P L D 2001 Karachi 279 (PLP)

Date of hearing: 18th December, 2000. The applicant. Syed Shoaib Ahmed Bukhari through this Criminal Miscellaneous Application under section 561-A, Cr.P.C. seeks quashment of proceedings and his acquittal in the Special Case No. 432 of 1997 Re: The State v. Ziaullah and others (F.I.R. No. 363 of 1995 Police Station. Garden), registered under sections 353, 427, 32,4, 109 and 34, P.P.C. read with sections 3/4, Explosive Substances Act, 1908, pending trial before the Court of Special Judge (STA)/1st Additional Sessions Judge, Karachi South.

2. The prosecution case as contained in the F.I.R. lodged by S.I. Miskeen Lodhi is that while he was on patrol duty alongwith his subordinate staff on 13-11-1995 at 11-35 hours he received spy information that some persons (named in the F.I.R.) in pursuance of a conspiracy hatched at the instance of Altaf Hussain, Ajmal Dehlvi, Imran Farooq, Tariq Javed and Shoaib Bukhari (present applicant) attacked on family quarters of Police Line, South and offices of Agency and Police Station Garden with Rocket Launchers and fired thereupon with K.K. Rifles, which caused heavy damage to the family quarters. A number of persons including women and children were reported to have received injuries in the incident. In the F.I.R. some 20 to 25 persons were named as accused.

3. The police at the conclusion of investigation of the case submitted challan in Court on 28-1-1996 against some 35 persons including the present applicant shown as absconding, and accused Ziaullah in custody.

4. In the challan it was stated that the accused namely Altaf Hussain, Ajmal Dehlvi; Imran Farooq, Tariq Javed and Shoaib Bukhari (present applicant) were high profile leaders and were out of country while the remaining accused were hiding themselves and could not be arrested by the police. The police, however, succeeded in apprehending the accused Ziaullah on 16-1-1996.

5. It appears that on 27-5-1998 S.S.P., South, Karachi directed the S.D.P.O. Garden to re-investigate the case. The same is disclosed in Annexure C (A Photostat Copy of the order of S.S.P. South) filed with the application. One more document Annexure D (Photostat Copy of a letter of S.D.I., Garden addressed to A.S.P., Garden) states at page No.2, as follows: "No involvement is found from reliable sources in F.I.R. of nominated accused persons Altaf Hussain, Ajmal Dehlvi, Shoaib Bukhari, Imran Farooq, Tariq Javed and not any solid evidence, seems against them. Other accused are underground for the fear of their arrests. All possible efforts were made to apprehend them. The case file may kindly be allowed to send for legal opinion from P.D.S.P./South through S.S.P./South, Karachi as suggested by S.H.O. Garden.

6. On the basis of above, an application under section 249-A, Cr.P.C. was submitted by the applicant, which was rejected by the trial Court by its order dated 16-8-2000. Hence the present petition.

7. It was contended by Mr. Munib Ahmed Khan, learned counsel for the applicant that the order passed by the learned trial Court was erroneous. There was no evidence against the applicant and charge was groundless. It was argued that there was no possibility of conviction of the applicant and the applicant was entitled to his acquittal in the case. It was further contended that the learned trial Judge fell in error in not considering the plea of alibi of the applicant, who was out of country on the alleged date of incident. It was urged that since the police had given a certificate of no involvement, the trial Court was not justified in dragging the proceedings against the applicant.

8. On the other hand Mr. Suleman Habibullah, learned Additional Advocate-General opposed the quashment application contending that the case needed recording of evidence-and even question of alibi would have to be resolved through evidence. He further contended that the alleged offence was of a heinous nature, wherein Rocket Launchers and K.K. Rifles were used, a number of persons were injured and heavy damage to buildings and property was caused. According to the learned Additional Advocate-General such an incident would not be just a whim of accused numbering one or two.

9. Contentions raised by the learned counsel for the applicant only go to attack the order of the trial Court as being erroneous, incorrect and unjustified. Such contentions may be raised while seeking indulgence of this Court under its revisional jurisdiction. The learned counsel for the applicant, however, did not point out any illegality or incorrectness committed in the trial Court's order. The revisional jurisdiction of this Court under section 439, Cr.P.C. and inherent jurisdiction under section 561-A, Cr.P.C. vesting in this Court are not synonymous. Since no legal lacuna was pointed out in the trial Court's order, the grounds agitated on behalf of the applicant are without legal force.

10. The present petition has been titled as one under section 561-A, Cr.P.C. This provision gives powers to a High Court only, to make such orders as may be necessary to give effect to any order under the Code of Criminal Procedure or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. The power of this Court to prevent abuse of the process of any Court or to secure the ends of justice is undoubtedly very wide and unlimited. But such power can certainly not be exercised as to interrupt or divest-the ordinary course of Criminal Procedure. The inherent power of High Court can be invoked where it is established that the proceedings against a person seeking quashment of his case are either mala fide, coram non judice or a clear violation of the procedure or such proceedings amount to abuse of process of Court. This Court in exercise of its inherent jurisdiction will not embark upon evaluating or assessing the evidence which is yet to come on record. The burden to prove plea of alibi lies upon the applicant and same is to be proved legally. Where the procedure rewires recording of evidence, escape or deviation from such procedure by invoking inherent jurisdiction of this Court would be unwarranted.

11. The challan submitted in Court by police shows involvement of the applicant in the alleged offence. It is not explained how re-investigation of the case was ordered by the S.S.P., particularly when the challan had been submitted in Court and it was disclosed therein that there was evidence against the accused challaned. It is also not shown under what provision of law and under what circumstances the S.S.P., ordered re-investigation when the Special Court was seized of the trial of the accused.

12. Allegations of false implication also cannot be entertained in the instant petition. Determination of guilt or innocence of accused depends upon the totality of facts and circumstances revealed during trial. Placing reliance upon Sheikh Mahmood Saeed and another v. Amir Nawaz Khan and another IG (1996 SCMR 839) and Muhammad Ali v. The State (1998 PCr.L.J. 1323) this petition is dismissed in limine.

13. This petition was dismissed on 18-12-2000, by a short order, after hearing the learned counsel for the applicant. Above are the reasons for the same. N.H.Q./S-83/K Petition dismissed.