1. ' MUHAMMAD ROSHAN ESSANI, J.--- By this criminal miscellaneous application Abdul Qadir Motiwala son of Haji Noor Muhammad has sought quashment of proceedings in Sessions Case No,32 of 1999 pending before the learned Sessions Judge, Karachi West under section 6/9/12/13, Control of Narcotic Substances Act, 1997. The case arose out of F.I.R. No,10 of 1999 of Police Station Anti- Narcotic Force-II, Karachi.
2. ' The brief facts of the prosecution case as disclosed in the F.I.R. Lodged by the complainant Mehmood Baig. Assistant Director, Anti-Narcotic Force-H on 3-6-1999 are reproduced hereirbelow:- "Today on 3-6-1999, I, Assistant Director alongwith S.O. Khaliluddin, P.C. Siraj, P.C. Nasir Khan, P.C.
3. Muhammad Hassan were patrolling in the area with ammunition in Police Van No,182, driven by Khalid Jamil for prevention of the crime/narcotics. While we were checking vehicle near Police Training College we saw a car No,D-9008 coming from Hub Chowki side. We signaled the driver to stop the car. The driver instead of stopping accelerated the car. We blocked the road by our mobile and the car was stopped. We saw the persons sitting inside the car. We apprehended them and enquired about their names whereupon one disclosed his name as Muhammad Hameed son of Abdul Majeed resident of Karachi. On his personal search from the front pocket of his shirt Rs,200 in the shape of currency notes denomination of Rs,100 each were recovered. The other person who was sitting adjacent to the driving seat disclosed his name as Ali Muhammad son of Alloo resident of Dhorajee, Karachi. On his personal search Rs,400 were recovered from the pocket of his shirt. On the search of the car one nylon bag containing 5 slabs of Charas were recovered. Each slab weighed to be 1 Kg. The total Charas, thus, recovered came to be 5 Kgs. 20 grams Charas was separated from each slab for the purpose of chemical analysis. The sample and property was sealed at the spot.
4. ' On further search of the glove box of car, the registration book and other documents of the said car were recovered. The entire property was taken into custody under memo. Of recovery."
5. ' The accused were brought at police station where the F.I.R. Was lodged as stated hereinabove.
6. After usual investigation the applicant/accused was sent up alongwith other accused before the learned trial Court.
7. ' We have heard the learned counsel for the applicant/accused and Mr. Shoaib Ashraf learned counsel on behalf of Anti-Narcotic Force assisted by Mr. Ahmed Sabah, Deputy Director Legal. The latter opposed the request of the applicant/accused. We have also perused the material placed on the record as well as the police record with the assistance of the learned counsel for the parties.
8. ' The perusal of the record shows that during the course of interrogation the accused Muhammad Hameed and Ali Muhammad disclosed that they were returning from Hub Chowki, Balochistan after meeting with one Abdullah Bodah son of Allana, resident of Adam Kand Vindar Hub, Balochistan, The latter had delivered the Charas to accused Ali Muhammad for showing the same to Qadir Motiwala son of not known resident of Saddar Karachi, Baboo Hanif son of not known resident of North Nazimabad, and Habib son of Haji Abdul Ghani resident of Dhorajee Society, Karachi. The duty of the above person was to clear the articles which were being smuggled by sea to abroad. After showing Narcotic to the above said persons they were going back to return the narcotic to Abdullah Bodha at Hub when they were apprehended.
9. ' The case of the prosecution further is that the alleged car used in the commission of the offence was purchased by the accused Ali Muhammad on instalment basis for Rs,2,50,000. The accused Ali Muhammad had paid Rs,30,000 as advance amount towards the purchase price. The monthly instalment for purchase of the car was fixed at Rs,8,000. The police record further shows that on 14- 6-1999 the Investigating Officer examined P.W. Latif and P.W. Syed Madar Shah. P.W. Latif disclosed that accused Ali Muhammad in his presence assured the previous owner of the car that he will make the payment towards purchase price of the car after receiving money from the applicant/accused. P.W. Syed Madar Shah stated that the car involved in the commission of the offence was sold by its previous owner in his presence on 18-8-1998. The bargain was settled in his presence and accused Ali Muhammad paid Rs,30,000 as advance towards the purchase price of car and he undertook to pay Rs,8,000 per month towards instalment.
