1. Since a very short legal point is involved; hence this application is admitted and taken up for regular hearing with the consent of learned counsel for the applicant and the learned A.A.-G. Applicant Muhammad Hussain alias Soofi is seeking quashment of the proceedings pending against him in the Court of learned Civil Judge and F.C.M., Rohri under Articles 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979. The case of the prosecution in brief is that on 13-6-2002 after receiving spy information regarding availability of Narcotics (Bhang) in a Bogie No,7 of 8-DN, Tezgam Train, H.C. Jehan Khan, who was on duty at Railway Plat Form Rohri made a raid on the said Bogie and found one person namely Sirajuddin alongwith one bag from which, subsequently 5 KGs "Bhang" was recovered. On enquiry passengers sitting in the compartment told that the bag belonged to the passenger sitting on Seat No,85 and another person who was sitting with him, has alighted from the train. The bag was taken in possession by the H.C. Jehan Khan. It is further alleged that one person slipped away during this process and after interrogation arrested accused Sirajuddin disclosed that the name of his companion, was Muhammad Hussain alias Soofi on of Abdul Rehman by caste Kharal, resident of District Sheikhupura. Subsequently, the applicant was also apprehended on 21-6-2003 and he is also facing trial. Both Sirajuddin and Muhammad Hussain have been charged by learned Civil Judge and F.C.M., Rohri under Articles 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979. An application under section 249-A, Cr.P.C. Seeking acquittal of the applicant, was filed before the learned trial Court on the ground that nothing was recovered from his possession and at best the evidence available against him is the statement of co-accused, who was under the custody of Police at the relevant time and such is not admissible under the law Qanun-e-Shahadat Order (10 of 1984). The said application was rejected by the learned trial Court on 7-3-2003 whereafter the applicant has filed this application under section 561-A, Cr.P.0 seeking quashment of the proceeding and praying for his acquittal. I have heard Mr.Mushtaque Ahmed Leghari, learned counsel for the applicant and Mr.Sher Muhammad Shar, learned A.A.-G. Appearing for the State. The main contention of Mr. Leghari, is that the solitary piece of evidence collected by the prosecution against the applicant, is the statement of co-accused Sirajudding while in custody of the Police, which is not admissible in evidence. In support of his contention, learned counsel has placed reliance on the cases of Ghulam Hussain v. State and 3 others (1997 PCr.LJ 1782, wherein with reference to the case of Arif Nawaz Khan and others v. The State it has been held that accused confessing his guilt becomes "Fasiq" and ceases to be "Adil" ; hence his evidence is not acceptable against co-accused. Learned counsel with reference to powers of this Court under section 561-A, Cr.P.C. Has placed reliance on a recent judgment of this Court reported as Muhammad Ramzan Baluch v.State (2001 PCr.LJ 1538). In both these reports while considering the material, which was found unwarranted for conviction, powers under section 561-A, Cr.P.C., were exercised by this Court and the proceedings were quashed.
2. So far the merits of the case, are concerned that there is no other piece of evidence against the applicant except the word of co-accused before the Police, learned A.A.-G has not vehemently controverted the same but his main objection is regarding the maintainability of the application for quashment under section 561-A, Cr.P.C. In support of his plea that such application is not maintainable, he has placed reliance on the case of Peeral alias Pir Bux v. State (1992 PCr.LJ 1842) wherein, a case for Offences Against Property (Enforcement of Hadood) Ordinance, was not quashed by an Honourable Single Judge of this Court taking into consideration that when a revision was maintainable against an order called in question in that case and the jurisdiction under Article 203DD to hear and decide the revision lies with the Federal Shariat Court; hence, proceedings under section 561-A, Cr.P.0 could not be invoked to bypass the jurisdiction of that Court. I have given due consideration to the rule laid down in that authority and the two other reports cited by Mr.Leghari.
3. Indeed, there is no cavil with this proposition that revisional powers under Article 203DD, lie with the Federal Shariat Court and in such eventuality a revision is to be filed and Federal Shariat Court should not be bypassed. However the facts of the case in hand,' are distinguishable. Quashment of the proceedings is the exclusive jurisdiction of this Court under section 561-A, Cr.P.0 and in all appropriate cases, this Court has come to the help of a person, who has invoked such jurisdiction if there is no probability of his conviction even if the case of the prosecution is taken to be true as it is.
4. Therefore, I am of the view that the case-law cited by the learned A.A.-G., is 'distinguishable and the two other authorities, which are subsequent to the decision of 1992 cited by. Mr. Leghari are holding field. Under the circumstances this application is granted and the proceedings against the present applicant Muhammad Hussain alias Soofi pending in the Court of learned Civil Judge and F.C.M., Rohri, are hereby quashed. Needless to observe that any observation in this order, shall not cause prejudice to the case of the prosecution of the defence so far co-accused Sirajuddin is Concerned. 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.