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Criminal Miscellaneous Applications Nos. 105 and 631 of 1987, heard on 12th April, 1987.

Criminal Procedure Code (V of 1898)--

---Ss. 249-A & 561-A--Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts. 3 & 26--Quashing of proceedings--Accused and co-accused filing application under S.249-A, Cr.P.C. before Magistrate--Magistrate acquitting co-accused but keeping application of accused pending till recording of some evidence--Case not appearing to be of no evidence- Record showing some witnesses to depose against accused--Order of Magistrate found legal--Petition for quashing of proceedings being premature impugned order did not call, for interferer--Petition dismissed in limine in circumstances.

Din Mohomed v. Mohomed Sharif and others P L D 1979 BJ 12 ref.

Sardar Mohomed Ishaque for Petitioner.

Rashid Tariq Khan for the State.

Date of hearing: 12th April, 1987.

This is an application under section 561-A, Cr.P.C. for quashment of proceedings pending against the applicant under Articles 3 and 26 prohibition of (Enorcement of Hadd) Ordinance, 1979, before the Additional City Magistrate Court No. 1, East Karachi.

The brief facts giving rise to the present case/application are that P.W. Majid Yar Khan is pilot in Plant Protection Department and had to go to New York for the treatment of his nephew who was blind. Majid Yar Khan informed the applicant who was his senior colleague about the above facts, on which the applicant Habib Ahmed told him that he was about to float his own Air Company, therefore, he asked witness to find out the prices of the Aeroplanes al New York and inform him about the position, and he will reach there immediately. The applicant Habib Ahmed further expressed that he was entrusting this job to Majid Yar Khan as he was his own man, and had better understanding about planes. This Habib Ahmed arranged for documents, and two air tickets and handed over the same to Majid Yar Khan. He also handed over one brief case to Majid Yar Khan with direction to deliver it to Dr. Daud. Majid Yar Khan flew to America in Pan American on 17-10-1981 and landed at Kennedy Airport, New York on the same date. He was intercepted at Airport by the Custom Authorities and about 1 Kg. of Heroin powder was recovered from the inner bottom of the brief case, and therefore, he was arrested. That later on P.W. Majid Yar Khan was put to trial and was convicted for four years. The counsel for Mr. Majid Yar Khan negotiated with the Governments of America and Pakistan for his innocence and he was released after four months. On release P.W. Majid Yar Khan contacted all the agencies and after necessary inquiries a case was registered against the applicant and co-accused and after necessary investigation final challan was submitted before the Magistrate on 11-10-1986.

Before the charge was framed against the accused, the present applicant and co-accused Kishwar Khan moved an application under, section 249-A, CI.RC. for their acquittal on the ground that there wa delay of about 3 years in registration of the case and there was no recovery from the possession of the accused. That the statement of convicted person could not be relied upon and is inadmissible in evidence, and there was no evidence to prove the case against the accused. The trial Magistrate after hearing the learned counsel appearing for the applicant Habib Ahmed and co-accused Kishwar, and Assistant Attorney on behalf of the State, acquitted co-accused Kishwar under section 249-A, Cr.P.C. while the application of the present applicant has been kept pending till some evidence about delivery of the said bag is recorded. In this connection the Magistrate relied upon Din Mohomed v Mohomed Sharif and others reported in P L D 1979 BJ 12 wherein it has been held that:-

"In appropriate case a Magistrate may, if considered desirable, record some evidence on any limited point relevant for the purpose of the decision of the said application:"

Since the application under section 249-A, Cr.P.C. is still pending decision before the Magistrate and the impugned order passed by Magistrate, is quite legal specially in view of the fact that this is not a case in which it cannot be said that there was no evidence at all against the applicant. It appears from the record that apart from P.W. Majid Yar Khan there are other witnesses also, and, therefore, the present application for quashment of proceedings is premature. The order passed by the Magistrate does not call for interference and, therefore, the application is dismissed in limine.

In view of the above, Crl. Misc. Application No. 631 of 1987 also stands dismissed.

S.A./H-19/K Application dismissed.

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