ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

H.C.A. No.371 of 2022

_____________________________________________________________________ Date Order with signature of Judge

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FRESH CASE:

1. For order on CMA No.3633/2022 (Urgent).

2. For order on office objection a/w reply as at ‘A’.

3. For order on CMA No.3634/2022 (Exemption).

4. For hearing of main case.

5. For order on CMA No.3635/2022 (Stay).

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Dated; 2^nd November 2022

Mr. Shahab Sarki, Advocate for Appellant.

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1. Urgency granted.

2. Learned counsel for the appellant undertakes to comply with office objection(s) before the next date of hearing.

3. Exemption granted subject to all just exceptions.

4&5. Instant High Court Appeal has been filed against the impugned order dated 01.11.2022 passed by the learned Single Judge of this Court in Suit No.1642 of 2022, whereby, according to learned counsel for the appellant, protection sought by the plaintiff against illegal arrest, humiliation as well as stay of criminal proceedings based on malafides has been declined. According to learned counsel, the malafide on the part of the prosecution, who are bent upon to implicate the appellant in false criminal proceedings, whereas, in respect of a blind FIR, in which the appellant has not been nominated, his name has, however, been mentioned in the interim challan on the very next day when a Constitutional Petition No.D-5772/2022 filed by the appellant seeking protection against arrest in said blind FIR was disposed of. Per learned counsel, in the above Constitutional Petition, the prosecution categorically stated that the appellant is not nominated in the aforesaid FIR, therefore, such petition and protection provided to the petitioner against arrest was dismissed for being infructuous. Learned counsel for the appellant further submits that Customs Authorities have already registered similar FIR No.ASO 105-/2022-VEH-HQ, dated 30.08.2022, in which the appellant after seeking protection from this Court by filing Constitutional Petition, is facing trial. However, the prosecution having failed to arrest and humiliate the appellant in view of the protection given by the learned Divisional Bench of this Court in C.P. No.D-5267/2022 lodged another blind FIR and have malafidely introduced his name while submitting interim challan and there is apprehension that he will be arrested, tortured and humiliated by Customs Authorities. It has been prayed that the impugned order may be modified and protection against his arrest may be provided.

Heard the learned counsel for the appellant, perused the record of this case and the impugned order passed by the learned Single Judge, which prima facie reflects that no final order has been passed, whereas, tentative observation has been made to the effect that “criminal proceedings cannot be stayed at this stage as competent Court is seized of the matter”, moreover, appellant has the remedy to seek protection against his arrest by filing bail before arrest before the trial Court or from any other competent Court of jurisdiction. While confronted with hereinabove position, learned counsel for the appellant submits that learned Single Judge was pleased to observe that “prima facie, record supports the contention of the plaintiff”, therefore, could have at least granted protection against arrest, if not to stay the criminal proceedings. It has, however, been submitted by the learned counsel, that since the appellant is not keeping good health nowadays, and there is serious apprehension of his arrest, torture and humiliation in a blind FIR, whereas, no role has been assigned to the appellant even in the interim challan, therefore, submits that appellant will be satisfied and will not press instant High Court Appeal, if protection against his illegal arrest be provided to the appellant, to enable him either to approach the learned trial Court for seeking bail before arrest or to obtain protective bail from this Court, for a period of seven days.

Accordingly, instant High Court Appeal stands dismissed alongwith listed application. However, the appellant will be at liberty to seek appropriate remedy in the aforesaid terms by approaching the relevant forum/Court within a period of four (4) days from the date of this order, however, keeping in view the peculiar fats, the malafide alleged, and the admitted stance of prosecution in respect of same blind FIR before this Court in abovementioned Constitutional Petition, during this period, appellant may not be arrested in the subject FIR subject to furnishing solvent surety in the sum of Rs.200,000/- with P.R. bond in the like amount to the satisfaction of the Nazir of this Court.

J U D G E

*Farhan/PS*