1. ' By this application under section 561-A, Cr.P.C. Applicant Muhammad Ramzan Baloch, seeks quashment of criminal proceedings pending against him in the Court of learned IInd Additional Sessions Judge, Karachi, West.
2. ' Mr. Abdul Waheed Katpar, learned counsel for the applicant while narrating the facts stated that on 29-11-1990, Field Investigation Officer, Arshad Islam Shaikh of Pakistan Narcotics Control Board, Karachi, intercepted a passenger, Azizullah Solangi, at Shed No,3 of East Wharf, Karachi, and recovered one kilogram of heroin powder, from his "hot pot", when he was about to board the ship, "Safina-e-Abid", ready to steam off that night, for Jeddah. After preparing memo. The F.I.O. Took Azizullah to the police station, where, he registered an F.I.R. On behalf of State. In the F.I.R. Name of applicant M. Ramzan Baloch, was not shown and he was not implicated in connection with the commission of offence alleged in this case. After recording F.I.R. Under Articles 3/4 of Prohibition (Enforcement of Hadd) Order, 1979, the F.I.O. Completed investigation and Azizullah Solangi was sent up to face trial.
3. ' While submitting challan name of applicant Muhammad Ramzan Mughair, resident of Larkana, was shown as absconder. Mr. Katpar, has stated that the prosecution case is, that after his arrest and during interrogation accused Azizullah Solangi disclosed that the heroin was supplied to him by applicant M. Ramzan Mughairi. Mr. Katpar has further stated that Azizullah Solangi, was tried and convicted. He was sentenced to life imprisonment and on an appeal before the Federal Shariat Court, the imprisonment for life was reduced to 10 years. Mr. Katpar has submitted that the trial Court while deciding the case against Azizullah Solangi, observed that the case against absconding accused Muhammad Ramzan Mughairi, shall be tried as and when he is arrested and produced before the trial Court. He has pointed out that during the course of trial, statement of accused Azizullah Solangi, was recorded under section 342, Cr.P.C. And a question was put to him if the heroin powder was supplied to him by Muhammad Ramzan Mughairi, to which he replied in negative. Mr. Katpar, has contended that in these circumstances, there is not an iota of evidence against the applicant, with the prosecution and therefore, the applicant has invoked inherent jurisdiction of this Court under section 561-A, Cr.P.C. So that the applicant is not put to unnecessary harassm ent and this Court should intervene in order to save the applicant from being victimized which would amount to the abuse of process of law. Mr. Katpar, has further submitted that merely a word from the Investigating Officer having no evidentiary value in law should not be treated so sacrosanct as to put an innocent person in jeopardy of going through the ordeal of facing trial, which is bound to be an exercise in futility, for want of availability of evidence with the prosecution.
4. In support of his contention that the applicant is entitled to relief, he has placed reliance on two judgments of this Court. The first judgment is in Criminal Miscellaneous No,1157 of 1993. In this case accused Bukhshal waa arrested for an offence under Articles 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979, and during the course of interrogation, he named applicant Abdul Jabbar, to be his accomplice. Applicant Abdul Jabbar was shown as absconder. It was contended in the quashment application that there was no evidence in the case suggesting direct or indirect involvement of the applicant and he was implicated at the instance of one Inspector of Intelligence Bureau. It was further submitted that the disclosure made by accused persons to police was not admissible in evidence, and therefore, the continuance of proceedings before the trial Court would be abuse of process of Court. The learned A.A.-G. In the cited case opposed the application but conceded that the conviction of the applicant was not possible. It was held by a learned single Bench of this Court that in the above circumstances continuance of proceedings against applicant Abdul Jabbar, would be an abuse of law and the proceedings against him were quashed. The second unreported judgment on which Mr. Abdul Waheed Katpar has placed reliance is in Criminal Miscellaneous No,35 of 1994. In this case the facts were almost identical to the case under consideration. In the said case the relevant facts were that accused Buxal who was leaving for Jeddah by Safinae-Arab was arrested at Berth No,3, Karachi Port and heroin powder was recovered from his possession. After his arrest the accused from whom heroin powder was recovered allegedly disclosed to police that the heroin powder which was recovered from him was handed over to him by applicant Shoukat Ali Mughairi for transferring its custody to Jabbar Tunnio in Saudi Arabia. After investigation Buxal, from whose possession heroin powder was recovered, was put to trial and Shoukat Ali Mughair alongwith 5 persons was shown as absconders. Co-accused Abdul Jabbar submitted application for quashment being Criminal Miscellaneous No,1157 of 1993, which appears to be the case, which I- have discussed above. The application submitted by Abdul Jabbar was allowed as discussed above and when the application by Shoukat Ali Mughairi came for consideration before his Lordship Mr. Justice Mukhtar Ahmed Junejo (as he then was), it was observed that no doubt huge quantity of heroin was recovered from Buxal but there was no evidence on record which may connect the applicant Shoukat Ali Mughairi with the recovery of heroin from Buxal. Reference was made to the judgment of Honourable Supreme Court in the case of A. Habib Ahmed v. M.K.B. Scott Christian, PLD 1992 SC 353, wherein it was held that if prima facie offence had been committed justice required that it should be enquired into and tried. It was observed by his Lordship Mr. Justice Mukhtar Ahmed Junejo that in the instance case there is no material to show if prima facie the offence had been committed by the present applicant. The application for quashment of criminal proceedings was accepted and the proceedings were quashed. - ' Mr. Abdul Waheed Katpar, learned counsel for the applicant has further submitted that normally a person sent up for trial should be asked to seek remedy from the trial Court but in exceptional circumstances, as in this case, the High Court has inherent jurisdiction under section 561-A, Cr.P.C.
