' The applicant Muhammad Hanif Pathan son of Ghulam Hyder Pathan, seeks quashment of proceedings of Case No,7 of 1997 (State v. Mrs. Ghazala Sultan and others, arising out of Crime No,77 of 1997, registered by F.I.A. Passport Cell, Karachi, under sections 420, 468, 471 and 109, P.P.C.
Read with section 5(2) of the Prevention of Corruption Act II of 1947 and under section 6(1)(a) and
(c) of Passport Act, 1974, pending in the Court of learned Special Judge (Central-I), Karachi.
2. The brief facts of the prosecution case as narrated in the F.I.R. Are reproduced hereinunder:-- "(1) On 21-3-1995, while processing the cases for Passport and Visa Mr. Sultan Ahmed Khan, Manager, Managing Director's Secretariat, P.I.A. Authorities also processed the case in respect of Ghazala Sultan w/o Sultan Ahmed Khan fraudulently showing her as Assistant Manager, Managing Director's Secretariat, knowingly and fraudulently that she was not actually an employee of P.I.A.
(2) The said processing was done by S. Saeed Hassan, Special Assistant Managing Director, P.I.A., from the Managing Director's Secretariat by T.A. Hamdani, Acting General Manger Passport and Visa Cell, P.I.A., knowingly well that she does not exist on the pay roll of P.I.A. And, therefore, was not entitled for such facilities.
(3) On the basis of letter from P.I.A. Authorities, the profession on passport of Ghazala Sultan was changed from 'House Wife' to service by fraudulent means.
(4) On the basis of fake/fabricated letters issued by P.I.A. Officers T. Hamdani, the Visas for U.K./U.S.A./France were fraudulently obtained in favour of Ghazala Sultan.
(5) That afterwards, on 28-3-1995,. P.I.A. Identity Card, having Star P-54220 was got issued from the P.I.A. Security Branch showing her designation as Assistant Manager, Managing Director's Secretariat and the same was issued without any supporting document viz, proof of Identity Card and appointment letter etc.
(6) The enquiry further revealed that as per P.I.A. Record, Staff No,P-5420 is actually allotted to one Munir Hussain, Manager Simulate Training.
(7) That on the basis of aforesaid fraudulent documents alleged Ghazala Sultan had travelled on international as well as domestic section on official duties during the period from 1-4-1995 to 31-12- 1995 also claimed T.A. Against all these travels.
' From the enquiries conducted it is, prima facie, established alleged S. Saeed Hasan while posted as Special Assistant Managing. Director during the year 1995 and alleged T.T. Hamadani which posted as Acting General Manager Passport and Visa Cell by abusing their official position as P.I.A.
Officers knowingly well that she was not an employee of P.I.A. Fraudulthtly, processed the Passport and Visa cases of alleged Ghazala Sultan under their own signatures, obtained visas for her to proceed abroad, got issued the P.I.A. Identity Card for alleged Ghazala Sultan allowed her to proceed as P.I.A. Employee causing wrongful loss to the Corporation and corresponding gain for herself. The act of the alleged persons namely, (1) S. Saeed Hassan, (2) T.A. Hamadani and (3)
Ghazala Sultan attracts the provisions of section 420/468/471/109, P.P.C. Read with Act II of 1947 and section 6(i)(a)(c), Passport Act 1974. Hence, a case is accordingly registered under the order of Deputy Director/F.I.A., I&AS (S.R.), Karachi and investigation taken up by the undersigned."
3. After registration of the above F.I.R., the F.I.A. Authorities started investigation of the case and arrested the accused/respondents Nos. 2 to 4.
4. The F.I.A. Submitted an interim challan before the trial Court on 5-6-1997 wherein name of the applicant was not shown as one of the accused.
5. Afterwards, the F.I.A. Submitted a supplementary interim challan in the trial Court on 7-7-1997 in which also name of the applicant was not shown as one of the accused.
6. In spite of the fact that the name of the applicant was neither mentioned in the F.I.R. Nor in the interim challan and supplementary interim challan, yet the F.I.A. Police started visiting his house and harassing him in order to arrest him in the above case. The applicant, therefore, applied for anticipatory bail before the trial Court and the learned trial Judge granted him bail before arrest in the above case un 22-7-1997 and it was confirmed on 16-9-1997.
