' Through the present criminal miscellaneous application the applicant/accused Syed Zeeshan Hussain Kazmi has sought the following relief:-- "It is, therefore, prayed that this Honourable Court may be pleased to quash the proceedings of Sessions Case No,198 of 1998 and F.I.R. No,443 of 1996 Police Station Clifton, pending in the Court of Sessions Judge, Karachi West, under section 561-A, Cr.P.C. In the interest of justice."
2. The brief facts of the case as stated in the above application are that on or before 20-9-1996 the applicant was posted as S.H.O., Police Station Khokhrapar, Karachi. On or about 15/16th September, 1996 the applicant arrested one Ali Muhammad alias Ali Soonara alias Javed alias Subash, who was required by police in many cases registered against him at different police stations in the interior of Sindh as well as in Karachi. One SMG was recovered from his possession at his pointation and later on he was arrested in various cases which were registered against him at different police stations. The said Ali Muhammad Soonara is an activist of People's Party Shaheed Bhutto Group and Al-Zulfiqar Organization and he used to act directly under the instructions, directions and supervision of (late) Mir Murtaza Bhutto.
3. It is further stated that during the course of interrogation Ali Muhammad Soonara disclosed that Pakistan People's Party Shaheed Bhutto Group was involved in the acts of sabotage in the country as well as they were working against the integrity of Pakistan. He also disclosed various names of the persons and workers of People's Party Shaheed Bhutto Group and Al-Zulfiqar Organization including about 7 to 8 thousand other workers of the said Group, whom Ali Muhammad Soonara sent to India for military training for the acts of sabotage in Pakistan. This arrangement was made by late Mir Murtaza Bhutto with the Indian agents of RAW. These persons were getting training in Military Camps situated near New Delhi and Deharadoon which were called as "Farm Houses". Such interrogation report was sent by the applicant/accused to high officials of police department. It is stated that after the arrest of Ali Muhammad Soonara his party men made two bomb blasts in Karachi. The late Mir Murtaza Bhutto alongwith his guards duly armed with lethal weapons raided Police Stations C.I.A., Riaz and C.I.A., Garden Karachi in order to get Ali Muhammad Soonara released. He humiliated police men posted at the above said police stations and got released under trial prisoners forcibly. Late Mir Murtaza Bhutto also issued threats of dire consequences to applicant/accused on telephone.
4. The said Ali Muhammad Soonara was kept in custody under the orders of S.S.P. (Central), Karachi and other high-ups of the police department at police lock-up of Police Station, Khokhrapar, Karachi because of security reasons.
5. It is stated that on 20-9-1996 the applicant/accused received information that Mir Murtaza Bhutto was holding a meeting at Sarjani Town near New Karachi and there was apprehension that procession of Mir Murtaza Bhutto may divert to Police Station, New Karachi for the release of Ali Muhammad Soonara by force. He, therefore, went to Police Station, New Karachi alongwith employees at about 12-30 p.m. And made such entry in the daily diary of Police Station, Khokhrapar.
6. It is further stated that during the course of investigation in the case of Ali Muhammad Soonara at Police Station New Town, Karachi, the applicant was informed by S.H.O., Police Station New Karachi between 9-00 p.m. To 10-00 p.m. That Mir Murtaza Bhutto and his six guards were killed in encounter with police within the jurisdiction of Clifton Police Station and that two police officials also received injuries. He confirmed this information on wireless on the next day i,e, 21-9-1996. He left Police Station New Karachi and reached at Police Station Khokhrapar and such entries were made by him in the daily diaries of police station.
7. The S.H.O., Haq Nawaz Sial of Police Station Clifton, Karachi, lodged F.I.R. No,386 of 1996 on 20-9- 1996 and arrested nine persons in this case. After the death of S.H.O., Haq Nawaz Sial, the investigation was conducted by Noor Ahmed Peechoo, A.I.-G. Crime Branch, who submitted the charge-sheet under section 173, Cr.P.C. Before the competent Court.