5. To entertain the application for quashment of proceeding in order to prevent the abuse of process of law. In support of his contention he has placed reliance on the judgment of Honourable Supreme Court, in the case of Miraj Khan v. Gul Ahmed and 3 others 2000 SCM R 122. It has been held by the Honourable Supreme Court in the above case that "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 cardinal principle of law that every criminal case should be adjudged on its own fact. The facts of one case differed 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 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". The Honourable Supreme Court after laying down the above principle examined facts of the cited case and thereafter held that the High Court was correct in quashment of the F.I.R. And leave to appeal was refused.
6. ' On the other hand Mr. Shoaib M. Ashraf learned Special Prosecutor, has opposed the application mainly for the reason that the applicant has not surrendered before the trial Court, and therefore, he is not entitled for any relief. In support of his contention he has placed reliance on a single Bench judgment of this Court in the case of Syed Zeeshan Hussain Kazmi v. The State and 3 others 2000 PCr.LJ 645, wherein it has been held that unexplained abscondence for a long period, disentitled the accused to any concession as contemplated by procedural as well as substantive law. Fugitive from law by his very conduct thwarts the course of justice and becomes privy to the disappearance of valuable evidence and the High Court, thus, cannot act in aid of a fugitive from law. It has been further held that power under section 561-A, Cr.P.C. Is not meant to stiffle the prosecution but is intended to prevent the abuse of the process of Court. The principle has been laid down that the Court for quashing the proceedings has to consider the allegation 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. It has been further held that the High Court under section 561-A, Cr.P.C.
7. 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, 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. It has been further held that the powers under section 561-A, Cr.P.C. Are very wide, but they are not supposed to be exercised to override the express provisions of law. Mr. Shoaib Ashraf has further placed reliance on another Single Bench judgment of this Court in the case of Muhammad Bux v.
8. S.D.M. PLD 1999 Kar. 366, in which my learned brother Mr. Justice Wahid Bux Brohi, formulated a question whether right forum was opted by the applicant to agitate his case and challenge the proceedings initiated in exercise of powers under section 145, Cr.P.C. By invoking the inherent jurisdiction of High Court under section 561-A, Cr.P.C. Skipping over the normal remedy of revision in the Court of Sessions Judge available under section 435, read with section 439-A, Cr.P.C. It has been held that the inherent jurisdiction given by section 561-A is not an alternative, jurisdiction or an additional jurisdiction but it is a jurisdiction preserved in the interest of justice to redress grievances for which no other procedure is available or has been provided by the Code itself. The power given by this section can certainly not be so utilised as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute. The application for quashment was rejected with an observation that the applicant may have recourse to the provisions contained in section 435 read with section 439-A, Cr.P.C. The learned State Counsel has further placed reliance on an another Division Bench judgment, of this Court in the case of Dawood Khan Pathan v. The State 1999 PCr.LJ 2099, wherein while considering the quashment application under section 561-A, Cr.P.C. It has been held that the cases against the accused did not fall within the category of very exceptional cases as nothing was made out from the record of the arguments as to why the trial Court should not be allowed to examine under section 249-A, Cr.P.C. Whether any material was available with the prosecution against the accused which might possibly result into his conviction and the accused was, therefore, directed to first approach the trial Court in this behalf. Petitions for quashing the F.I.Rs, were dismissed in limine. The learned State Counsel has further placed reliance on a judgment of the Honourable Supreme Court in the case of Altaf Hussain v. Abdul Samad 2000 SCM R 1945, in which his Lordships Mr. Justice Rana Bahgwan Das has held that generally speaking Police Officers are not competent to investigate an offence which is non-cognizable and requires permission from a competent Magistrate before the commencement of investigation. However, if through bona fide error or misconception of facts and law a Police Officer has undertaken investigation of a crime in which he is not authorised to arrest an accused without a warrant from a Magistrate and a case is taken to a Court competent to try it in terms of section 190(1) (a) and (b), Cr.P.C. Cognizance taken may not be altogether bad in law and vitiated unless the trial has caused serious prejudice to the accused resulting in miscarriage of justice. It has been further held that, "there is no blanket for the acts committed dishonestly or mala fide by Police Officers who inherently are otherwise not empowered to submit reports for trial in non- cognizable offences and Courts should not normally, encourage the acts of police agencies without proper scrutiny. Yet in appropriate cases, if a Court otherwise competent has taken cognizance of an offence and proceeded with the trial of the accused, the same may not be vitiated in the absence of any miscarriage of justice or grave prejudice to the accused. In the cited case the proceedings were quashed by Sindh High Court under section 561-A, Cr.P.C. In respect of a case under sections 504, 506(1) and 427/34, P.P.C. For the reasons that the offence under section 506, P.P.C. Was non-cognizable in view of the prohibition contained in section 155(2), Cr.P.C. The Police Officer was not authorised to conduct investigation without an order of the Magistrate. It was held by the High Court that the investigation conducted was illegal and of no consequence thus, the whole proceedings before the trial Court were void ab initio amounting to abuse of process of law. In the above circumstances it was held by the Honourable Supreme Court that the High Court was not justified in quashing the proceedings merely for the reasons that the Police Officer was not empowered to conduct investigation without prior permission from the Magistrate.
