IN THE HIGH COURT OF SINDH AT KARACHI

Criminal Miscellaneous Application No. 871 of 2023

[ Muhammad Irshad Kamal VERSUS The State & Others ]

DATE ORDER WITH SIGNATURE OF JUDGE(S)

1. For orders on office objection

2. For hearing of main case

3. For hearing of M.A. No.13440/2023

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Date of Hearing: 27.02.2026
Date of Announcement: 09.03.2026

M/s. Syed Muhammad Jahangir and Muhammad Aslam, Advocates for Applicant
Mr. Muhammad Sohail Zafar Bhatti, Advocate for Respondent No.2.
Mr. Zahoor Shah, Additional Prosecutor General, Sindh.
Mr. Ahmed Khan Khaskheli, Assistant Advocate General.

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O R D E R

SHAMASUDDIN ABBASI, J.—Through the captioned Criminal Miscellaneous Application, the applicant has challenged the vires of the order dated 07.10.2023 passed by the learned IVth Additional District & Sessions Judge, Karachi East in Criminal Revision No.70 of 2023, whereby the order dated 25.07.2023 passed by the learned Xth Civil Judge & Judicial Magistrate, Karachi East was maintained. Through the said orders, the request made by the applicant through his attorney for stay of proceedings arising out of FIR No.1009 of 2022 under Section 489-F PPC, Police Station Gulshan-e-Iqbal, Karachi East was declined.

2. Mr. Syed Muhammad Jahangir, Mr. Muhammad Aslam and Mr. Sheikh Saqib Ahmed, learned counsel for the applicant, argued that the applicant seeks intervention of this Court under Section 561-A Cr.PC to set aside the orders dated 25.07.2023 and 07.10.2023 passed by the learned courts below. The applicant further prays that the criminal proceedings arising out of FIR No.1009 of 2022 under Section 489-F PPC be stayed during the pendency of civil litigation between the parties. It is contended that the dispute between the parties is essentially civil in nature, relating to settlement of business accounts, ownership of properties and the validity of cheques. It is submitted that several civil suits concerning the same transactions and properties are already pending before competent civil courts and therefore continuation of criminal proceedings would amount to abuse of the process of law. It is further submitted that the alleged cheques were issued during business dealings and not towards repayment of any loan or fulfillment of a legal obligation; hence the essential ingredients of Section 489-F PPC are not attracted. The applicant also contends that the FIR has been lodged with mala fide intention merely to pressurize and harass the applicant in respect of a civil dispute. In these circumstances, the applicant requests this Court to exercise its inherent jurisdiction, set aside the impugned orders and stay the criminal proceedings until the civil disputes between the parties are finally decided. Conversely, Mr. Muhammad Sohail Zafar Bhatti, learned counsel for Respondent No.2, along with Mr. Zahoor Shah, learned Additional Prosecutor General, Sindh, and Mr. Ahmed Khan Khaskheli, learned Assistant Advocate General, opposed the application and argued that the Criminal Miscellaneous Application filed by the accused through his attorney is not maintainable in law and is liable to be dismissed with costs, as the attorney is a stranger to criminal proceedings and the accused has neither appeared nor surrendered before the competent court. It is further contended that the accused purchased portions of Plot No. E-56/1, Gulshan-e-Iqbal, Karachi, for a sale consideration of Rs.30,000,000, for which he issued three cheques that were later dishonoured due to dormant account and insufficient funds, thereby committing fraud and causing financial loss to the respondent. It is submitted that FIR No.1009 of 2022 under Section 489-F PPC was lawfully registered and the accused cannot escape criminal liability merely by initiating civil proceedings or filing an application through an attorney. It is further argued that criminal and civil proceedings can proceed simultaneously and therefore the request to stay the criminal case is legally untenable.

3. Arguments heard and record perused.

4. The record reveals that the applicant/accused Muhammad Irshad Kamal is absconding. He has been declared a proclaimed offender, and proceedings under Sections 87 and 88 Cr.PC have been initiated against him. The primary meaning of the word “absconding” is to hide. A person may hide even at his place of residence or elsewhere and in either case he would be absconding when he does so. An absconding offender is a person against whom a warrant has been issued under Section 204 Cr.PC and who absconds or conceals himself so that such warrant cannot be executed. The word “proclaim” means to announce something publicly or to declare formally or officially. In the present case, the applicant has been declared a proclaimed offender. In such circumstances, it is to be examined whether enforcement of fundamental rights can be claimed by an absconder or proclaimed offender.

5. The applicant’s attorney has not disputed that the applicant was proceeded against under Section 87 Cr.PC and that a challan under Section 512 Cr.PC was submitted. It has also not been denied that the accused is aware of the criminal proceedings. His conduct in approaching the Court through an attorney while remaining absconding indicates that he is not acting as a law-abiding citizen. The purpose of declaring a person an absconder or proclaimed offender is to compel him to appear before the Court and face trial. The Criminal Procedure Code even permits attachment and sale of property of an accused as a last resort to compel his attendance.

6. From the above discussion, it is evident that the applicant Muhammad Irshad Kamal has been declared a proclaimed offender in the present case and has failed to appear before the Court or surrender before the competent authority despite being fully aware of the proceedings. He is absconder since submission of challan and was declared proclaimed offender vide order dated 08.08.2023. Learned counsel for applicant admits that still civil litigations are pending between the parties since 2023 and only plaintiff side has recorded their evidence, which reflects that still civil proceedings will take years to conclude. In such circumstances it is a settled principle of law that a fugitive from justice loses the right of audience and cannot seek relief through counsel or a power of attorney unless he first surrenders before the Court. Reliance in this regard is placed upon the judgments of the Honourable Supreme Court and the superior courts in the cases of Taufiq Asif v. General (Retd.) Pervez Musharraf (PLD 2024 SC 610), Lahore High Court Bar Association v. General (Retd.) Pervez Musharraf (2019 SCMR 1029), Ikramullah v. State (2015 SCMR 1002), Dr. Mobashir Hassan v. Federation of Pakistan (PLD 2010 SC 265), Karam Ellahi v. State (PLD 2007 SC 255), Awal Gul v. Zawar Khan (PLD 1985 SC 402), Ali Ahmad Sabri v. State (1982 SCMR 818), Hayat Bakhsh v. State (PLD 1981 SC 265), Inam-ul-Rahiem v. Chairman NAB (PLD 2018 Islamabad 251), Abid Farooq v. Federation of Pakistan (2022 LHC 2210), Muhammad Qasim v. SHO (2016 MLD 1238 Sindh) and Quaid Johar v. Murtaza Ali (PLD 2008 Karachi 342).

7. In view of the above discussion, it is evident that the applicant has willfully avoided his arrest and failed to surrender before the authorities. After being declared a proclaimed offender, he has lost the right of audience before this Court. Being a fugitive from law, the accused has also lost the right to have an advocate or attorney represent him unless he first surrenders before the Court. Learned counsel for the applicant has failed to point out any illegality or perversity in the impugned order dated 07.10.2023 passed by the learned IV Additional District & Sessions Judge, Karachi East in Criminal Revision No.70 of 2023 against the order dated 25.07.2023 passed by the learned X-Civil Judge & Judicial Magistrate, Karachi East. Accordingly, I find no reason to interfere with the impugned orders. Consequently, the instant Criminal Miscellaneous Application is dismissed, being without merit, with no order as to costs.

J U D G E