KARAM ELAHI vs The STATE and 2 others

' LAL JAN KHATTAK J.---Through this petition filed under section 561-A, Cr.P.C., the petitioner seeks quashment of F.I.R. No,3 dated 11-2-2013 registered against him at Police Station FIA, D.I. Khan under section 489-F read with sections 17, 18 and 22-B of Emigration Ordinance, 1979.

2. Relevant facts of the case are that respondent Muhammad Sa'adat Ali moved an application to the Deputy Director FIA, Dera Ismail Khan alleging therein that the petitioner fraudule,ntly induced him for emigration to a foreign country and received from him Rs,2,00,000. On his failure to emigrate, the petitioner was asked by the respondent to return him the amount so received but he refused. However, pursuant to so many entreats petitioner issued a cheque of Rs,2,00,000 to the respondent which on presentation to the concerned bank was bounced for closure of the bank account of the petitioner.

3. On the basis of the aforesaid application, the local police registered a case against the petitioner vide F.I.R. Mentioned above which he wants to quash through the instant application under section 561-A, Cr.P.C.

4. At the very outset, Mr. Kamran Hayat Miankhel, learned Federal counsel raised a preliminary objection to the maintainability of the present petition on the ground that the petitioner is still fugitive from law and thus cannot seek aid from this Court under its inherent power under section 561-A, Cr.P.C.

5. Learned counsel for the petitioner in response to the above preliminary objection argued that there is no express provision or bar in the Code of Criminal Procedure which bound down a person seeking justice under the inherent power of the High Court to appear in person. In order to make his case, the learned counsel placed reliance on (1) 1993 SCMR 1873, (2) 1995 PCr.LJ 1672 and an unreported judgment delivered in Criminal Miscellaneous No,78 of 2011 decided on 4-5-2012, but on perusal the same were found to be of no help to him.

6. Perusal of record shows that Judicial Magistrate, D.I. Khan on 25-1-2013 in the above case issued non-bailable warrants of arrest against the petitioner and the executing agency reported that the accused-petitioner is avoiding his lawful arrest in the case. Consequently upon the above report the concerned Judicial Magistrate initiated proceedings against the petitioner under sections 87- 88, Cr.P.C. For attachment of his property.

7. After discussing the background of the case, I now advert to the pivotal question raised in the instant case that whether a person who is still fugitive from law is entitled to any audience before a court f 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"

8. In another case reported in 1999 SCMR 1619, their Lordships 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 the above rule is fulfilled i.e, surrender first, entertainment of petition later."

9. 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".

10. 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",

11. Admittedly a competent Court of law has issued warrants of arrest against the petitioner for his appearance and it is also on record that the petitioner is avoiding his 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.

12. For the above discussion and reasons this Court is of the view that the instant petition of the petitioner cannot be entertained for his being fugitive from law. The same is therefore, dismissed.