P L D 1996 Karachi 393 (PLP)

Following statement of facts would suffice to dispose of this Criminal Miscellaneous Application moved under section 561‑A, Cr.P.C on behalf of applicant/accused Abdul Majeed Mugheri for quashment of the proceedings pending against him in Sessions Case No. 104 of 1990 of Sessions Court Karachi (West) pertaining to F.I.R. No.6/92, registered under Article 3/4 of Prohibition (Enforcement of Hadd) Order, 1979, and lodged at P.N.C.B. Police Station Gulshan‑e‑Iqbal, Karachi.

2. The prosecution story, in nutshell, is that on the evening of 8th March, 1992 S.I. Nazeer Shaikh recovered 4 Kilogram of heroin powder from the Safina‑.e-Arab of one Buxal Chandio when he was leaving for Jeddah by Safina‑e‑ Arab at berth No.3, Seaport Karachi. The accused after his arrest, disclosed that the heroin powder recovered from him was handed over to him by one Shoukat Ali Mugheri for transferring its custody to Jabbar Tuhnio in Saudi Arabia who was supposed to meet him at the Seaport. Buxal was arrested, taken to the Police Station P.N.C.B. and the F.I.R was registered against him on the same day. The names of accused persons thus radiated in the F.I.R. were only three in number viz. Buxal Chandio, Shoukat Ali Mugheri and Jabbar Tunnio. Prosecution further claimed that, during the course of interrogation, Buxal involved Mehmood Shaikh, Abdul Qadir, Lateef Mugheri and the present applicant as their accomplices. Efforts were made to arrest them but without any fruitful results. Hence they were shown absconders in the charge‑sheet‑

3. In the first episode proceedings against co‑accused Abdul Jabbar and Shoukat Ali Mugheri were quashed by my learned brothers in Chambers Muhammad Aslam Arain, J. vide his judgment, dated 13‑12‑1993 in Criminal Miscellaneous No. 1157 of 1993 and Mukhtar Ahmad Junejo, J. (as he then was) vide his judgment, dated 2‑5‑1994 in Criminal Miscellaneous No.35 of 1994 respectively. The petitioner has; thus, approached this Court to get the same fortune as was gifted by this Court to other two co‑accused.

4. In this episode, the, learned counsel for the applicant had contended that the case of petitioner is very much at par with that of Abdul Jabbar Tunnio and Shoukat Ali Mugheri. Hence it was stressed by the learned Advocate that principle of consistency demands this Court to grant the same relief as was granted to other co‑accused. With all my praises for the learned Senior Advocate, I found myself unable to embrace this contention because I have expressed my view in several cases that judgment authored by Single Benches on the same point can be only persuasive and not authoritative for any other Single Bench of the same High A Court. No doubt that proceedings against two co‑accused in this case were quashed by two Single Benches but they possess the characteristics of persuasive judgment in their nature for this Court on account of their pronouncements by Single Benches of this Court. On the strength of this proposition it is not necessary for this Court to follow the same view as was taken by my learned brother in Chambers. Similarly this law point is also of great importance as to whether an application moved under section 561‑A, Cr.P.C. by an accused be also decided by the same Judge who earlier decided similar applications of other co‑accused involved in the same case. I am of the view that all such applications be decided by the same Judge to avoid any possibility of conflicting views. I have derived this principle from the dictum laid down in a case reported as State through Advocate‑General, N.‑W.F.P. v. Zubair and 4 others (PLD 1986 SC 173). On account of these propositions I found myself gripped in between two situations to decide as to whether I myself should decide this case notwithstanding the pronouncements made by other Judges of the Court in two other applications in the same case and on the same point or should I refer this matter to the Hon'ble Judge who was still in Chambers and "had decided one of the previous applications. In case I had sent the matter to the same Court it would have become the cause of delay in its disposal on account of procedural technicalities. But, at the same time, if I had decided to dispose of this application with MY conflicting views it would have caused prejudice to the applicant besides several other complications. To meet this situation I decided to hear the learned Advocate with this intention in my mind that if I reached the same conclusion as had been reached by my learned brother in Chambers then I would dispose of the said application myself and if I realized that fate of this application may be different from the fate of these applications which resulted in acquittal of co- accused persons then would refer this matter to the same Court which decided previous applications so that the applicant be not prejudiced on account of conflicting views of the two Judges of the same Court.

5. After hearing the learned Advocate for the applicant I reached the same conclusion as had been expressed by 'other two Benches. Hence, I quashed the proceedings pending against the applicant on the strength of following reasons: (i) Apart from confessional statement of principal accused Buxal at the police station, there is not an iota of other evidence against the petitioner. (ii) Article 38 of Qanun‑e‑Shahadat, 1984 (Section 25 of the repealed Evidence Act) read with section 162, Cr.P.C. puts an embargo to use any confession made to a police officer as a proof against the said accused. Likewise a statement made by an accused against any ,accused to a police officer is not admissible as evidence against the co- accused. (iii) The prosecution has not only failed to arrest other absconding accused but also failed to get judicial confession of the principal accused to get it recorded under section 164, Cr.P.C. which could be taken into consideration against the petitioner but only as a piece of circumstantial evidence. On account of these legal and factual aspects the learned counsel for the State frankly conceded that conviction against the petitioner in such circumstances cannot be recorded.

6. In view of the conceding by learned counsel for the State and lack of evidence to connect the applicant with the charge levelled against him continuance of proceedings against the applicant would amount to an abuse o process of law. Resultantly the proceedings against the applicant are quashed. N.H.Q./A‑25/K Proceedings quashed.