8. As a counter-version of the said incident F.I.R. No,399 of 1996 was lodged at Police Station Clifton, Karachi, by one Asghar Ali on 24-9-1996. During investigation, eleven police men were arrested by Investigating Officer and he filed the charge-sheet before the competent Court.
9. After six days of the incident, Mrs. Ghanwa Bhutto and Mrs. Badurnnisa Jatoi filed Constitutional Petition No,1720 of 1996 in this Court for registration of F.I.R., such petition was allowed by this Court.
The third F.I.R. Bearing No,443 of 1996 was lodged by one Noor Muhammad at Police Station Clifton, Karachi, with regard to same incident in which applicant was nominated as one of the accused.
Investigating Officer Noor Ahmed Peechoo, A.I.-G. Crime Branch, investigated the matter and submitted the charge-sheet before the competent Court.
10. Since the applicant was nominated in the F.I.R. As accused he applied for bail before arrest vide Criminal Bail Application No,1968 of 1996 and his bail plea was dismissed.
11. It is further stated that after the change of Provincial Government (Government of Sindh), Mumtaz Ali Bhutto took oath as Chief Minister of Sindh and that twice he was declared as proclaimed offender. He was supporter of Mir Murtaza Bhutto. He had no objection if any help was sought by Mir Murtaza Bhutto from the Indian agents of RAW. Mumtaz Ali Bhutto took personal interest to get the applicant/accused arrested as the applicant/accused had arrested All Muhammad Soonara, a close friend and secret-holder of (late) Mir Murtaza Bhutto.
12. On 5-10-1998 when this matter came up before me for hearing, the learned State Counsel requested for adjournment which was declined to him and learned counsel for applicant/accused was asked to argue the matter whereupon the learned counsel for the applicant/accused contended that the present application could only be heard and decided by a Division Bench. After hearing the arguments of the learned counsel for both the parties, following order was passed, which is reproduced hereinbelow:---
(1) On 5-10-1998 when the above criminal miscellaneous application for quashment of proceedings, arising out of F.I.R. No,443 of 1996 of Police Station Clifton, Karachi, came up for hearing learned counsel for Advocate-General for the State requested for adjournment but it was declined on the ground that the above matter was pending since 1996 for Katcha Peshi and that it has to be disposed of according to law.
(2) When the learned counsel for the applicant/accused was asked to argue the matter, he contended that only Division Bench of this Court is competent to hear the present criminal miscellaneous application for quashment of proceedings. He, therefore, requested for adjournment. Learned counsel for the applicant/accused placed reliance on the case of Shahnaz Begum v. Honourable Judges of High Court of Sindh and Balochistan PLD 1971 SC 677. Learned counsel appearing for A.-G. For the State had also conceded to the arguments advanced by the learned counsel for the applicant/accused.
(3) The order sheet showed that this point was never raised by the learned counsel for the applicant/accused in the past and for the first time he has raised this point though the case is pending since the year 1996.
(4) I had some doubt in my mind with regard to the validity of the arguments raised by the learned counsel for the applicant/accused. The orders were, therefore; reserved by me.
(5) In the above referred case the Honourable Supreme Court while concurring with the observations of Lord Porter in case of Emperor v. Khawaja Nazir Ahmed AIR 1945 PC 18 laid down the rule that High Courts have no power of supervision or control over Investigation Agencies and they cannot issue the directions where investigation has already commenced in accordance with law by the authorities competent to investigate under the Code of Criminal Procedure, 1898. They do not possess the power to 'direct' include the power to 'transfer' investigation from one competent Investigation Agency to another.
(6) The ratio of the Shahnaz Begum's case quoted above clearly shows that it was no-where provided by the Honourable Supreme Court that criminal miscellaneous application of this nature was to be heard and decided by a Division Bench. Thus, in my humble opinion the decision in the case of Shahnaz Begum (supra) is of no help to the learned counsel for the applicant/accused.
(7) I have also had to advantage of going through the High Court Rules and orders relating to such proceedings in the High Court. Volume V, Chapter 3-B under Rule 1, sub-Rule (xv) which reads as under-- ' Rule.
