 561-A, Cr.P.C. Though very wide but they are not supposed to be exercised to override the express provisions of law. The jurisdiction under section 561-A, Cr.P.C. Can be invoked to quash proceedings in exceptional cases where the trial of an accused tantamounts to unnecessary harassment or where no other alternate or adequate remedy is provided by law.
19. ' The power under section 561-A, Cr.P.C. Is not meant to stifle the prosecution but it is intended to prevent the abuse of the process of Court. For quashing proceedings at the initial stage before framing the charge and recording the evidence the Court has to consider the allegations made against the accused on their face value and if a In the case of k Habib Ahmed v. M.K. Alias Scott Christian and 5 others (PLD 1992 SC 353), it was observed that if prima facie the offence had been committed the ordinary course of trial before the Court was not to be allowed to be deflected by approach to special revisional or inherent jurisdiction of High Court.
20. ' In yet another case of Sheikh Mehmood Saeed and others v. Amir Nawaz Khan and others (1996 SCMR 339), Hon'ble Supreme Court has laid down the dicta that every case should be allowed to proceed according to law and resort to the provisions of section 561-A, Cr.P.C. Should not be made lightly as the same would tend to circumvent the due process of law.
21. ' It will be pertinent to reproduce herein under the dicta of Hon'ble Supreme Court laid down in the case of Abdul Rehman Bajwa v. Sultan and 9 others (PLD 1981 SC 522), which was followed by the trial Court while passing the impugned order:-- " In the same authority, however, it has been observed that the practice generally adopted by Courts is to try counter-cases side by side, by the same Court, till their conclusion and to pronounce judgment in each case simultaneously. No doubt the rule is not absolute and there could be cases in which the circumstances do not warrant that the said procedure must be followed, but the rule of propriety which .Is the basis of the general practice mentioned above is founded on sound principle because if two cross-cases about the same incident between the same parties are tried by different Courts there can be a serious possibility of a conflict in judgments resulting in two different Courts given two diametrically opposite findings about the same incident."
22. ' The authorities in the case of Atta Muhammad v. Inspector-General of Police, West Pakistan, Lahore and others (PLD 1965 Lahore 734), S. Mahmood Alam Shah v. The State (PLD 1987 SC 13), Muhammad Sadiq Umrani v. Government of Sindh and 3 others (PLD 1993 Kar. 735) and Mukhtar Ahmad v. The State (1994 SCMR 79), quoted by the learned counsel for the applicants/accused are distinguishable from the facts and circumstances of the present case.
23. The upshot of the above discussion is that the impugned order does not suffer from any legal or factual infirmity and the application for quashment of proceedings is, therefore, misconceived, premature and it merits no consideration. Consequently, the application is dismissed.