2006 PLP 2123 (YLR)

NADEEM AZHAR SIDDIQUI, J.

Office has raised objection that in view of judgment reported as Sadarullah v. The State (1998 PCr.LJ 2001) this revision is not maintainable. The learned counsel for the applicant submits that he had already filed a statement dated 14-6-2005 with the prayer that this revision may be converted into criminal miscellaneous application and relied upon reported judgment of Haji Muhammad Saleem Khan v. Muhammad Aslam (1990 SCMR 211), in which the Honourable Supreme Court while dealing a case of quashment under section 16 of Offence of Zina (Enforcement of Hudood) Ordinance, (VII of 1979) has held as under: -- "As far Article 203-DD of the Constitution, it deals with the revisional powers of the Federal Shariat Court in Hudood cases but evidently does not bar the inherent jurisdiction of the High Court under section 561-A, Cr.P.C. pending against anyone in a Court of criminal jurisdiction." The jurisdiction under section 561-A, Cr.P.C. can be invoked to make such orders as may be necessary to give effect to A any order under Cr.P.C., to prevent abuse of process of any Court and to secure ends of justice. The trial Court has first passed order dated 29-8-2003 on the basis of order dated 18-12-2003 passed by Joint Civil Judge and F.C.M., Shikarpur and thereafter passed order dated 23-5-2005 impugned in this application on the basis of an application moved by public prosecutor. Both the orders were passed under the provisions of Criminal Procedure Code and this Court can exercise inherent jurisdiction to prevent abuse of process of any Court as well as to secure ends of justice, I therefore, convert this revision application into criminal miscellaneous application and proceed to decide it on merits. Office is directed to number it as Criminal Miscellaneous Application.

2. By this criminal revision application the applicant has challenged the order dated 23-5-2005 passed by the learned IInd Additional Sessions Judge, Shikarpur on an application dated 23-5-2005 moved by the Public Prosecutor for joining the applicant as accused to face the trial in Sessions Case No.60 of 2003, re: State v. Gullan and others, arising out of Crime No.102 of 2002, Police Station Stweart Ganj Shikarpur, for offence under sections 17(3), Offences Against Property (Enforcement of Hudood) Ordinance, 1979, 353, 188 and 506(2), P.P.C. The learned counsel for the applicant has submitted that by an earlier order dated 29-8-2003 the learned trial Court on the report dated 18-12-2002 has ordered that after the evidence of the complainant and P.Ws. it will be considered whether the name of accused Maqbool Ahmed be included as accused in the case or not. He submits that in presence of the earlier order, the fresh order was not justified and even otherwise the impugned order was passed without notice to the applicant and without affording him proper opportunity of hearing. On the other hand, the learned State Counsel has supported the contention of the learned counsel for the applicant and has submitted that the order was passed without hearing and in ignorance of the earlier order dated 29-8-2003 and it will be appropriate to decide the implication of the applicant after some evidence is recorded. I have heard the learned counsel for the parties and perused the record made available before me. At the face of it, it is clear that the impugned order was passed on the same date when the application was made, without issuance of any notice to the applicant and for this count alone the order is liable to be set aside. In judicial system the issuance of notice and right of hearing are very important and any order passed without hearing the affected party is liable to be set aside. The other contention of the learned counsel for the applicant has force that when an earlier order is in the field, the second order is not, justified unless some evidence is recorded to show the implication of the applicant. In view of the above, I set aside the order dated 23-5-2005 and direct the trial Court to examine the complainant and P.Ws. and then, after hearing the applicant, decide whether the applicant is involved in the alleged crime or not.

3. In view of the above order, the operation of the N.B.Ws. issued by the trial Court is suspended. The criminal miscellaneous application is disposed of in the above terms. H.B.T./M-76/K??????????????????????????????????????????????????????????????????????????????????? Order accordingly.