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Criminal Miscellaneous Application No. 1494 of 1986, decided on 10th December, 1986.

‑‑‑S. 561‑A‑‑Penal Code (XLV of 1860), Ss. 365, 343 & 330‑‑Quashing of proceedings‑‑Action against complainant and his son started on the report of Deputy Inspector‑General of Police, Special Branch, detention order passed by Chief Minister and on the basis of such order, detention order signed by a Deputy Secretary‑‑Statements of prosecution witnesses containing no allegation against applicant and at the most he was responsible for preparing summary for Chief Minister, in his capacity as Home Secretary‑‑Final charge submitted in Trial Court over 6 years ago yet not a single witness examined so far‑‑ Proceedings quashed, in circumstances.

Mst. Saleem Bibi and 3 others v. Fazal Hussain 1976 PCr.LJ 555; Mst. Hamida v. The State and another P L D 1973 Kar. 478; Mukhtiar Ali v. The State 1979 P Cr. L J 108 and Mst. Zaitoon v. The State 1979 PCr.LJ 279 ref.

Abdul Qadir Halepota for Applicant.

Abdul Rahim Kazi, A.A.‑G. and Abdul Ghafoor Mangi, A.A.‑G. for the State.

Dates of hearing: 4th and 10th December, 1986.

On 15‑8‑1977 Mr J.A. Rahim gave a report to the police to the effect that on 2‑5‑1977 he was dragged from his house by uniform Police Officer and others to the Ferozabad Police Station where he was joined by his son Sikandar Rahim. They were both blind folded at the police station and then taken to a house in Defence Housing Society where they were kept till midnight on 4‑5‑1977 and were maltreated. They were then brought back to their house where they were confined. On they basis of this. report F.I.R. No. 275/1977 was registered on 16‑8‑1977 at Ferozabad Police Station. The case was investigated and interim challan was submitted on 21‑11‑1977 in the Court of some Magistrate showing Dad Muhammad (Now dead) Akbar and Amin as the only accused. A final charge was submitted on 30‑7‑1979 and the present applicant was also named as an accused person.

The interim challan as well as final charge‑sheet did not state any specific allegation against the present applicant. The applicant was admitted to bail by this Court. Uptil now the case is pending in the Court of IInd Additional Sessions Judge and an application under section 265‑K, Cr.P.C. was moved in that Court. The same was rejected by the learned Additional Sessions Judge on 8‑11‑1983, as according to him the application was premature and that the police officers have implicated the applicant.

Now this application has been moved by the applicant for quashment of proceedings pending under section 365/343/330, P.P.C. in the Court of IInd Additional Sessions Judge, Karachi.

I have gone through the record with the assistance of the learned counsel for the applicant and learned A.A‑G. for the State.

Though the interim challan was submitted on 20‑11‑1977 and final charge‑sheet was submitted on 30‑7‑1979 but not a single witness has been examined by the Court uptil now. Mr. J.A. Rahim in the first information report has referred to an incident which had occurred 15 months before his report. No allegation has been made against the applicant. Two witnesses are stated to have implicated the present applicant.

P.W. Abdul Wahab in his 161, Cr.P.C. statement has stated that he requested Mr. J.A. Rahim to accompany him to police station. Mr. J.A. Rahim came to the police station with him. He informed Mr. Aijaz Hussain Shah about the arrival of Mr. J.A. Rahim who informed that Mr. J.A. Rahim should be detained at the police station. After few minutes Mr. Junejo, Home Secretary, Government of Sind enquired about Mr. J.A. Rahim. Mr. Sikandar son of J.A. Rahim also arrived at police station. This witness further stated that he told Mr. Junejo that his son Sikandar Rahim is also there. Mr. Noor Khan has ordered him that Sikandar Rahim be asked to sit with his father.

P.W. Syed Aijaz Hussain Shah in his statement has stated that he received a telephone call from the Home Secretary who asked him about the detention orders. He told him that the detention orders, on both the detenus Mr J.A. Rahim and Sikandar Rahim had been served.

P.W. Mumtaz Muhammad Baig, Deputy Secretary, Home Department, Government of Sind in his deposition has stated that he was Deputy Secretary and in the month of May, 1976 a case under section 42/49 D.P.R. was registered against Mr. J.A. Rahim and his son Sikandar Rahim at Police Station Ferozabad. The case was registered on the report, dated 30‑4‑1976 sent by D.I.‑G.P. Special Branch. This indicates that this information was based on the source report who had the personal knowledge about the incident. The detention orders for the above two persons were signed by him on the basis of summary order prepared by the Home Secretary and approval obtained on it of the then Chief Minister Mr. Ghulam Mustafa Jatoi.

The statements of Syed Aijaz Hussain Shah and Abdul Wahab would only indicate that the Home Secretary had enquired about the detention of Mr. J.A. Rahim and his son Sikandar Rahim. First of all the witnesses have not stated that they could identify the present applicant by his voice on telephone. Additionally at the most the applicant had enquired about the detention of the aforesaid persons. They have not said that Mr. J.A. Rahim and his son were detained on the order of the applicant. The applicant could not be convicted even if the statements of these witnesses be accepted as gospel truth. In fact the report was made by D.I.‑G.P. Special Branch against the aforesaid persons. At the most the applicant prepared summary and sent to the Chief Minister. The order has been passed by the then Chief Minister. The order of detention shows that the Government of Sind is of the opinion that it is necessary for the purposes of preventing them from acting in a manner prejudicial to the security and interest of Pakistan, to require them to reside and remain in their Bungalow for a period of three months. In substance the action against Mr. J.A. Rahim and his son was started on the report of D.I.‑G.P. The detention order was passed by the Chief Minister. On the basis of the order of the Chief Minister the Deputy Secretary Mr. Mumtaz Muhammad Baig signed the detention order. The statements of the witnesses do not contain any allegations against the applicant. The allegation made in the statement, even if accepted do not constitute any offence against the applicant. The prosecution in such circumstances would not succeed. The final charge has been submitted on 30‑7‑1979 and uptil now not a single witness has been examined. It amounts to misuse the process of the Court.

The learned A.A.‑G. has stated that partial quashment cannot be ordered. He has referred to the case of Mst. Saleem Bibi and 3 others v. Fazal Hussain 1976 P Cr. L J 555. This case does not support the contention of the learned A.A.‑G. On the other hand it supports the contention of the applicant. In this case it has been observed that no process can be issued against the ladies and case proceedings against them were quashed.

The learned counsel for the applicant has referred to the case of Mst. Hamida v. The State and another P L D 1973 Kar. 478 wherein it has been observed that if a case which cannot possibly succeed is allowed to continue this must result in harassment of the accused persons whose acquittal is in any way certain and that this would be an abuse of the process of the Court and that in any event under section 561‑A, Cr.P.C. an order to quash the proceedings would be one which would secure the ends of justice'. He has also placed reliance on the cases of Mukhtiar Ali v. The State 1979 P Cr. L J 108 and Mst. Zaitoon v. The State and another 1979 P Cr. L J 279.

The upshot of the above discussion is that it would be an exercise in futility if the trial Court is directed to proceed with the case against the applicant on the basis of no evidence. 1, therefore, accept this criminal miscellaneous application and quash the proceedings pending against the applicant in the Court of IInd Additional Sessions Judge, Karachi under section 365/343/330, P.P.C. in Criminal Case No. 911 of 1977 (now No. 1531 of 1985).

S.G.D./M‑51/K Proceedings quashed.

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