1. Subject to the provisos hereinafter set forth the following classes of cases shall ordinarily be heard and disposed of by a Judge sitting alone:-
(xv) any other application-
(a) which under these Rules in one expressly required to be made to a Bench of two or more Judges; or
(b) Which is made in any matter within the jurisdiction of a Judge sitting alone and which is not otherwise expressly provided for;"
' Again under Rule (xx) it is envisaged as follows:-- "(xx) a case coming before the Court in the exercise of its ordinary or extraordinary original criminal jurisdiction.
' Provided that---
(a) a Judge may, if he thinks fit, refer any matter mentioned in any of the clauses of this Rule other than clauses (xvii), (xviii) or (xx), and, with the sanction of the Chief Justice, any matter mentioned in clauses (xvii) and (xx), to a Division Bench of two Judges,
(b) A Judge before whom any proceedings mentioned in clause (xviii) is pending, may, with the sanction of the Chief Justice, obtain the assistance of any other Judge or Judges for the hearing and determination of such proceedings or of any question or questions arising therein".
(8) From the plain reading of the rules mentioned hereinabove, it is crystal clear that the matter where it is not expressly provided that it should be heard by a Bench of two or more Judges, the Single Bench is competent to entertain it. However, if a request is made by the Judge of a Single Bench to the Honourable Chief Justice for constitution a Bench of two or more Judges for hearing and determination of any question the Bench can be constituted by the Honourable Chief Justice.
(9) In my view present matter could be heard and decided by a Single Bench.
(10) However, this matter may be placed before my lord the Honourable Chief Justice for appropriate orders as my Lord deems fit and proper."
13. In pursuance of above order, matter was placed by the office before Honourable Chief Justice and he was pleased to order that the matter may be fixed according to roster sitting.
14. I have heard Mr. Suleman Habibullah, learned counsel for the applicant/accused, Mr. Iqtedar Ali Hashmi, learned counsel for respondents Nos.2 to 4, Mr. Sarfraz Khan Tanoli, learned counsel for respondent No,3 and Mr. Muhammad Saleh Punhwar, learned counsel on behalf of Advocate- General Sindh for the State.
15. It is contended by MI. Suleman Habibullah, the learned counsel for the applicant/accused that on the date and time of incident his client was posted at Police Station Khokhrapar, District East, Karachi, whereas incident occurred within the jurisdiction of Police Station Clifton, District South, Karachi. In support of plea of alibi he has referred to certain entries made in the daily diaries of police station(s). He has further argued that in F.I.R. No,386 of 1996 and F.I.R. No,399 of 1996, which are earlier in point of time charge-sheets were submitted. In none of these F.I.Rs,, the name of the applicant/accused was mentioned. In the third F.I.R. Which was registered as Crime No,443 of 1996 malafidely the applicant was named as an accused, with ulterior motives. The contents of this F.I.R.
Could not be believed as they are doubtful. Applicant/accused was not sent up earlier when interim charge-sheet was filed but subsequently he was sent up as an accused when special report under section 173, Cr.P.C. Was filed in the Court, that the evidence collected by the prosecution during the course of investigation and the evidence of some P.Ws. Recorded by the trial Court was interested, inimical, contradictory and discrepant and it cannot be believed, that the applicant/accused has been implicated due to political wire-pulling which is specifically pleaded in the application and that he is also on the hit-list of the terrorists. It is, thus, contended that the proceedings pending against the applicant are liable to be quashed as they are abuse of the process of Court. The learned counsel for the applicant/accused has placed reliance on the following citations:--
(a) Muhammad Hand Pathan v. The State PLD 1999 Kar.
121.
(b) Muhammad Khan and others v. Inspector-General Police, Punjab PLD 1976 Lah.
574.
(c) Zeeshan Kazmi v. The State 1997 PCr.LJ 881.
(d) Syed Saeed Muhammad Shah and another v. The State 1993 SCM R 550.
(e) Mirza Naseem Baig v. Muhammad Iqbal and another 1981 SCM R 315.