7. Since 7-7-1997 the applicant is regularly attending the Court but no progress is made and even charge has not been framed.
8. I have heard Mr. Ali Bux Leghari, learned counsel for the applicant and Syed Mamnoon Hasan, learned Deputy Attorney-General, for the State. Latter has opposed. I have also perused the material placed on the record.
9. Before adverting to the point of complicity of otherwise of the applicant in the commission of the above offence it will be pertinent to consider the import of "challan" and "interim challan" and its impact on judicial proceedings taken in a trial.
10. Nowadays it has become a common practice that almost in every case police submits "interim challan" and after a considerable delay submits the "final challan". There are many instances where police after submitting the "interim challan" forgets about forwarding a final challan and in such a situation Courts treat interim challan as final and proceeds with the case. This tendency of interim challan as a rule of general practice is highly deplorable. It has proved one of the major cause of inordinate delay in the conclusion of the trial. In this context, Courts should be vigilant and cautious and in such a situation they should not become privy to the delaying tactics adopted by either parties because delay defeats the ends of justice.
11. In the case in hand, I have come across a new terminology of "supplementary interim challan" which is unheard of.
12. Admittedly, in the present case, two challans so far were submitted before the trial Court. Firstly, "interim challan" was submitted and subsequently, "supplementary interim challan" was forwarded to the trial Court.
13. Section 173 of the Code of Criminal Procedure, 1898 postulates that when investigation is completed the officer incharge of the police station is required to submit a final report commonly known as final challan before the competent Court containing all the material particulars relating to the case.
14. Initially, there was no mention in any provision of the Code of Criminal Procedure, 1898, with regard to "interim report" or "interim challan". In the year 1992 following proviso was added in section 173, Cr.P.C. By way of Act XXV of 1992 (Code of Criminal Procedure (Amendment) Act, 1992).
The same is reproduced hereinbelow for ready reference: "173. Report of Police Officer.--(1)... ......
(Provided that, where investigation is not completed within a period of fourteen days from the date of recording of the first information report under section 154, the officer-in-charge of the police station shall, within three days of the expiration of such period, forward to the Magistrate through the Public Prosecutor, an interim report in the form prescribed by the Provincial Government stating therein the result of the investigation made until then and the Court shall commence the trial on the basis of such interim report, unless, for reasons to be recorded, the Court decides that the trial should not so commence.)
(2)..
(4) .
(5)
15. The perusal of above proviso reveals that officer-in-charge of a police station is empowered to submit an "interim report" or "interim challan" but in the entire Code of Criminal Procedure, 1898, it is nowhere provided that after submitting an "interim report" or "interim challan" any "interim supplementary challan" could be forwarded or submitted before the Court.
16. Thus, it is crystal clear that submission of an "interim supplementary challan (report)" is not warranted or provided by law. The trial Court could not have mechanically accepted or termed it as a "supplementary interim challan" because the same is not provided by any statutory provision of the Code of Criminal Procedure, 1898. It was the bounden duty of the trial Court to have termed it as a final report (challan) and not to have acted as per the ipse dixit of police. The challan so submitted would be treated as final challan for all the legal intents and purposes. However, if for any plausible reason prosecution needs time, the Court can grant the same under section 344, Cr.P.C. After recording the reasons therefor. In this respect the relevant observations of this Court in the case of Noor Dad and 11 others v. The State 1974 PCr.LJ 231 are reproduced hereinbelow;-- "9. There is no such thing in the law as an interim charge-sheet. There is no warrant whatsoever for the practice which is now prevalent of sending up a charge-sheet described as interim challan to satisfy the mere form of the law taking it for granted that the investigation will continue and the case not allowed to proceed. The correct position is that this charge-sheet is one upon which cognizance can and must be taken. It is true of course that despite this the police may continue its investigation; nothing in the Criminal Procedure Code prevents it and the fact of the cognizance taken does not stand in the way of further investigation. It is equally true, however, that such an investigation does not and cannot be allowed to stand in the way of the trial. If the case does not proceed after congizance it can only be as a result of the order of adjournment granted by the Magistrate under section 344, of the Cr.P. Code, which is as much a Judicial order as any order that a Magistrate can pass. Only if proper grounds are shown to a Magistrate justifying such a course should he grant an adjournment; otherwise clearly he should proceed. It is not for the Investigating Authority or a prosecution agency to take it for granted that upon an interim charge-sheet having been produced the forms of the law have been satisfied and they are then at leisure to proceed with the case when they please. An order of this kind by a Magistrate, I regret to say is altogether too mechanically being made nowadays and I sincerely hope that Magistrates in future will apply their mind judicially to see whether there exists any special reason why such an adjournment should be granted. I have no doubt that Magistrates have sufficient powers under Criminal Procedure Code to enforce compulsorily the attendance of witnesses where necessary and if that becomes necessary then I have equally no doubt that they will use their powers accordingly."