10. ' Further perusal of the material placed on record shows that on the alleged day of the incident i,e, on 3-6-1999 applicant/accused was not present in Pakistan but he was abroad. He was out of country from 8-5-1999 to 5-6-1999. This fact is confirmed by the copy of passport containing the seal of exit and entry affixed by the immigration authorities on the passport and so also by the copy of visa.
11. ' The only allegation against the applicant/accused was that the accused Ali Muhammad had shown the sample of the narcotic to the applicant and co-accused and after showing them he was returning back for delivering the same to its owner Abdullah Bodha when he was apprehended. This fact was neither mentioned in the F.I.R. Nor in the statement of prosecution witnesses who were examined under section 161, Cr.P.C. At the initial stage of the case but it was disclosed for the first time in the charge-sheet, though the F.I.R. Was registered after apprehension of the accused Ali Muhammad and Abdul Hameed.
12. It is well-settled that any confession made before the person in authority is inadmissible. So also a confession made against co-accused. Such a confession is hit by Article 38 of the Qanoon-e.- Shahadat Order, 1984.
13. ' In the case of Hajan Khan and 2 others v. The State reported in 1969 PCr.LJ 1285, it was observed by this Court that extra-judicial confession made by the accused not mentioned in the report of the occurrence and was made in presence of a Police Officer cannot be proved against the accused.
14. ' In the case of Shabiul Hassan v. The State reported PLD 1991 SC p.898 it was observed by the Honourable Supreme Court that the confession of a co-accused even when admissible was not evidence and could only be taken into consideration but could not form the basis of the conviction of the co-accused.
15. 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 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 observations were made by the Honourable 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 law 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."
16. In the case of Mairaj Khan v. Gul Muhammad reported in 2000 SCMR 122 the following dicta was laid clown by the Honourable Supreme Court:-- "There is no absolute bar on the power of the High Court to quash an F.I.R. And it is not always necessary to direct the aggrieved person to first exhaust the remedy available to him under section 249-A, Cr.P.C. It is cordinal principle of law that every criminal case should be adjudged on its own facts. The facts of one case differ from the other and, therefore, no rule of universal application can be laid in a certain case so as to be made applicable to other cases. Even in the case reported in PLD 1997 SC 275, relied on by the learned counsel for the petitioner this principle has been recognized that the High Court in exceptional cases can exercise jurisdiction under section 561-A, Cr.P.C. Without Waiting for trial Court to pass orders under section 249-A, Cr.P.C. Or 265-K, Cr.P.C., if the facts of the case so warrant. The main consideration to be kept in view would be whether the continuance of the proceedings before the trial forum would be futile exercise, wastage of time and abuse of process of Court or not. If on the basis of facts admitted and patent on record no offence can be made out then it would amount to abuse of process of law to allow the prosecution to continue with the trial. If the facts of the present case are scrutinised on the touchstone of the above criteria then it would be obvious that the further proceedings in the Court on the basis of the impugned F.I.R. Would be sheer wastage of time."
17. ' Thus, the contention of the learned counsel for the respondent that the applicant/accused had adequate remedy of approaching the trial for acquittal under section 249-A or 265-K, Cr.P.C. Is misconceived.
18. ' The citations relied by the learned counsel for the respondent in the case of Muhammad Khalid Mukhtar v. The State PLD 1997 SC 275, Muhammad Bux v. Sub-Divisional Magistrate, District Badin PLD 1999 Kar. 366 and Gulzar Ahmed Shaikh v. M.N. Salar and others 1999 PCr.LJ 1154 are of no avail to respondent and are distinguishable from the facts and circumstances of the present case.
19. The upshot of the above discussion is that the proceedings pending before the trial Court against the applicant/accused are abuse of the process of the Court and they are quashed only to the extent of applicant/accused. Criminal Miscellaneous Application No,44 of 2000 stands allowed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.