(f) Farman Ali and 3 others v. The State PLD 1980 SC 201.
(g) Siraj Din v. Kala and another PLD 1964 SC 26.
(h) Muhammad Ashfaque v. The State 1998 PCr.LJ 1486.
(i) Jam Sadiq Ali v. The State 1989 PCr.LJ 1910.
(j) The State v. Malik Mukhtar Ahmed Awan 1991 SCM R 322.
(k) Manzoor Hussain Wasan v. The State 1992 M LD 1607. (1) Aminullah v. The State PLD 1982 SC 429.
(m) Ameenullah v. The State PLD 1976 SC 629.
(n) Akram Khan v. The State and another 1978 SCM R 242.
16. Mr. I.A. Hashmi, the learned counsel for the respondents Nos.2 and 4 and Mr. Sarfraz Khan Tanoli, learned counsel for respondent No,3 contended that the first two F.LRs, referred to by the learned counsel for the applicant/accused were not correctly recorded, therefore, Constitutional jurisdiction of this Court was invoked for registration of third F.I.R. By Constitutional Petition No,1720 of 1996 and prayer made therein was allowed. The third F.I.R. Containing the name of applicant/accused was lodged and after investigation the applicant/accused was sent up under section 173, Cr.P.C. After the refusal of pre-arrest bail by this Court the applicant/accused applied for bail before arrest before the Honourable Supreme Court and before the announcement of final order he jumped the interim bail granted to him and absconded. It is further contended that the applicant/accused did not appear or surrender before the trial Court. The trial Court took every legal step to procure the attendance of the applicant/accused but without success. Ultimately, order under section 512, Cr.P.C. Was passed against the applicant and he was declared proclaimed offender by the trial Court. The proclamation under sections 87 and 88, Cr.P.C. Was also issued against him. The applicant/accused is still fugitive from law. The charge was framed on 5-7-1997 and sufficient number of prosecution witnesses have been examined by the trial Court. It is also contended that the charge under section 265-A, Cr.P.C. Could only be framed when a prima facie case is made out; that the learned counsel for the applicant/accused cannot appear on behalf of the applicant as he is an absconder and the course of trial cannot be deflected under the inherent jurisdiction of this Court. It is, thus, argued that the present application under section 561-A Cr.P.C. Is not maintainable under law. The learned counsel have placed reliance on the following citations:--
(i) Zeeshan Kazmi v. The State PLD 1997 SC 267.
(ii) Zeeshan Kazmi v The State PLD 1997 SC 406.
(iii) Hayat Bakhsh and others v. The State PLD 1981 SC 265.
(iv) Ali Ahmad Sabri v. The State 1982 SCM R 818.
(v) Muhammad Ali v. The State 1998 PCr.LJ 1323.
(vi) Akbar Khan and others v. Muhammad Anwar and others 1982 SCM R 18.
(vii) Aftab Ahmad v. Hasssa n Arshad and 10 others PLD 1987 SC 13.
(viii) Muhammad Akbar v. The State 1972 SCM R 335.
(ix) Shahid Hayat and 2 others v. The State PLD 1999 Kar.
162. (x). Shahid Hayat Khan and another v. The State 1997 PCr.LJ 901.
17. Mr. Muhammad Saleh Punhawar, learned counsel appearing on behalf of A.-G. Sindh, has adopted the arguments of the learned counsel for the respondents Nos.2 to 4 and challenged the maintainability of the present application. He relied on the case of Nasratullah v. The State PLD 1994 Pesh.
141.
18. In reply to the arguments of the learned counsel for the respondents the learned counsel for applicant/accused reiterated the arguments already advanced by him and he further contended that the order under section 512, Cr.P.C. Is bad in law and proclamation under sections 87 and 88, Cr.P.C. Issued against the applicant/accused is also contrary to law. He urged that the application is maintainable under law and applicant/accused is entitled to relief claimed by him.
