2015 GBLR 114

JAVED KHAN Versus State

Citation2015 GBLR 114

CourtSupreme Appellate Court Gilgit Baltistan

Judge(s)Raja Jalal-ud-Din, Actg. C.J. and Muzaffar Ali

ORDER

1. RAJA JALAL-UD-DIN, Actg. CJ.--- This petition for leave to appeal has been preferred against the impugned judgment/order dated 18-2-2015 in Case No. W. Petition. 06/2015 passed by the learned Division Bench of Chief Court Gilgit-Baltistan. The same has been preferred for quashment of FIR. No. 28/2014, dated 14-12-2014 Police Station Aliabad Hunza.

2. The learned counsel for the petitioners mainly contended that the FIR is a result of mala fide intention, which has been registered to harass the petitioners in question.

3. The perusal of the FIR reveals that no case is made out against the petitioners and as such the FIR needs to be quashed. That the sections under which the petitioners have been charged are not attracted in the instant case, hence, the FIR under section 561-A, Cr.P.C. needs to be quashed. Furthermore, the Mining Rules 1948 are not being extended to Gilgit-Baltistan, therefore, the FIR needs to be quashed. That there is no legal restriction on transportation of the precious and semi precious stones from one part of Gilgit-Baltistan to other. That 68 bags of garnets are semi precious stones, therefore, the same could not be impounded.

4. The learned counsel has also placed on the file a letter of Ministry of Finance dated 05-11-2012 of Deputy Secretary, Ayesha Makhdoom, wherein it is reflected that registered exporters may be facilitated in the carriage of precious and semi precious stones from Gilgit-Baltistan to the other Provinces of Pakistan. Another letter dated 07-02-2013 of the Assistant Chief, (Mumtaz Hussain) states that the Chief Secretary, Gilgit-Baltistan has lifted the ban on the movement of precious and semi precious stones from Gilgit-Baltistan to the other Provinces of Pakistan. Another letter dated 07-04-2014 regarding Draft Mining Concession Rules is in process for approval but the same has yet not been done so. The learned counsel for the petitioners relied on the above arguments and he has produced a case law under title "K.M. Hussain and 3 others v. Faiz Ullah Sharif and another" (sic.) PCr.LJ Karachi pg 1094." in support of his argument as well.

5. The learned counsel for the petitioners is of the view that in light of the above arguments and keeping in view the record and the presented case laws, it would be futile exercise to proceed with the matter in the Trial Court, therefore, the FIR needs to be quashed and declared a nullity.

6. The learned Advocate General came forward with the arguments that the Mining Rules 1948 have been extended to Gilgit-Baltistan vide SRO No. 797(1)/2003 dated 08-8-2003 and the same are applicable up to date. The gazette notification regarding the extension of the Mining Rules is presented in the Court and the same have been perused. The contention of the FIR have been scrutinized as well, the Advocate General Gilgit-Baltistan is also of the view that when an alternate remedy was available at that time, therefore the writ petition could not be preferred in the High Court as such the writ petition has rightly been turned down by the Chief Court Gilgit-Baltistan. The Advocate General Gilgit-Baltistan has also presented case laws under title "(1) Bashir Ahmed v. Zafar-ul-Islam, PLD (sic.) Supreme Court pg. 298. (2) Shevo v. Regional Police Officer, Hyderabad Region and 15 others PLD 2009 Karachi pg 24." in support of his arguments.

7. We have gone through the contents of the FIR, wherein the complainants have referred Rule 79 as stated is reproduced as under,

8. "Penalty for unauthorized working or obstruction:-

(1) If any person starts mining of any mineral outside the area granted to him or in an area for which he has not obtained a license or a mining lease in accordance with these rules or illegally obstructs free access of license of the lessee to the licensed of leased area, directly or indirectly tries to interfere with the operations by licensee of lessee or any person or persons found in position of unauthorisedly extracted minerals he shall be punishable with imprisonment for a term which may extended to three years or with fine which may extent to Rs.20,000/- (twenty thousand) or with both. This offence shall be cognizable under the Criminal Procedure Code.

(2) Besides the punishment and fine as mentioned in sub-rule above, the total value of the mineral extracted un-authorisedly shall be liable to be recovered from such persons. The total value of unauthorized excavated or mined mineral shall be estimated by the licensing authority".

9. The perusal of the above cited rules reveal that the possession of the precious and semi precious stones from an individual, who has got no authority for transportation of the same, could be dealt with under law. The extension of the regulation of Mines and Oil Fields and Mineral Department (Federal Control) Act, 1948 to Gilgit-Baltistan has also been proved from the record and the Government of Gilgit-Baltistan (the then Northern Areas) has also framed rules there under vide S.R.O 957(I)/2003 dated 4th October, 2003. The trial of the instant case has not yet started and as such a writ petition could not be preferred when there was an alternative remedy available under law. The letters placed on record by the learned counsel for the petitioners are of no legal value as the minings rules have been extended to the Gilgit-Baltistan are still standing.

10. In this view of the matter, we feel inclined that the petitioners have got no case for quashment, hence, this petition for leave to appeal is refused and the same is disposed off accordingly.

11. HBT/171/GB Petition dismissed.