17. The Courts of law are sanctuaries of the rights of the citizens and they are required to implement the law in its true spirit. The Presiding Officer of the Courts are not expected to tilt the scales of justice on either side but their sole aim and object is, and should be to impart justice without any fear or favour and in accordance with law. It is unfortunate that in the case in hand the trial Court has not applied its judicial mind and has acted mechanically.
18. Now, I will advert towards the factual and legal aspect of the case of applicant.
19. The perusal of record shows that the name of applicant does not transpire in the F.I.R. And it is also not mentioned either in interim challan dated 5-6-1997 or in the so-called "supplementary interim challan" dated 7-7-1997 as one of accused person. Apart from that applicant has not been assigned any part whatsoever in the F.I.R.
20. As disclosed in the application, the applicant appears to be a respectable person and he is serving as General Manager (Stores), Pakistan International Airlines Corporation, Karachi. The F.I.A.
Police started visiting his house in order to arrest him malafidely. Apprehending his imminent arrest and humiliation at the hands of police he applied for bail before arrest which was granted and ultimately it was confirmed by the trial Court on 16-9-1997.
21. It is generally seen that the innocent and respectable persons in order to avoid the rigour at the hands of police usually apply for bail before arrest.
22. It is a matter of great concern that the bail of applicant was confirmed on 16-9-1997 and he was not required in the case in any capacity but still he was directed to attend the trial Court for no reasons. In obedience to the directions of the Court, the applicant has been appearing before the trial Court since last more than a year.
23. In a case when an accused is granted bail he need not to be directed to attend the Court till the conclusion of investigation and final report. However, he can be directed to join the investigation.
After completion of the investigation and on receipt of interim or final report as the case may be, if accused fails to appear or he is net produced by the prosecution, he could be summoned by the Court and Court has wide powers under the Code of Criminal Procedure to secure the attendance of such accused or of any other person compulsorily required. There is no provision of law whereby accused could be directed to attend the Court till the final result of the investigation or where no inquiry or trial is pending against him.
24. Thus, the order of the learned trial Judge directing the applicant to attend the Court was not warranted by law and is liable to be set aside/quashed.
25. The object of section 561-A, Cr.P.C., whereby inherent powers are conferred on this Court is to do the real and substantial justice and to prevent the abuse of the process of the Court. To secure the ends of justice powers of this Court are very wide. In the case of M.S. Khawaja v. The State PLD 1965 SC 287 following dicta was laid down by the Hon'ble Supreme Court:- "To quash a judicial proceeding in order to secure the ends of justice would involve a finding that if permitted to continue, that proceeding would either operate or perpetuate an injustice. To find an 'abuse' it would be necessary to see in the proceeding, a perversion of the purpose of the taw such as to cause harassm ent to an innocent party, to bring about delay, or where the machinery of justice is engaged in an operation from which no result in furtherance of justice can accrue, and similar perverse results."
26. In the present case, there is no iota of evidence against the applicant. The F.I.R. And two challan reports discussed above contain no name, allegations or accusation against the applicant nor he has been sent up to stand trial. In spite of all this, applicant was directed to attend the trial Court on each and every date of the hearing of the case, which in my view tantamounts to causing harassm ent to an innocent person. Learned D.A.-G. Has also confirmed that in the F.I.R. As well as in two challan reports name of applicant does not transpire, neither any allegation or accusation against the applicant has been made therein nor he has not been sent up to stand trial.
