1998 P Cr (PLP)

HAMID ALI MIRZA, J.

This is a Criminal Miscellaneous Application under section 561-A, Cr.P.C. wherein the petitioners have prayed for quashment of proceedings in a case State v. Muhammad Ali initiated on the basis of F.I.R. No.263 of 1995, Police Station Mominabad, Karachi West, registered under section 13-D, Arms Ordinance, 1965 pending before learned Special Judge-I (STA), Karachi. Brief facts of the case are that S.H.O., Kanwar Asif of Police Station Mominabad while patrolling on 27-11-1995 at about 16-15 hours received information that a person' was having an unlicensed arm in Quaid-e-Awam Colony near Mustafa Mosque in Sector 4/F, Orangi Town, Karachi West, therefore, he reached there alongwith his staff and found the applicant whose personal search was made in presence of police officials when from the fold of trouser, a .32 bore pistol bearing No.15881, made in Pakistan was secured, consequently, he was arrested and such memo. of recovery of the pistol containing four live bullets was prepared in presence of Mashirs, H.C. Shehar Yar Khan; (ii) H.C. Mehmoodul Hassan; (iii) P.C. Mehboob Alam and (iv) P.C. Faizullah. After usual investigation, the applicant/accused was challaned before the Special Judge-I (S.T.A.), Karachi. Contention of the learned counsel for applicant is that weapon so recovered belonged to one Sher Hassan Khan son of Hassan Khan who was holding valid licence in his name and who could not be arrested but the applicant was booked for the said arm due to mala fide intention consequently the case was false. Learned State Counsel has argued that the case has not proceeded, consequently, no evidence has been recorded and further the arm alongwith bullet was recovered from the possession of the applicant, therefore, it could not be said that the case was false. He has placed reliance upon Muhammad Khalid Mukhtar v. State PLD 1997 SC 275 and Sheikh Mahmood Saeed and others v. Amir Nawaz Khan and another 1996 SCMR

839. The ground for quashment urged is that the arm viz. 32 bore pistol belonged to one Sher Hassan Khan who was holding valid licence in his name and the applicant has been falsely implicated in the case, consequently, the proceedings of the said case be quashed. The powers under section 561-A, Cr.P.C. can be exercised to prevent the abuse of process of any Court or to secure the ends of justice. In a case where there is allegation of false implication or of the evidence being false, the powers under section 561-A, Cr.P.C. cannot be exercised considering that if an exercise is undertaken at pre-trial stage to determine whether the prosecution evidence likely to come on record was true or false, it would lead to a finding without recording evidence. Reference may be made to Muhammad Khalid Mukhtar v. State PLD 1997 SC 275 wherein their Lordships have observed at p.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 pretrial 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 an 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. Amir Nawaz Khan and another 996 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 down 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." In absence of evidence, it could not be said in the circumstances of the case that no case under section 13-D, Arms Ordinance is made out against the applicant, consequently, the powers conferred under section 561-A, Cr.P.C. could not be exercised for the quashment of proceedings of Criminal Case State v. Muhammad Ali initiated on F.I.R. No.263 of 1995, Police Station Mominabad, hence this petition for quashment is dismissed with the directions to trial Court to expedite the disposal of the case. H.B.T./M-268/K Petition dismissed.