MUHAMMAD KHALID BALOCH Versus THE STATE

1. Applicant Muhammad Khalid Baloch son of Arif Baloch, who is facing trial for offence under Articles 3 and 4 of the Prohibition Order, 1979 in the Court of Sessions Judge, Karachi (East) seeks through this application under section 561-A of Cr.P.C., quashment of said proceedings.

2. The facts of the case in brief are that, on 7-9-1993 F.I.O. Muhammad Khan Dayo of P.N.C.B. (F.I.U.-II), on spy information raided bungalow No.C/4, in Cosmopolitan Colony, Karachi. when the applicant Muhammad Khalid Baloch and his father Arif Baloch are stated to have fled therefrom by scaling over the wall Inside the bungalow a coaster was parked with a key lying in it and on the search of the coaster 85 Kgs. of Charas were found from the luggage boot and on further search 3 Kgs. of heroin powder was recovered from the secret columns of the ceiling of the vehicle. A passport in the name of the applicant and a photograph of his father Arif Baloch were secured from the dash board of the vehicle, F.I.R. being Crime No.65 of 1993 was lodged.

3. After thorough investigation of the case, applicant's father Arif Baloch was sent up to stand trial in the Court of Sessions Judge, Karachi (East) where evidence of P. Ws. Muhammad Aslam, Ghulam Murtaza and Muhammad Khan Dayo was recorded. It may be mentioned that during the investigation of the case identification test was held on 30-1-1994 in presence of First Class Magistrate, District East, Karachi, where applicant was not picked-out in the parade.

4. On the date of incident, it is stated, applicant was sick, suffering from tuberculosis and admitted in Ward 15 of Chest Medicine in Liaquat Medical College Hospital, Jamshoro, whereas his father Arif Baloch was at Dubai having left Karachi much before the date of alleged raid. The case against Arif Baloch proceeded and by judgment dated 1-8-1994 he was acquitted. Before the judgment was announced, a supplementary challan was submitted against the applicant Muhammad Khalid Baloch on 11-7-1994. Having learnt of the challan submitted against him, he surrendered before this Court and was granted protective bail on 9-8-1994. Applicant then surrendered before the trial Court of Sessions Judge, Karachi (East) and by order dated 11-8-1994 interim pre-arrest bail was granted, which was confirmed on 28-8-1994.

5. It is contended by applicant's learned counsel is that when challan was submitted against applicant's father Arif Baloch, it was mentioned therein that no case was made out against the applicant herein and, therefore he was not was also mentioned in the challan that in the identification parade held before a Magistrate, the applicant was not identified and thus there was no evidence against him to warrant submitting challan against him. Contention of learned counsel further is that the F.I.R. was totally false and the name of the applicant and his father Arif Baloch, who were said to have fled from the bungalow, were incorrectly mentioned by the complainant Inspector Muhammad Khan Dayo with mala fide intention. Arif Baloch, father of the applicant, who faced trial was acquitted and his presence in the bungalow at the time of raid was disbelieved on the basis of documents produced by him showing that he was out of Pakistan and at Dubai on the said date. It is also contended that there was no material whatsoever with the Investigating Officers to submit supplementary challan against the applicant and in the circumstances, particularly in view of the judgment of acquittal passed in the case of applicant's father, continuance of proceedings would be abuse of the process of Court and the same are liable to be quashed.

6. On 19-3-1995 Mr. Moula Bux Bhatti, Advocate, had appeared alongwith Mr. Raees Ahmad, F.I.O., for the State and on said date learned counsel for the applicant, had concluded his arguments. It was at the request of Mr. Moula Bux Bhatti, that the matter was adjourned as he had to seek further instructions. Matter was adjourned to 26-3-1995 when Muhammad Khan Dayo and Raees Ahmad, the two Investigating Officers, appeared and Mr. Moula Bux Bhatti remained absent without intimation although the date was taken by him.

7. I have heard the Investigating Officer, Mr. Muhammad Khan Dayo, who lodged F.I.R,, investigated the case and sent-up the case against applicant's father Arif Baloch only. He had nothing to say in the matter except that during investigation he did not find applicant herein involved in the case and, therefore, no challan was submitted by him against the applicant, Mr, Raees Ahmad stated that a letter dated 30-6-1994 was given to hits by the Deputy Director, Anti-?Narcotic Task Force, Karachi, for re-investigation of the case, During re-investigation he carne to know that the plot where the coaster was parked and from which Charas and heroin was recovered, belonged to the mother of the applicant Muhammad Khalid Baloch and the vehicle was registered in the name of applicant Muhammad Khalid Baloch. He further stated that a passport in the name of applicant was recovered from the vehicle and under instructions of his superior officers he had submitted supplementary challan. A photostat copy of the letter dated 30-6-1994, issued by Deputy Director, Anti-Narcotics Task Force, Karachi, is submitted by him, which is taken on record.

8. I have considered all aspects of the case, gone through the contents of the F.I.R. and the judgment of the learned Sessions Judge, passed in the case against applicant's father Arif Baloch. During investigation of the case by the F.I.O. Muhammad Khan Dayo, even the passport allegedly secured from the vehicle and in the name of the applicant was available but that by itself coupled with the fact that applicant was not identified in the identification parade, challan was submitted against him with observation that his involvement in the case was not proved during investigation. Applicant's father, who was initially challaned, was acquitted as he successfully proved that on the date of the raid and F.I.R., he was at Dubai. The applicant was also out of Karachi and admitted in Liaquat Medical College Hospital, Jamshoro, under going treatment for tuberculosis, as is evident from medical certificate Annexure ' F'.

9. I have also gone through the evidence of P.Ws. Muhammad Aslam, Ghulam Murtaza and Muhammad Khan Dayo, who were examined by the learned Sessions Judge, Karachi (East) during trial of applicant's father. The perusal of the evidence shows that the link of the applicant with the alleged recovery of the heroin and Charas is not established. Merely because the case was re-investigated by Investigating Officer Raees Ahmad under the instructions of his superiors with no further evidence coming forth, it was highly improper to put up a supplementary challan against the applicant and no conviction could be recorded against applicant in a case like this. The co7tinuance of proceedings against the applicant would thus be an abuse of the process of Court and the same are hereby quashed. The applicant is discharged of the bail bonds. These are the reasons for the short order dated 26-3-1995.

10. N.H.Q./M-2123/K ????????????????????????????????????????????????????????????????????????????? Proceedings quashed.