27. In the case of Yousaf Khan v. The State PLD 1967 Peshawar 255, it was observed as under:-- ".. .... ... ... .He was not charged in the F.I.R. Nor was he charged before the police in the statements recorded by the Magistrate under section 164, Cr.P.C. The record of the case was summoned, nowhere appears from the record that the petitioner was any way concerned with the commission of the offence. The issuance of process by the Court after the challan was put under section 173 by the police is not warranted by the record of the case. Ordinarily, if the Magistrate ordered an accused to be tried the trial must proceed. But when this Court is satisfied that an accused is being prosecuted without there being any material before the Magistrate for his prosecution, it will be abdicating its functions if it did not interfere to stop injustice calling for a prompt redress... ......"
28. The contention of the learned D.A.-G. That when the alleged offence was committed by accused Mrs. Ghazala Sultan, Syed Saeed Hassan, Syed Tanveer Ahmed Hamdani and Sultan Ahmed, the present applicant was posted as General Manager Personnel, P.I.A.C.; that the present application is premature and after the submission of final challan applicant can apply under section 249-A, Cr.P.C. Or 265(K), Cr.P.C. Before the trial Court, has no force.
29. Merely, at the relevant time applicant was posted as General Manager Personnel, P.I.A.C. Is not sufficient.
30. The contention that applicant after submission of final challan can move the trial Court under section 249-A or 265-K, Cr.P.C. Is misconceived.
31. In the case of Shahid Muhammad Khan and 2 others v. The State and another PLD 1993 Karachi 1, it was observed by my learned brother (late) Qaiser Ahmed Hamidi, J. (as he then was) as follows:-- "11. Before I take leave I would like to dispose of a legal objection raised by Mr. Ashique Hussain Leghari, learned counsel for respondent No,2, who has contended that the applicants ought to have moved the trial Court for acquittal under section 249-A; Cr.P.C., before invoking the inherent jurisdiction of this Court. The learned counsel for respondent No,2, should have known that a complete answer to this objection is provided in the cases of Mian Munir Ahmed v. The State reported in 1985 SCM R 257, Ghulam Ali v. Javid and another reported in 1989 PCr.LJ 507, and Wahid Hussain v. The State and 8 others reported in 1990 PCr.LJ 1209. In the first cited authority the Supreme Court observed as follows:-- 'That the powers of the trial Court under sections 249-A, Cr.P.C. And 265-K, Cr.P.C. Are co-extensive with the similar powers of the High Court under section 561-A, Cr.P.C. And both can be resorted to.'
' It would, of course, be proper to approach the trial Court in the first instance but there is nothing to bar the High Court from entertaining, in appropriate cases, an application under section 561-A, Cr.P.C. Directly.
12. For the reasons given above, I accept this application made under section 561-A, Cr.P.C. And direct the quashment of above proceedings pending against the applicants in the Court of Civil Judge and F.C.M., Tando Allahyar."
32. In yet another case of State v. Gulzar Muhammad and others 1998 SCM R 873, the Hon'ble Supreme Court has laid down the following dicta:-- "7. The case-law surveyed would, therefore, clinch the matter. The trial Court can acquit the accused under sections 249-A and 265-K, Cr.P.C. As the case may be, at any stage of the proceedings and in the circumstances of each case the appropriate remedy for the accused appears to be to request the trial Court to consider their case under the provisions of law. The learned trial Court should thereupon apply its mind to this aspect of the matter and in the first instance, before it proceeds any further with the proceedings, shall decide whether the accused are entitled to be acquitted in terms of section 249-A or 265-K, Cr.P.C. If the accused are not held entitled to the acquittal in the terms aforesaid then they have the right to approach the High Court for quashment of the proceedings against them. This rule proceeds on prudence and cautiousness. Nonetheless, both the jurisdictions under sections 249-A/265-K and 461-A, Cr.P.C. Are co-extensive. In the instant case, it would have been proper to approach the trial Court in the first instance but there is nothing against the High Court for entertaining in appropriate case, an application under section 561-A, Cr.P.C. Directly."
33. Thus, it is obvious that for invoking the jurisdiction of this Court under section 561-A, Cr.P.C. It is not a condition precedent that trial Court must be moved in each and every case in the first instance.
34. The upshot of the above discussion is that there is no tinge of evidence against the applicant, therefore, no useful purpose will be served by dragging the applicant in the case before the trial Court as ultimately the applicant is bound to be let off. Resultantly, the Criminal Miscellaneous Application No,330 of 1998 is allowed to the extent that proceedings in respect of only applicant are hereby quashed. However, the case against respondents Nos. 2 to 4 will proceed before the trial Court in accordance with law.