HABIBULLAH KHAN vs THE STATE

' GHULAM NABI SOOMRO, J.--- By this criminal miscellaneous application applicant Habibullah Khan prays for quashment of his case pending trial before the Court of learned Special Judge (Anti- Narcotics), Karachi West for offences under various provisions of the Control of Narcotic Substances Act, 1997. The sections of the Act are 6 to 9, 14 and 15.

2. Applicant's earlier quashment application bearing Criminal Application No,524 of 1999 was dismissed as not pressed vide order, dated 1642-1999.

3. The prosecution case briefly stated is that on 20-11-1999 complainant Manzoor Ali, Assistant Director, Anti-Narcotic Force, P.S.1, Gulshan-e-Iqbal, Karachi was entrusted with inquiry papers for the purpose of legal action against the applicant-accused in the drug trafficking case wherein co- accused Aslam Masih, a Sea Man was arrested on 5-9-1997 by D.E.A. From on board P.N.S.C. Ship Malakand at Hauston Seaport Texas U.S.A. And 1.5 Kgs. Of heroin powder was recovered. From his possession. Said heroin powder was allegedly given by the applicant-accused Habibullah Khan to his co-accused Aslam Masih, at Jackson Bazar, Kemari, Karachi. On the basis of such enquiry a case F.I.R. No,23 of 1999 Police Station A.N.F.-1 was registered on 20-11-1999 and the applicant was arrested on 28-11-1999.

4. The applicant according to F.I.R. Was a member of Merchant Navy and already on suspects list of the Anti-Narcotic Force.

5. Applicant's application under section 265-K, Cr.P.C. Has been rejected by the learned trial Court, on the ground that there is evidence of confession by the co-accused and conversation cassettes record between the two accused and that final challan was awaited as the Investigating Agency was collecting full evidence.

6. It was argued by Mr. Qadir Khan, learned counsel for the applicant that F.I.R. Was lodged after 2 years' delay. Challan was not submitted within 17 days. The applicant was innocent and that the confession of co-accused implicating the applicant was inadmissible in law having no evidentiary value. Learned counsel relied upon cases reported as:-- 1977 SCM R 292, PLD 1991 FSC 53, 2000 SCM R 122. ' and some decisions in unreported cases titled as Criminal Miscellaneous Application No,44 of 2000 re: Abdul Qadir Motiwala v. The State, decided on 14-3-2000, Criminal Miscellaneous Application No,114 of 1948, re: Qurban Hussain v. Ch. Muhammad Ramzan and 4 others, decided on 18-8-1998, Criminal Miscellaneous Application No,646 of 1994 re: Syed Rizwan Ahmed v. The State, decided on 25-2-1996.

7. On the other hand, Mr. Shoaib M. Ashraf, learned Special Prosecutor for the (A.N.F.) State, has argued that there is sufficient evidence against the applicant. Besides the confession, there is other material in the shape of evidence including the record of conversation between the two accused and securance of telephone numbers of the applicant from the possession of the co-accused Aslam Masih. Learned Prosecutor submitted that more evidence was being collected in the case.

He further submitted that collection of evidence in such cases involves a lot of intricacies hence delay in F.I.R. Or failure in submission of report under section 173, Cr.P.C. Could not be fatal to prosecution.

8. The inherent jurisdiction under section 561-A, Cr.P.C. Vesting in a High Court is certainly not available for throttling the process of trial before a trial Court nor is it aimed at allowing accused of substantive offences seeking their release through short cut methods by invoking the inherent jurisdiction. Insufficiency or inadequacy of evidence cannot form a ground for quashment of a case nor some lack of evidence would be a valid or legitimate ground for such purpose. A criminal case can be quashed where there is total lack of prosecution evidence. Such is not the case here.

The provisions of section 561-A, Cr.P.C. Are-preserved to meet a lacuna in the procedure albeit such jurisdiction can be exercised to quash the orders which are without jurisdiction, coram non judice and mala fide or where the continuance of proceedings amounts to abuse of process of law or trial appearing futile exercise and wastage of time. It is also well-known that no facts of two criminal cases are alike. Each case has to be dealt with according to its own peculiar facts and features.

9. We have gone through the entire case-law relied upon by the learned counsel for the applicant and we fmd the applicant's case distinguishable from the cases referred above and we do not find his case as exceptional one.

10. Being fortified in our views by the cases reported as PLD 1994 SC 281, PLD 1971 SC 677 and 1997 PCr.LJ 836, we dismiss this application. Above application was dismissed by a short order, dated 30-3-2000 and these are the reasons for the same.