1995 PLP 511 (MLD)

Jahangir Shaikh for Applicant. A. Ghani Shaikh, AA.‑G. for the State. Date of hearing: 20th February, 1994. Applicant Awais Shibli has moved for quashment of Criminal Case No.360 of 1991 pending in Court of A.C.M., Latifabad Hyderabad, for offences punishable under sections 13 and 14 of Arms Ordinance. Said case is outcome of F.I.R. No.75 of 1989 P.S. "B" Section, Latifabad, Hyderabad. According to the F.I.R. on 1‑10‑1989 at 5‑00 p.m. a police party headed by S.H.O. Muhammad Ali left P.S. "B" Section, Latifabad for patrol duty. During the course of patrol at 5‑45 p.m. fire‑arm shots were heard from a bungalow in front of Board Office in Unit No.6, Latifabad. The police party gave such intimation to the S.D.M., Latifabad and the S.D.P.O., Latifabad and the members of law enforcing agency. Consequently everybody responded and came outside the said bungalow bearing No.41‑E, Unit No.6. Inmates of the house were called upon to come out. Ladies inside the bungalow replied that said bungalow belonged to applicant Awais Shibli and his brother Shuaib Shibli, Advocate. Subsequently S.H.O. Muhammad Ali in presence of the S.D.M. the S.D.P.O., Latifabad and the members of law enforcing agencies called upon the ladies to remain on one side of the bungalow which was to be searched for the purpose. of recovering unlicensed arms and ammunition. Later on said bungalow was searched. Police recovered from there a revolver bearing marks "Mark (iii) 38" in bad condition, one Revolver No.28812 with handle of black plastic in bad condition bearing mark "USA" at its barrel, one Pistol with magazine made in Spain bearing mark "725" on its iron handle, a red bandolier containing 5 live bullets, 7 empty bullets of M.M. rifle and 7 cartridges. Police was informed that said arms and ammunition belonged to Awais Shibli and Shuaib Shibli. Said articles were recovered under a Mashirnama and subsequently case was registered at P.S. "B" Section, Latifabad under Arms Ordinance against Awais Shibli and Shuaib Shibli. After due investigation challan was submitted in Court. Hence this application. Mr. Jahangir Shaikh, learned counsel for the applicant argued that the applicant was not present at the place of recovery, that the police had no evidence that the recovered arms and ammunition belonged to the applicant and that the case in question has been registered by police officials for harassment of the applicant and for keeping the applicant under detention for ulterior motive. It was added that conviction cannot possibly result on the basis of evidence collected and that the prosecution has been given reasonable time to conclude the trial but they have failed to do so deliberately, with mala fide intention. Mr. Abdul Ghani Shaikh, learned AA.‑G. opposed the application vehemently and argued that there was no justification to stifle the prosecution when the prosecution evidence was yet to come on record. Learned AA.‑G. challenged maintainability of the application under section 561‑A of Cr.P.C. on the ground that before moving such application the applicant had not invoked jurisdiction of the trial Court under section 249‑A of Cr.P.C. for acquittal. The point requiring determination is whether an application under section 561‑A of Cr.P.C. can be moved before moving the trial Court for acquittal under section 249‑A of Cr.P.C. The Supreme Court of Pakistan in the case of Ghulam Muhammad v. Muzammal Khan and others PLD 1967 SC 317 held that the inherent jurisdiction should not normally be invoked where another remedy is available, because inherent powers are preserved to meet a lacuna in the Criminal Procedure Code in extraordinary cases and that the inherent powers are not intended for vesting the High Courts with powers to make any order which they are pleased to consider to be in the interest of justice because the inherent powers are as much controlled by the principles and precedents as are its express statutory powers. In the case of Nasrullah alias Nasra 1987 MLD 1027 a learned Judge of Lahore High Court observed that inherent jurisdiction under section 561‑A is not an alternate jurisdiction or additional jurisdiction and cannot be invoked when an alternate remedy is available and that the trial Court is empowered to acquit the accused any stage of the case if it considers the challan to be groundless or finds that there is no probability of the accused being convicted of any offence. In the cited case exception was taken to the fact that the petitioner had come to the High Court at Lahore directly without invoking jurisdiction of the trial Court under section 265‑K of Cr.P.C. It was next observed that the petitioner should move the trial Court in the first instance, if so desired by him. A different view was taken in the case of Mian Munir Ahmed 1985 SCMR 257 where it was held that powers of the trial Court under section 249‑A and section 265‑K of Cr.P.C. are co extensive with the similar powers of the High Court under section 561‑A of Cr.P.C. and both can be resorted to but it would be proper to approach the trial Court in the first instance although there is nothing to bar the High Court from entertaining, in appropriate cases an application under section 561‑A of Cr.P.C. directly. In this way there is difference of opinion on the point at issue. Necessity to move the trial Court under section 249‑A, Cr.P.C. arises in the cases where the F.I.R. does not give complete idea, as to, what evidence would be adduced against the accused at his trial. If the F.I.R. gives an idea, as to, what evidence can come against an accused and if the Court considers that even if such evidence is brought on record, the person seeking quashment cannot be convicted, the proceedings against him are abuse of the process of Court and quashment can be ordered without the person seeking quashment having moved the trial Court under section 249‑A of Cr.P.C. However, where the F.I.R. does not give an idea as to what evidence would ultimately be led against the accused seeking quashment, then it would be proper for the person seeking quashment to move the trial Court first under section 249‑A, Cr.P.C. because in such a situation the trial Court can discuss the evidence that has come on record against the accused or that has yet to come on record and on that basis it can be determined if the case in question requires to be' quashed in light of the case‑law on the point. In such circumstances it may not be necessary for an accused to move the trial Court for acquittal under section 265‑K of Cr.P.C. In the instant case the recovery of incriminating articles was not in presence of the applicant. Moreover, the place from where the alleged recovery took place, is said to be in joint possession of applicant Awais Shibli and one Shuaib Shibli. In other words even according to the F.I.R. the recovery of the incriminating articles was not from the place exclusively in possession of the applicant. Even the incriminating articles are said to be property of applicant Awais Shibli as well as of Shuaib. In the circumstances there is absolutely no chance of the applicant being convicted on the basis of alleged recovery. This much is clear from the F.I.R. itself and in such circumstances, it was not necessary for the applicant to move the trial court under section 249‑A, Cr.P.C. before moving this application under section 561‑A, Cr.P.C. for quashment. The legal objection raised by the learned AA.‑G. stands overruled. The contents of the F.I.R., at their face value, do not establish against the applicant a case which can end in his conviction. There is no allegation even in the F.I.R. if the recovery of incriminating articles was from the exclusive custody of the applicant or from the place which was in exclusive custody of the applicant. Since there is no remote chance of conviction of the applicant on the allegations made in the F.I.R the pendency of the criminal case against the applicant is abuse of the process of Court. For the foregoing reasons, the proceedings in respect of Syed Muhammad Awais Shibli which are outcome of F.I.R. No.75/89 of P.S. "B" Section, Latifabad, are hereby quashed. Such short order was passed on 20‑2‑1994 and these are the reasons for the same. N.H.Q./M‑2030/K Proceedings quashed.