ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

   Crl.  Bail. Appln. No. S - 334 of 2019.

 

 

 

 

Applicant:                               Gada Hussain Shaikh

                                                Through Mr.Ayaz Ahmed Bhayo

                                                Advocate.

 

 

Respondent:                            The State

                                                Through Mr.Khalil Ahmed Maitlo

                                                DPG.

 

 

Date of Hearing 17th June, 2019.

 

 

                                              O R D E R

 ADNAN-UL-KARIM MEMON, J:     Basically, through the captioned Bail Application, the Applicant has called in question the order dated 03.06.2019 passed by learned Special Judge  Anti-Corruption, Sukkur, whereby he issued NBWs of the Applicant on the premise the he failed to appear before the court on the date of hearing on 30.6.2019.

2.    Mr. Ayaz Ahmed Bhayo learned Counsel for the Applicant has briefed that on 4.11.2003 a Cr.No.GO.17/2003 was registered against him by the ACE Sukkur, u/ s 161,  409.467, 468, 471, 34, PPC read with section 5(2) Act II of 1947 on the purported allegations leveled in the FIR; that Applicant has been appearing in the aforesaid matter before learned trial Court regularly; that on account of his illness on the very date, he could not put his appearance before the learned trial Court and in this regard an application  for his exemption for the day was moved on his behalf, however the same was declined by the learned trial Court on the ground that no proof of his illness was produced; that the learned court was not justified in issuing NBWs against the applicant, when a justiciable cause was shown to the learned trial Court; that there is shocking delay in the disposal of the present matter, which initiated in the year 2003 and has not yet concluded though the issue involved in the matter is simple one; that the applicant is ready and willing to appear before the learned trial Court to face the agony of trial if the impugned NBWs issued against him by the learned trial Court are suspended.

3.   I inquired from the learned counsel for the applicant as to how this protective bail application is maintainable under section 498-A Cr.P.C before this Court against the NBWs issued by the learned trial Court. He replied that this Court can convert the present Protective bail application into criminal miscellaneous application under section 561-A Cr.P.C and quash the NBWs issued against the applicant on the premise that the applicant cannot appear before the learned trial Court due to pendency of NBWs against him. He lastly prayed for allowing the application.

4.    Mr.Khalil Ahmed Maitlo learned DPG is present in Court in some other matters, waives notice of this protective Bail application and states that this protective bail application may be converted into criminal miscellaneous application and appropriate orders may be passed in order to secure the ends of justice.

5.    I have heard learned counsel for the applicant, and learned DPG and perused the material available on record minutely with their assistance as well as impugned order passed by the learned trial Court and the reasoning given by him while issuing NBWs against the applicant.

6.    Upon perusal of the pleadings and arguments extended thereon by

the learned counsel for both the Parties, the basic primordial question requires my determination is whether this Court can convert and or convert one kind of proceeding into another?

7.    To address the above proposition of law with regard to the Power to convert and or convert one kind of proceeding into another is always existed and can be exercised by the High Court not only at an advance stage in order to prevent injustice. No fetters or bar could be placed on the powers of High Court to convert one kind of proceeding into another and to decide the matter either itself in exercise of its jurisdiction or to order its transfer to another Court having jurisdiction or may remit it to Court/forum/authority having jurisdiction on merits. The High Court in number of cases converted appeals into revisions or vice versa or Constitution Petitions into appeals or revision and vice versa. Reference is made to the following case law:-

          In the case of Jane Margret William v. Abdul Hamid Mian (1994 SCMR 1555), Capital Development Authority v. Khuda Baksh and 5 others (1994 SCMR 771), Shams-ul-Haq and others v. Mst. Ghoti and 8 others. (1991) SCMR 1135),Muhammad Anis and  others v. Abdul Haseeb and others (PLD 1994 Supreme Court 539,Province of Sindh and another v. Muhammad Ilyas and others (2016 SCMR 189) Engineer Musharaf Shah v. Government of Khyber Pakhtunkhwa through Chief Secretary and 2 others (2015 PLC (C.S) 215), The Thal Engineering Industries. Ltd.  v. The Bank of Bahawalpur Ltd and another (1979 SCMR 32), Karamat Hussain and others v. Muhammad Zaman and others (PLD 1987 Supreme Court 139), and in the case of Mian Asghar Ali v. Government of Punjab and others (2017 SCMR 118).

8.  To sum up the matter in hand and after seeking guidance from the decision rendered by the Hon’ble Supreme Court in the case of Muhammad Akram Vs. DCO Rahim Yar Khan and others (2017 SCMR 56).  I am of the considered view that the Courts are sanctuaries of justice and in exercise of authority to do ex-debito justitiae, that is to say remedy a wrong and to suppress a mischief to which a litigant is entitled. No fetters or bar could be placed on the High Court to convert and treat one kind of proceedings into another kind and proceed to decide the matter either itself as provided in the constitution or transfer to any other Court having jurisdiction or remit to the competent authority/forum or Court for decision on merits.

9.     In view of above this, protective bail Application is converted into Criminal Miscellaneous Application under section 561-A Cr.P.C, and convert the operation of NBWs issued against the Applicant by the learned trial Court into BWs, enabling the Applicant to furnish appropriate bond before the learned trial Court. However, Applicant is directed to appear before the trial Court on the next date of hearing and in case of failure the order passed by the learned Court on 03.06.2019 shall be operative.

10. Office is directed to assign proper number to the present matter accordingly.

11.  Before parting with this order, I have noted that the matter pertaining to the year 2003, and trial has not yet concluded, the delay in conclusion of the trial prima-facie is shocking, therefore, in view of such position of the case, learned trial Court is directed to conclude the trial preferably within a period of two months and intimate this Court accordingly.

12.   The aforesaid Misc. Application stands disposed of in above terms.

 

 

                                                                                                  JUDGE

 

 

Akber.