9. ' I have carefully considered the contentions raised by the learned Advocates for the parties, the facts and circumstances of this case and the ratio of the judgments on which reliance has been placed by the learned Advocate.
10. ' So far the latest judgment of the Honourable Supreme Court in the case of Altaf Hussain v. Abdul Samad (supra) is concerned, it is entirely different set of facts and circumstances, and therefore, the ratio of the cited case is not applicable to the facts of the present case. In the cited case a principle has been laid down that if a Court competent to take the cognizance of a case has taken cognizance then the proceedings are not to be quashed for any defect or irregularity during the investigation. In an earlier unreported judgment also, State v. Muhammad Nawaz, the Honourable Supreme Court has held that the proceedings are not to be quashed if there is any illegality or irregularity during the course of investigation. The earlier unreported judgment was authored by Mr. Justice Ajmal Mian, C.J. And the same principle has been followed by the Honourable Supreme Court in the case of Altaf Hussain. So far the other judgments on which the learned Advocates for the parties have placed reliance, are concerned the principle which can be deduced from the ratio decidendi thereof, is that the inherent jurisdiction of the High Court under section 561-A, Cr.P.C. Is to be exercised in the interest of justice, to prevent the abuse of process of law and to advance the interest of justice and protect the rights and liberties of the citizen guaranteed in the Constitution and in doing so the normal course provided in law is neither to the skipped over nor diverted.
11. However, in order to ascertain whether there is a case of the abuse of process of law or not, the litmus test is whether the prosecution has any prima facie case against an aggrieved person. If the prosecution is able to show a prima facie case against an applicant/accused then the High Court should not intervene in exercise of its inherent jurisdiction under section 561-A, Cr.P.C. And shall allow the trial Court to examine the evidence, appreciate the same, assess and evaluate the prosecution and defence version and thereafter decide the case in accordance with law and the aggrieved party may have recourse to the Appellate and Revisional forum provided under the law.
12. However, if the prosecution has no prima facie case at all and is not able to show that it is in possession of any evidence whatsoever which is to be brought on record then it would be a clear case of abuse of process of law and the High Court shall be within its jurisdiction rather would be required to invoke its inherent jurisdiction to prevent the abuse of the process of law. Adherence has been made to this principle by my Lord Mr. Justice Mukhtar Ahmed Junejo in Criminal Miscellaneous No,35 of 1994 on which Mr. Katpar has placed reliance.
13. ' I have specifically asked the learned State Counsel, if there is any evidence available with the prosecution which is required to be produced before the trial Court to which he candidly replied in negative. He has frankly accepted that except a word from the Investigating Officer that accused Azizullah Solangi disclosed that the heroin powder was supplied to him by Muhammad Ramzan, there is no other evidence whatsoever with the prosecution. The sole contention of the learned State Counsel is that notwithstanding non-availablity of any material with the prosecution to be produced before the trial Court, the applicant should not be allowed to approach this Court directly under section 561-A, Cr.P.C.
14. In view of the discussion made above and consequent to the principle laid down that for exercising jurisdiction under section 561-A, Cr.P.C. It is imperative to examine if the prosecution has any evidence or has made out a prima facie case, I find that in the present case the prosecution has no evidence whatsoever, and therefore, if the applicant is directed to approach the trial Court it would be a clear case of harassm ent not warranted in law and the proceedings with the trial Court would be a glaring example of the abuse of process of law.
15. ' In view of the fact that the prosecution has no evidence whatsoever against the applicant, it is held that it is a fit case for quashment of proceeding and consequently the proceedings pending against the applicant before the trial Court is hereby quashed. The application is allowed accordingly. The listed applications have been rendered infructuous and stand disposed of as such. The applicant is present on bail. His bail bond stands discharged.