19. The perusal of record shows that admittedly eight precious human lives were lost in this case and some other persons received fire-arm injuries at the hands of police and a heavy contingent of police was deployed at the place of incident duly armed with fire-arms prior to the occurrence.
The reports were registered by both the parties and cases are still sub judice before the competent Court of law.
20. The applicant/accused applied for bail before arrest before this Court in the present case which arose out of F.I.R. 443 of 1996 and he was declined bail by a Bench of this Court.
21. Being aggrieved by the order of this Court, applicant/accused moved the Honourable Supreme Court for grant of bail before arrest. The Honourable Supreme Court granted interim pre-arrest bail to him. On 21-2-1996 when application for bail was fixed for confirmation or otherwise before the Honourable Supreme Court the applicant/accused jumped bail and absconded. In view of this, the order with regard to grant of bail to applicant/accused was recalled and petition was dismissed by the Honourable Supreme Court.
22. The investigation in the present case was carried out by the different agencies and applicant/accused was sent up to stand trial in absentia before the competent Court showing him as absconder.
23. The applicant/accused did not appear before the trial Court. Non-bailable warrants of arrest were, therefore, issued against him. The trial Court took every step as contemplated under law to procure his attendance but all in vain. Ultimately, order under section 512, Cr.P.C. Was passed by the trial Court and proclamation under sections 87 and 88, Cr.P.C. Was issued and applicant/accused was declared as a proclaimed offender. Till the date the applicant/accused has not appeared before the trial Court. The charge was framed and the case has proceeded.
Evidence of some prosecution witnesses has also been recorded by the trial Court. It is well-settled that the unexplained abscondence for a long period disentitles an accused to any concession as contemplated by procedural as well as substantive law. The fugitive from law by his very conduct thwarts the course of justice and becomes privy to the disappearance of valuable evidence. Thus, the High Court cannot act in aid of a fugitive from law.
24. 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 the proceedings the Court has to consider the allegations made against the accused on their face value and if a prima facie case is made out the Court. Can refuse the prayer for quashment. Under section 561-A, Cr.P.C. The High Court cannot assume the role of trial Court and evaluate/assess the evidence which has come on record and further evidence which is yet to be recorded. 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 it has 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.
25. The jurisdiction under section 561-A, Cr.P.C. Is an and extraordinary one d the powers vested in the High Court are to be exercised sparingly C and not generally or as a matter of routine.
26. Apart from it, 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 the proceedings in exceptional cases where the trial of an accused tantamounts to abuse of process of Court.
27. In the case of 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 allowed to be deflected by approach to Special revisional or inherent jurisdiction of High Court.
28. In yet another case of Sheikh Mehmood Saeed and others v. Amir Awaz Khan and others 1996 SCM R 839, the Honourable Supreme Court has laid down 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.
29. The Police/Investigation Agency is not debarred from conducting further investigation in any cognizable case after submission of charge-sheet. In this context, there is no embargo on the powers of Police/Investigation Agency.
30. The contention that investigation changed hands or that the investigation was prolonged and will adversely reflect upon the case is not acceptable. It is well-settled that each case has to be decided upon its own peculiar facts and circumstances.
31. Merely, because the applicant/accused was not nominated as an accused in two earlier F.I.Rs, and that he was not sent up that enmity existed between the parties is no ground for quashment of proceedings. Particularly, when the applicant/accused did not appear before the trial Court in response to the process issued against him, The fugitive from law loses the normal rights which are granted by the procedural or substantive law. Inherent jurisdiction vested in this Court under section 561-A, Cr.P.C. Cannot be exercised in favour of an absconder.
32. The rulings cited by the learned counsel for the applicant/accused are of no avail to him as the facts and circumstances of the present case are distinguishable from the facts and circumstances of the cases referred to by him.
33. The upshot of the above discussion is that application under section 561-A, Cr.P.C. Is not maintainable. It merits no consideration and it is accordingly dismissed alongwith the listed application.
34. The observation made hereinabove are of tentative nature and the trial Court will not be influenced thereby in any manner at the time of final decision of the case and it will be free to conclude the case and arrive at its own independent findings on merits.