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Criminal Miscellanous Application No. 223 of 1983, decided on 2nd February, 1984.

--Ss. 561-A & 265-K--Customs Act (IV of 1969), S. 156(i)(8)(77)- Quashing of proceedings--Prosecution unable to prove prima facie case against accused--Evidence of witness on which trial Court wanted to rely upon not implicating accused--Case of co-accused identical and his appli cation under section 265-K, Criminal Procedure Code, accepted by trial Court--Observation of trial Court that application under section 265-K in respect of accused still premature not acceptable--All four witnesses in case not supporting prosecution case and no other evidence available to connect accused with guilt--Proceedings quashed.

Raja Oureshi for Applicant.

Ghulamally Agha for the State.

Date of hearing: 12th March, 1984.

This is an application filed by one Ghulam Muhammad Khan under section 561-A, Cr.P.C. in which he has prayed for the quashment of the proceedings pending against him in the Court of Special Judge (Customs and Taxation), Karachi. The applicant alongwith other accused is facing trial under section 156(1)(8)(77) of the Customs Act, 1969.

2. The prosecution case against the applicant briefly is that on 21^st October, 1981 at about 5.15 a.m. Senior Preventive Officer Mumtaz Hussain Qureshi received spy information about smuggling of Charas out of 1 Pakistan. He organised raiding party and proceeded to the Freight Gate of the Airport where 6 wooden cases were found lying. One of these six wooden cases was pasted with sticker of Phillipine Airway Bill No.079-0319-, 4973, destination Manchester Via Amsterdam. On examination S.P.O. Customs recovered 336 Kgs. of Charas from the wooden cases. During investigation it transpired that the applicant alongwith others in collusion, and collaboration made an attempt to smuggle out, contraband Charas. The case was challaned and applicant is facing trial.

3. On 20th October, 1982 applicant Ghulam Muhammad made an application under section 265-K, Cr.P.C. before the trial Court which was rejected by an order dated 26th January, 1983.

4. The learned Special Judge in his order stated that as many as 4 witnesses have been examined while statements of 12 witnesses are to be recorded and that four out of these witnesses namely Junaid Siddiqui, Maqsood Alam, Yaqoob Pal and Abdul Rashid, as spelt out from their statement recorded under section 161, Cr.P.C. the name of accused Ghulam Muhammad is likely to transpire. He rejected the application as being premature.

5. The applicant then moved this Court for quashment of the proceed ings. The Criminal Miscellaneous Application for 136/83 was disposed of on 3rd March, 1983, by my brother Judge Mr. Justice Z.C. Valiant in which directions were issued to the trial Court to examine at least P.W. Maqsood Alam', Yakoob Pal and Abdul Rashid within three weeks and applicant was allowed to file fresh application for quashment if so advised.

6. The applicant Ghulam Muhammad once again filed fresh application for quashment as Criminal Miscellaneous Application No. 223/83. He also produced certified copies of the statement of the 3 witnesses who were examined in pursuance of the orders of this Court. The application came up for hearing before this Court when it was found that applicant had not moved the trial Court as provided under section 265-K, Cr.P.C. therefore the directions were issued to the trial Court to dispose of the application within two weeks. The second application has also been rejected by the learned trial Court by an order dated 4th March, 1984.

7. Mr. Raja Qureshi, Advocate for applicant has contended that there is no iota of evidence against the applicant and trial of the applicant is abuse of process of law. He has stated that no evidence whatsoever has come on record against the applicant and there is nothing to show that any evidence is likely to come. He has also placed copy of an order of learned Special Judge (Customs and Taxation), Karachi passed on 26th January, 1983 whereby he has accepted the application of co-accused Abdul Rehman and acquitted him. The order dated 4th March, 1983 of the learned Special Judge (Customs and Taxation), Karachi shows that he has recorded statements of prosecution witnesses Maqsood Alam, Yaqoob Pal and Abdul Rashid and he has admitted in his order that they did not support the prosecution case against the applicant and have been declared hostile. He is of the view that 4th witness Junaid Siddiqui is to be examined who in 161, Cr.P.C. statement had implicated this accused and assigned the role of overt act.

8. Mr. Agha Ghulam Ali, Advocate for the State has supported the quashment and stated that there is no evidence against the applicant.

9. From the circumstances and evidence it is clear that the prosecution has not been able to prove any prima facie case against the applicant and the learned Special Judge has himself stated that he wants to rely on the evidence of one Junaid Siddiqui who is likely to support the case. He has not mentioned in his order that what kind of evidence is likely to come against the applicant. I do not agree with the observations of the learned Special Judge that the application under section 265-K, Cr.P.C. is still premature when he himself has accepted the application of co-accused Abdul Rehman and observed that it would be entirely futile and amount to abuse of process of law if case proceeds against Abdul Rehman. The case of applicant is also identical, however copy of deposition of Junaid has also been placed on record. He has been examined and he has not implicated the applicant.

Now all the four witnesses have not supported the case and there is no other evidence to connect the applicant with guilt. Therefore, I accept this quashment application. The case should proceed against the remaining accused.

M.Y.H Proceedings quashed

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