1983 P Cr (PLP)

Muhammad Ali Shaikh for Applicant. Nemo for the State. Date of hearing : 4th February, 1982. The above matter has been called twice since morning. It is now 12.45 p. m. but nobody has appeared on behalf of the State. This is a case of 1976, 1 have proceeded to hear on merits. The learned Advocate for the applicant has submitted in support of the above application, that no doubt the applicant is the owner of the launch in question, but neither in the F. I. R. or in the evidence of witness that were produced before the Special Judge at the time of the grant of bail application nothing is said against the present applicant that he was present on launch at the time when it was being chased or Seized and/or that he was one of the persons, who engaged in firing after the occupants of the launch has abandoned the same and taken position on the ground against the custom's squad. In view of this the learned Advocate for the applicant submitted, that the present case pending before the learned trial Court cannot result in the conviction of the present applicant and in this connection the learned Advocate for the applicant invited my attention to the order dated 26th September, 1975 of the learned Special Judge (Customs and Taxation) Karachi, passed on the bail application of the present applicant. The learned Advocate for the applicant further relied upon the cases reported in P L D 1978 Pesh. 105, P L D 1974 S C 5 and P L D 1974 Kar. 477 in support of his contentions and submitted that filing of the case against the present applicant in view of his submissions amounts to abuse of the process of the trial Court and as such the proceedings pending against the present applicant are liable to be quashed. I have gone through the order dated 26th September,. 1975 of the learned Special Judge (Customs and Taxation) Karachi passed on the bail application of the present applicant, in this very pending case No. 122/75 and find, that the Special Judge has clearly mentioned, that the name of the present applicant does not transpire in the F. I. R. as well as in any of the statements of the prosecution witnesses to the fact that either he was in the launch when the said launch left for purposes of fishing on 27th February. 1975 or at the time when the launch was intercepted and found containing the smuggled goods and as such no overt act has been assigned to the present applicant in the pending case in question, so as to attract the provisions of section 156 (8) or (89) of the Customs Act 1969 and consequently the learned Special Judge granted him bail. I have also gone through the authorities cited by the learned Advocate for the applicant and in my opinion all the authorities cited by the learned Advocate for the applicant are applicable to the case of the applicant. The interpretation of the word "concerned" given in the case reported in P L D 1978 Pesh. 105 fully supports the contentions raised by the learned Advocate for the applicant. I am in respectful agreement with this interpretation of the word "concerned" as laid down in this authority, for the reasons given in the said authority. In view of this I am of the opinion, that in view of the admitted position and the stand of the prosecution, as mentioned in the order dated 26th September, 1.975 of the learned Special Judge (Customs and Taxation) Karachi, the evidence in possession of the prosecution is not likely to lead to the conviction of the present applicant and as such continuance of the proceedings against him, before the learned trial Court would amount to abuse of the process of the said Court. Therefore, in view of my above conclusion I allow the ‑ above application and quash the proceedings pending against the applicant above‑named only, in case No. 122/75 in the Court of Special Judge (Customs and Taxation) Karachi, under section 156 (8) and (89) of the Customs Act, 1969. Proceedings quashed