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Criminal Miscellaneous Application No. 409 of 1970, decided on 18th January 1971.
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----S. 561‑A‑‑‑Quashment of proceedings‑Externment order challenged in civil Court and decreed in applicant's favour but subjected to appeal in High Court No fresh initiation of proceeding, held, could be taken so long as order was not set aside on appeal‑‑Magistrate, notwithstanding civil Court decree taking cognizance of offence and issuing process against accused‑Magistrate, held, could not sit in appeal over judgment of civil Court nor could pass order in disregard of same Proceedings quashed‑Pakistan (Control of Entry) Act (LV of 1952), S. 4 and foreigners Act (XXXI of 1946), S. 14
Azizullah Shaikh for Applicant.
A. Karim Lakhan for A.G. for the State.
Date of hearing : 18th January 1971.
This is an application under section 561‑A, Cr. P. C. to quash the proceedings pending against the applicant under sections 3 and 4 of the Pakistan Control of Entry Act of 1952 and Foreigners Act in the Court of the Joint Sub‑Judge and Ist Class Magistrate, Mirpurkhas.
In the year 1958 the District Magistrate, Tharparkar under the orders of the Central Government issued the externment order against the applicant who then moved the Central Government and obtained stay order. However, the stay order was sub sequently vacated and, therefore, the applicant filed civil, suit No. 18,8/59 challenging that order on the ground that he was a citizen of Pakistan and therefore, the externment order could not be issued against him. The suit was however dismissed and he filed an appeal in the District Court. The learned District Judge by his judgment dated 8th March 1966, set aside the judgment of the lower Court and decreed the suit. Against this 'judgment the Government filed a second appeal in this Court which is still pending.
In August 1969, the applicant was arrested by Mirpurkhas Police and the case was sent to the Martial Law authorities by applying Martial Law Regulations but the Martial Law authorities declined to proceed with the case and directed the civil authorities to pursue the matter in a regular Court of law. Subsequently the Superintendent of Police Tharparkar directed the S. H. O. by his letter dated 6th June 1970, to cancel the charge‑sheet. The report to that effect was sent to the S. D. M., Mirpurkhas for issuance. of necessary summary but instead the learned S. D. M. took cognizance of the offence under section 190(1)(c), P. P: C. and issued process and transferred the case to the joint Civil Judge and Ist Class Magistrate, Mirpurkhas for trial.
It was urged by the learned counsel for the applicant that the decree passed by the learned District Judge, which was not yet upset by the learned District Judge, still held the field and, there fore, the applicant could not be prosecuted. I entirely agree with this contention. It is true that the appeal against the decree is pending but so long the decree has not been set aside‑ the initiation of the proceedings by the learned S. D. M: were 'riot justified. The learned S. D. M. could not sit in appeal over the judgment passed by the learned District Judge or pass any order in dis regard of it. I ascertained from the office whether the decree of the learned District Judge was suspended by this Court and I find that there was no such order.
In the circumstances I allow the application and quash the proceedings.
Proceedings quashed.
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