' Sakhawat Ali petitioner through this writ petition has prayed for quashment of order dated 19-7- 2004 passed by the learned Sessions Judge, Multan whereby present petitioner was burdened with costs of Rs.10,000 payable to Abdur Rehman on 25-8-2004.
2. Briefly stated the facts of this case are that one Gul Sher son of Abdur Rehman filed habeas corpus petition under section 491, Cr.P.C. Before the learned Sessions Judge, Multan for the recovery of Abdur Rehman son of Sardar Muhammad from the alleged illegal confinement of S.H.O. Police station Mumtazabad District, Multan wherein bailiff was deputed who submitted his report according to which when bailiff reached the police station he was informed that Abdur Rehman had been arrested by the police initially in case F.I.R. No.321 of 2004 under section 13 of the West Pakistan Arms Ordinance XX of 1965 registered at Police Station Mumtazabad and he had been taken away by the Investigating Officer of case F.I.R. No.485 of 2002 under section 381-A, P.P.C.
Registered at the same. Police Station, petitioner Sakhawat Ali, S.-I. Recorded case Diary No.7 showing the arrest of Abdur Rehman on the strength of supplementary statements of Muhammad Arshad and Khalil Ahmad P.Ws. Actually this case diary was written on 17-4-2004 and similarly subsequent statement of Muhammad Arshad and Khalil Ahmad were shown to have been recorded on 17-7-2004. Later on petitioner wrote figure 16 by the side of figure 17 in case Diary No.7 and also tampered with date mentioned underneath the statement of P.Ws. Petitioner Sakhawat Ali S.-I. Was burdened with costs of Rs.10,000 for illegal confinement of Abdur Rehman. Hence this petition.
3. Learned counsel for the petitioner submits that the impugned order passed by the learned Sessions Judge, Multan is illegal, against the law and facts and is not sustainable in the eye of law.
That not even a single iota or fraction of mala fide or dishonesty on the part of petitioner could be brought on file by the complainant side. That petitioner has neither committed any offence nor any irregularity. That the learned lower Court has not appreciated the fact that not only the respondent No.2 Gul Sher is hardened criminal but even his father is also an offender in dacoity cases. Further submitted that petitioner was not provided with opportunity of hearing.
4. On the other hand learned counsel appearing on behalf of the State vehemently opposed this writ petition.
5. I have heard learned counsel for the parties and carefully perused the record. A bare perusal of record shows that Muhammad Arshad and Khalil Ahmad P.Ws. Only expressed suspicion against Abdur Rehman besides narration that he was seen roaming about in the Mohallah and when bailiff raided the police station the alleged detenu was not found there rather his arrest was incorporated in the daily diary vide Rappat No.36 dated 17-7-2004 at 7-15 a.m. In Case No.321 of 2004 registered under section 13/20/65. Arms Ordinance at Police Station Mumtazabad District Multan Sakhawat Ali S.-I. Petitioner arrested Abdur Rehman in an untraced case without any positive and definite clue which would have authorized him to arrest Abdur Rehman. In fact petitioner wanted to keep the custody of Abdur Rehman to involve him falsely in criminal case. While perusing the impugned order dated 19-7-2004 passed by the learned Sessions Judge, Multan it has been found that stance of petitioner-Sakhawat Ali S.-I. Has not been incorporated and it means that he has not been given chance of defence and as such he was condemned unheard. It is settled principle of law that no one should be condemned unheard and where the principle is violated the order passed without affording opportunity of hearing and show cause such order is liable to be set aside reliance is placed on "Muhammad Khan v. Shamsuddin and others" (1969 SCMR 212). The principle of natural justice is so fundamental that the Superior Courts have held that this right should have been given to a citizen even if it is not enunciated in an enactment. Reliance is very respectfully placed on "Mrs. Anisa Rehman v. P.I.A.C. And others" (1994 SCMR 2232) and "Munawar Sultana v. Director of Education" (2001 PLC (C.S.) 270).
6. For what has been discussed above this writ petition is accepted, the order is set aside and the lis is remanded to the learned Sessions Judge, Multan who shall decide the same after giving proper opportunity of hearing to both the parties. Resultantly the application No.424/HB dated 17- 7-2004 shall be deemed to be pending and the petitioner shall appear before the learned Sessions Judge, Multan on or before 31-5-2005, who is directed to decide the matter relating to the petitioner and the learned Ilaqa Magistrate afresh in accordance with law.