1998 P Cr (PLP)

The contention of learned counsel for the applicant is that the applicant is a Hindu by religion and she possessed a valid permit for purchase of wine therefore, in view of Article 5 of Prohibition of Hadd Order no offence could be said to have been committed by the applicant/accused and continuance of proceedings would amount to abuse of process of law hence liable to quashment. He further contends that recovery of alleged wine is effected from the house of the applicant where she has been residing in absence of warrants as required under Article 22 of Enforcement of Hadd Order hence said recovery and continuance of the proceedings would be illegal. Learned counsel for the applicant in support of his contentions has placed reliance (i) State through Advocate‑General, Sindh v. Bashir and others PLD 1997 SC 408 on the point that recovery witnessed by police personnel in the circumstances of the cited case could not be believed, (ii) Mushtaq Ahmad v. The State PLD 1996 SC 584 on the point that the Mashirs of recovery of the weapon be made from the locality and (iii) Ashiq Hussain v. The State 1995 MLD 932 wherein the learned Judge in Chambers observed that since the Investigating Officer had committed an illegality‑in the procedure in violation of the provisions of Article 22 of the Prohibition Order and section 103, Cr.P.C. the whole exercise of recovery of any narcotic from the premises of the appellant had become nullity in the eyes of law hence the appeal was accepted. I have gone through all the cited cases and would appear that all cited cases were decided after appraisal of evidence in appeals and not under inherent powers under section 561‑A, Cr.P.C. Article 5(2) of Prohibition (Enforcement of Hadd) Order, 1979 reads as under:‑‑ "Nothing contained in Article 3 or Article 4 shall apply to any act done under, and in accordance with the provisions of this Order, or the terms of any rule, notification, order or licence issued thereunder. The provisions of Articles 3 and 4 shall not apply in following cases:‑‑ (1) ....................................................................................... (2) The consumption by non‑Muslim citizen of Pakistan as part of a religious ceremony." Article 22 of Prohibition (Enforcement of Hadd) Order, 1979 reads:‑‑ "

22. Issue of search warrants.‑‑‑ (1) if any Collector, Prohibition Officer or Magistrate, upon information obtained and after such inquiry as he thinks necessary, has reason to believe that an offence under Article 3, Article 4, Article 8 or Article 11 has been committed, he may issue a warrant for the search for any intoxicant, material, still, utensil, implement or apparatus in respect of which the alleged offence has been committed. (2) Any person who has been entrusted with the execution of such a warrant may detain and search and, if he thinks proper, but subject to the provision of clause (1) of Article 12, arrest any person found in the place searched, if he has reason to believe such person to be guilty of an offence under Article 3, Article 4, Article 8 or Article 11." In the instant case charge has not been framed as stated by the counsel for the applicant. There is no material on the record that the applicant was in. possession of the said wine for consumption as apart of religious ceremony. The prosecution material state that the applicant was selling wine lying in the blue cooler in the street of compound. There is nothing on the record to show that wine was secured from the house premises of the applicant/accused: There is to be at (cast suggestion or denial to show that the wine so secured from the applicant was for consumption of the applicant as part of religious ceremony and that wine so secured was from the house premises of the applicant and not from the street requiring warrant of search as provided under Article 22 of said Order hence the contentions raised cannot be appreciated under section 561‑A, Cr.P.C. Reference .may be made to (i) Muhammad Khalid Mukhtar v: The State PLDI 1997 SC 275 wherein their Lordships have observed at page 279:‑‑ "As observed in the case of Asif Ali Zardari 1994 SCMR 798 the powers under section 561‑A. Cr.P.C. can be exercised to prevent abuse of the process of any Court or to secure the ends of justice. Such powers cannot be exercised in mechanically or in every case where there is allegation of false implication or of the evidence being false. Exercise of such powers cannot further the ends of justice, if an exercise is undertaken at pre‑trial stage to determine whether the prosecution evidence likely .to come on record is true or false. In the case of Raja Haq Nawaz v. Muhammad Afzal and others PLD 1967 SC 354, it was held that quashment of proceedings at any early stage gives an unfortunate impression of stifling of criminal prosecutions, by exercise of an extraordinary power which is given for the dispensation of complete justice, in the forms provided by law. Similar view was taken in the case of Gian Chand v. State 1968 SCMR 380 where it was observed that determination of the guilt or innocence of an accused, depends on totality of facts and circumstances revealed during the trial, and when such a stage had not been reached, the application for quashment of the proceedings in the trial Court, was rightly rejected by the High Court." (ii) Sheikh Mahmood Saeed and others v. Amit Nawaz Khan and another 1996 SCMR 839:‑‑ "We have decided to refrain from making any observations on the alleged compromise lest it should adversely affect the respective claims of the parties. Suffice it to say, at this juncture that the ground urged before us hardly furnishes a valid ground for the quashment of the proceedings under section 145, Cr.P.C. Even otherwise, normally every case should be allowed to proceed according to law and resort to the provisions of section 561‑A, Cr.P.C. should not be lightly made, as this would tend to circumvent the due process of law. This was the principle laid clown by this Court in Ghulam Muhammad v: Muhammad Khan PLD 1967 SC

317. Nonetheless, we, may express a word of caution that each case must be judged on its own special facts and circumstances. We are of the considered view that power vests in the High Court to quash criminal proceedings, if it is satisfied‑that a false complaint had been brought and the process of Court is, therefore, being abused not to advance the cause of justice but to subject the accused persons to unnecessary harassment. We are convinced that the present case is not of that nature and consequently, the order passed by the learned Single Judge calls for no interference by this Court. It could not be said in the circumstances that there is abuse of process of law or that quashment would be to secure the ends of justice. Let some evidence to come on record and then the applicant/accused if she so desires she may make application under section 249‑A of the Cr.P.C. to show that no offence could be said to have been made out under law or that the charge framed was groundless or that there was no probability of her conviction or she may make application under section 561‑A, Cr.P.C. if so advised in accordance with law. However, in the stated circumstances no quashment could be ordered under section 561‑A, Cr.P.C. in the instant case, consequently this criminal miscellaneous application has no merit hence is dismissed. The case is an old one therefore, the learned Magistrate is directed to dispose of the case within four months. H.B.T./L‑8/K Application dismissed