Dr. GHULAM MURTAZA Versus THE STATE

Through Criminal Miscellaneous Application No.62 of 2003, the applicant has sought quashment of the order, dated 3-7-2003 passed by the Sessions Judge, Nawabshah whereby he has directed registration of case against the applicant on the ground of his alleged absconsion from the lawful custody of the Court. Pursuant to the directions of the Sessions Judge, Nawabshah; the police of Police Station Nawabshah has registered a case under section 224, P.P.C. in Crime No. 110 of 2003.

2. During hearing of this matter I was informed by Mr. Basharat Ahmed Jatt, that he has also filed an identical Criminal Miscellaneous Application No.89 of 2003 on identical facts in this Court on behalf of his client Dr. Tahir Ahmed. Since the said proceedings of Mr. Basharat was not fixed today and the point raised therein was common, I, therefore, ordered the office to place the said Criminal Miscellaneous Application before me today for hearing to avoid conflicting judgment. Mr. Anwar Ansari, appearing for State has waived notice of the Criminal Miscellaneous Application No.89 of 2003.

3. I intend to dispose of both these criminal miscellaneous applications by this common judgment.

4. The facts pleaded in both the applications are that the applicants, in both the criminal miscellaneous applications, approached the Sessions Judge, Nawabshah for anticipatory bail in Crime No.97 of 2003. The Sessions Judge. Nawabshah had ordered notice but no interim bail was granted to both these applicants. The matter was adjourned at times and A finally on 3-7-2003 both these anticipatory bail applications were fixed before the Sessions Judge.

5. The tenor of the impugned orders of the Sessions Judge show that the applicants did appear on the first call, whereafter on the second call the applicants were restrained from appearing before the Sessions Judge on account of the fact that the Court room of the Sessions Judge was guarded by police and they apprehended their arrest at the hands of police as the Sessions Judge, Nawabshah though adjourned the matter at times, did not admit the applicants to interim bail.

6. The applicant Dr. Ghulam Murtaza in Criminal Miscellaneous Application No.62 of 2003, however, as an abundant caution sent statement/application to the Sessions Judge, Nawabshah through his relative informing him that he is being restrained from appearing in Court as the police has guarded the entire Court room. The Sessions Judge, Nawabshah dismissed his application in non-prosecution and has ordered registration of case against the applicants under section 224, P.P.C., which order is impugned in these proceedings.

7. In regard to the other applicant Dr. Tahir Ahmed in Criminal Miscellaneous Application No.89 of 2003, the identical order was passed by the Sessions Judge, Nawabshah though the said applicant also intimated the Court through his counsel that the Court was guarded by police and it is not possible for him to put in his appearance.

8. I have heard the learned counsel for the applicants in both the criminal miscellaneous applications. The learned State Counsel does not support the impugned orders.

9. It is unfortunate that the Judicial Officers abuse their authority by passing impugned orders of the nature over looking the settled law thereby causing serious inconvenience to the parties. Initially if a notice is issued on bail before arrest application, in normal circumstances the applicant is enlarged to interim bail. There is reported judgments to this effect that the application for bail before the arrest is admitted for hearing the applicants are normally granted interim bail. In these proceedings several adjournments were granted by the Sessions Judge, Nawabshah without passing interim orders which ex facie would amount to dismissing the bail before arrest. What is strange was that once it was brought to the notice of the Sessions Judge, Nawabshah that the applicant apprehend their arrest on account of police guarding the Court he was obliged, in law, to depute any officer to ensure this fact and, thereafter, should have granted interim bail to procure the attendance of the applicants in Court. Moreover, the dismissal of the bail applications of applicants for non-prosecution is foreign to criminal law. The Courts are bound to pass orders on merits irrespective of the absence of the party, whereas in the present case reasonable explanation was given by the applicants.

10. I have also noticed that the Sessions Judge, Nawabshah did not have any clue about the definition of "lawful custody". From the record it appears that he never granted interim orders, therefore, the applicants were never in the custody of the Court. The impugned orders were passed without looking into the ingredients of section 224, P.P.C., which shows either the Sessions Judge was incompetent or was negligent in passing orders of the nature.

11. It is high time that the Judicial Officers should behave in the manner to restore the confidence of the general public in institutions instead of inviting unwarranted trouble to the litigants by passing impugned orders which the law does not recognize. Excessive use of lawful powers is itself unlawful. In this regard the Honourable Supreme Court in the case of Independent Newspapers Corporation (Pvt.) Ltd. v. C Chairman Fourth Wage Board, reported in 1993 SCMR 1533, has held that powers conferred in the Public Authorities should not be pushed too far, for such conferment implies a restraint in operating that power so as to exercise it justly and reasonably. I cannot loose sight of the fact that Judicial Officers should not be negligent while exercising judicial powers of the nature. The Sessions Judge, Nawabshah being head of the District, should have been careful while directing registration of a criminal case against the applicants.

12. Mr. Basharat Ali Jatt, Advocate has relied upon the case of Sadiq Ali v. The State, reported in PLD 1966 SC 589 which case fully applies to the facts of the present proceedings and their Lordships have ordered quashment of the proceedings.

13. For the aforesaid reasons I allow both these criminal miscellaneous applications and set aside the impugned orders of the Sessions Judge, Nawabshah. I further direct the Sessions Judge, D Nawabshah to assign the proceedings in Crime No.97 of 2003 of P.S.A. Section Nawabshah, for trial in accordance with law, to any other Court other than himself. The listed applications stand disposed of.

H.B.T./G-6/K Order accordingly.