2010 PLP 1329 (YLR)

SHAHID ANWAR BAJWA, J.--An F.I.R. (F.I.R. No.257 of 2008) was registered at Police Station Sohrab Goth on 5-5-2008. It was stated in the F.I.R. that on a tip of a spy information that arms were being brought to Karachi by a private bus from upcountry, a police party was deputed on super highway. Then it received information that arms had been unloaded from the private bus and had been transferred to a Pajero. When a Pajero came, police approached Pajero and stopped it on the road. Recovery was made from the Pajero. However due to non-cooperation of people of that area only police constables were cited as witnesses. On search one Kalashnikov and one plastic bag containing 3000 rounds were recovered. Later the name of driver was disclosed as the present applicant. Arms and the ammunition were taken into custody. From under the seat of the accused driver currency notes for Rs.30,00,000 were also recovered as well as two mobile phones. Another F.I.R. (F.I.R. No.258 of 2008) was also recorded at the same Police Station on the same day. It was stated in the second F.I.R. that on 5-5-2008 at 10-30 p.m. statement under section 154, Cr.P.C. of Anaar Khan was recorded, who had arrested the present applicant and on his disclosure that other arms were recovered from a bus present in Janat Town Road, Al-Asif Square. The police party was constituted and from the bus, from which, when encircled, two persons ran away and on search from last seat of the bus police found five China rifles, two .7-MM rifles, one Kalashnikov and one telescope and ammunition. Challan was submitted on the first F.I.R. on 2-6-2008. On the second F.I.R., the present applicant has been acquitted under section 265-K, Cr.P.C. vide order dated 27-1-2009 passed by IInd-Additional Sessions Judge, Malir Karachi. Learned counsel for applicant submitted that in the two F.I.Rs. there is same Investigating Officer, same witnesses and same police officers and in view of acquittal in the second F.I.R. there does not appear to be any possibility of accused being convicted in the first F.I.R. Learned counsel further submitted that there was no private" witnesses. He relied upon Muhammad Rashid Ahmed v. Muhammad Siddique PLD 2002 SC 293, to contend that it is available to maintain this application for quashment of F.I.R. in constitutional jurisdiction, learned .counsel relied upon Syed Muhammad Awais Shibli v. The State 1995 MLD 601, Mian Munir Ahmad v. The State 1985 SCMR 257, Ch. Gulzar Ahmad and another v. The State and another "2004 YLR 1321 and Ali S. Habib and another v. S.H.O. Margalla Police Station Islamabad and 3 others 2003 YLR 2126. Learned Additional Prosecutor General submitted that the cause for F.I.R. No.257 of 2008 is different from the cause for F.I.R. No.258 of 2008 and the time of two incidents is also different. He further submitted that material role ascribed to the applicant is different in both the cases. Charge was framed on August 15th, 2008 and Challan has been submitted. I have considered the submission made by the learned counsel and have also gone through the record. The first question is could applica tion be maintained" under section 561, Cr.P.C., when no application under section 265-K, Cr.P.C. has yet been filed before the trial Court. Learned counsel for the applicant relied on substantial case-law on this point. In Syed Muhammad Awais Shibli's case it was held that once F.I.R. gives an idea, as to what evidence would come against the accused and if the Court considers that even if such evidence is brought on record, the accused cannot be convicted and the proceedings against him are abuse of the process of the Court and could be quashed without the person seeking quashment or without his having moved the trial Court under section 249-A Cr.P.C. It was, in this case, held that when there was no direct evidence available against accused as per F.I.R. and the contents of F.I.R. did not establish any case against the accused the pendency of proceeding against accused would amount to abuse of process of Court and the F.I.R. was consequently quashed by the High Court. In Mian Munir Ahmad's case it was a case in which a Director of a Company was proceeded against for the offence under the industrial and Commercial Employment (Standing Orders) Ordinance, 1968. The Supreme Court first held that provision of section 561-A applied to criminal proceeding before a Labour Cour4 and thereafter held that the powers of trial Court under section 265-K Cr.P.C. an coextensive with the similar power of the High Court under section 561-A, Cr.P.C. and both can be resorted too. Although the appropriate course, it was held, was to move the Court below at first instance, but there is no such bar on High Court from entertaining application in appropriate cases. Nothing extra would be gleaned from referring to Ch. Gulzar Ahmad's case and to Ali S. Habib's case. The law appears to be very clear on this point. The point is that applicant/accused, can move the Court below under section 265-K, Cr.P.C. In fact that would be appropriate and proper course. However if accused instead of moving trial Court directly comes to the High Court under section 561-A, Cr.P.C., there is no bar or fetters on the power of High Court to entertain the application, when the case is made out for quashment the proceeding against the applicant. The powers of the High Court under section 561-A, Cr.P.C. are coextensive with the power of the trial Court under 'section 249-A, Cr.P.C. or, as the case may be, under section 265-K, Cr. P' C. This application is, therefore, held to be maintainable. Coming to the merits of the case, it is alleged in the first F.I.R., rightly or wrongly, that is not for me to decide in these proceedings, that the applicant was caught red-handed by the police, and from a vehicle, which he was driving, one Kalashnikov and 3000 rounds were recovered. In the second F.I.R. it is stated that on his pointation things were recovered from the bus. Admittedly he was driving the Pajero and he was not driving the bus. Therefore incident of second F.I.R. is different and distinguishable. The role assigned to the applicant in the first F.I.R, is direct, whereas in the second F.I.R. it is merely stated that on his pointation arms were recovered from the bus. It is not alleged in the second F.I.R., that either applicant was driver of, or the applicant had any dominion over the bus. Therefore his acquittal in the second F.I.R. would not have effect on the case against him in the first F.I.R., which case must proceed on its own merits. Charge has already been framed against the accused and it is for the trial Court to pronounce upon the guilt or innocence of the applicant. This Criminal Miscellaneous Application is devoid of merits and is, consequently, dismissed. H.B.T./W-13/K Application dismissed.