2021 P Cr. L J 43
[Balochistan]
Before Muhammad Kamran Khan Mulakhail, J
SARDAR KHAN and another ---Petitioners
Versus
The STATE ---Respondent
Criminal Miscellaneous Quashment No. 328 of 2018, decided on 21st December, 2019.
Coal Mines Regulations, 1926 ---
----S. 15 ---Criminal Procedure Code (V of 1898), Ss. 249 -A & 561 -A---Inherent powers of
High Court ---Quashing of order ---Trial Court, after taking cognizance of the case, issued
summons to the petitioners but the petitioners did not appear before the court ---Later, non -
bailable warrants were issued with the direction that in case of non -execution of warrant, the
Naib Tehsildar to appear in person ---Application for cancellation of warrant was filed, which
was accepted and warrants were withdrawn ---Accused ag ain did not appear and his non -
bailable warrants were issued ---Application for the cancellation of warrants was again filed,
which was accepted and warrants were again withdrawn ---Application under S. 249 -A,
Cr.P.C. was filed on the next date of hearing, f or the acquittal of the accused, which was
dismissed ---Validity ---Record showed that Judicial Magistrate, in the present case, issued
several non -bailable warrants of arrest against the petitioners, but on each occasion the Trial
Court was approached by th e counsel for the petitioners, with assurance that the petitioners
would appear before the court, while the application filed for exemption of the personal
appearance of one of the petitioners was also declined ---Admittedly, a competent court of
law had be en repeatedly issuing the warrants of arrest against the petitioners for their
appearance and it was also on record that the petitioners were avoiding appearance and also
their lawful arrest ---If the quashment petition was entertained for its decision on m erit
without the petitioner's surrender in obedience to the warrants under S. 204, Cr.P.C., issued
by a competent court of law, then it would tantamount to abuse of the process of the court, as
a person who fled or escaped from law lost some of his normal rights available to him under
the law, therefore, the present petition could not be entertained as the petitioners were
fugitive from law ---Petition was dismissed, in circumstances.
PLD 1956 FC 43; 1999 SCMR 1619; PLD 2002 Lah. 74 and 1999 PCr.LJ 1381 re l.
Mujeeb Ahmed Hashmi for Petitioners.
Muhammad Yunus Mengal, APG for the State.
Date of hearing: 20th December, 2019.
ORDER
MUHAMMAD KAMRAN KHAN MULAKHAIL, J. ---This petition is directed
against the orders dated 06.11.2018 and 22.11.2018 ("impugned o rders") passed by learned
Judicial Magistrate/MFC, Harnai, whereby the application under section 249 -A, Criminal
Procedure Code (Cr.P.C) filed by the petitioners were dismissed. Hence, this petition with
the following prayer:
"It is accordingly, respectf ully prayed that proceeding pending before Judicial
Magistrate amounts to abuse of process of law same may kindly be ordered to be
quashed, in the interest of justice".
2. Facts of the case are that three separate prosecution statements against alleged
contravention of sections 15, Regulations 25(1), Regulation 121 and Regulation 70 of the
Coal Mines Regulations 1926, were received by the trial court for taking cognizance and
summons were issued to the petitioners, to which the petitioners did not appear b efore the
court, therefore, there non -bailable warrants were issued with the direction that in case of
non-execution of warrant, the Naib Tehsildar Shahrag to appear in person; that an application
for cancellation of the warrants was filed by the petitione r No.1, which was accepted the
warrants were withdrawn; that on 16.10.2018, Mr. Qasim Khan Tareen, Advocate appeared
on behalf of his senior counsel Mr. Munir Hashmi, Advocate, with the request that the latter
would be filing his power, coupled with an app lication for cancellation of non -bailable
warrants, which application was accepted and the non -bailable warrants were again
withdrawn; that on 29th October 2018, the application under section 249 -A, Cr.P.C. was
filed for acquittal of the accused/petitioner s, which was dismissed vide order dated 06th
November 2018. Feeling aggrieved the instant petition is preferred.
3. Heard, record perused.
4. Perusal of record shows that Judicial Magistrate, MFC Harnai in the above cases
issued several non -bailable warrants of arrest against the petitioners, but on each occasion
the trial court was approached by the counsel for the petitioner, with assurance that the
petitioners would appear before the court, while the application filed for exemption of the
personal appearance of the petitioner No.2 was also declined vide order dated 06.11.2018.
5. After discussing the background of the case, I now advert to the pivotal question
raised in the instant case that whether a person who avoids appearance before the court, is
entitled to any audience before a court of law or not. In a celebrated judgment reported in
PLD 1956 FC 43, the august Supreme Court of Pakistan ruled that;
"The court would not act in aid of a person who was a fugitive from justice".
In another ca se reported in 1999 SCMR 1619, the Hon'ble apex Court again held that;
"The above rule is in conformity with the fundamental rule of the administration of
justice that persons seeking aid of justice in a criminal case should submit to the due
process of justice. Clearly, the Court would not act in aid of person who is a fugitive
from justice and the petition filed by such a person against his imprisonment seeking
leave to appeal is not entertainable unless and until the condition precedent laid down
in th e above rule is fulfilled i.e. surrender first, entertainment of petition later."
In PLD 2002 Lahore 74, it was held by their Lordships that;
"The convict who becomes a fugitive from the law is not entitled to invoke the
provisions of section 32 of the Ordinance to challenge his conviction".
In 1999 PCr.LJ 1381, a Division Bench of Lahore High Court held that;
"Superior Courts in our country have taken the view that an individual seeking review
of a judicial order must surrender to the process of law and if he decamps, he loses
right of audience".
6. Admittedly, a competent Court of law has been repeatedly issuing the warrants of
arrest against the petitioners for their appearance and it is also on record that the petitioners
are avoiding appearance and also their lawful arrest. In suchlike situation, if the instant
quashment petition is entertained for its decision on merit without the petitioner's surrender
in obedience to the warrants under section 204, Cr.P.C. issued by a competent court of law,
then it would tantamount to abuse of the process of the court as a person who flees or escapes
from law loses some of his normal rights available to him under the law.
For the above discussion and reasons this Court is of the view that the instant petitio n
of the petitioners cannot be entertained for their being fugitive from law. The same is
therefore, dismissed.
This detail order will constitute the reasoning of short order dated 20th December
2019.
JK/118/Bal. Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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