1984 P Cr (PLP)

Gulzaman Khan for Appellant. A.A. Muhammadally A.A.-G for the State Date of hearing: 30th November, 1983. Applicant Rajab Ali has filed this application for quashment of proceedings started against him by S.D.M. Bin Qasim by his order dated 12th November, 1981 on the report of S.H.O. Landi Colony Police Station under section 14 of Sind Crimes Control Act, 1975 (hereinafter referred to as the said Act) .

2. In his report the S.H.O. stated that the applicant is habitual narcotic dealer and has frequently disturbed the public peace. In support of the above allegations the S.H.O. gave a list of cases in which the applicant was involved. The list shows that in all 6 cases have been registered against the applicant under section 13-D, Arms Ordinance, under section 3/4 of Prohibition Ordinance, 307/34, P.P.C. 506/354, P.P.C. and the last case under section 148/149/452/427/504, P.P.C.. Out of the abovementioned cases in the list the applicant is shown as having been acquitted in the second case which was under section 3/4 of the Prohibition Ordinance. The remaining cases are said to be pending in various Courts.

3. The above report was made by the S.H.O. before the S.D.M. on 12th November, 1981. The same day the learned S.D.M. passed an order for issuance of non-bailable warrant against the applicant without complying with the provisions of sections 5 and 6 read with section 14 of the said Act. In pursuance of the above order dated 12th November, 1981 of the learned S.D.M. the applicant was arrested and produced before the S.D.M. on 16th November, 1981 on which date copies of F.I.Rs. and challans were supplied to the applicant.

4. From perusal of the copies of the order-sheet dated 12th November, 1981 and 16th November, 1981 from the record of S.D.M. Bin Qasim it appears that non-bailable warrant was issued by the learned S.D.M. straightaway on the report of the S.H.O. without complying with the provisions of section 5 of the said Act which says that summons shall be issued in .the first instance by the Magistrate. Non-bailable warrant could have been issued only if the case of the applicant was covered by proviso to section 5 of the said Act which reads as under:- "Provided that whenever it appears to such Tribunal, upon the report of a Police Officer on upon other information (the substance of which report or information shall be recorded by the Tribunal), that there is reason to apprehend the commission of the act complained against and that such commission of the act cannot be prevented otherwise than by the immediate arrest of such person, the Tribunal may, at any time issue a warrant for his arrest."

5. From the order-sheet it is quite clear that no reasons were given by the S.D.M. as to why non-bailable warrant instead of summons was being issued. Moreover the provisions of section 6 make it obligatory upon the Magistrate to enclose copies of F.I.R. and challan along wit summons or the warrant. The order-sheet dated 16th November, 1981 shows that these copies were not enclosed with the warrant but were supplied to the applicant on 16th November, 1981 when he was produced before the learned Magistrate in pursuance of the non-bailable warrant. The proceedings, therefore, from the very beginning were illegal an without lawful authority.

6. Again the allegations which have been made against the applicant are vague and no particular instances have been cited. So far as the criminal cases pending against the applicant are concerned, no inference about the character of the applicant can, be drawn from these cases until the same are decided and end in conviction of the applicant.

7. A number of cases have been cited by the learned counsel for the applicant in support of his plea that under the above circumstances proceedings under the said Act had been held to be without jurisdiction. These cases are: (1) Aftab Alam alias Matoo v. Tribunai and A.C. a S.D.M. (Central) Karachi P L D 1978 Kar. 305, (2) Shero alias Sher Muhammad v. The State P L D 1978 Kar. 368, (3) Hussain tux v. District Magistrate Larkana P L D 1978 Kar. 630 (4) Awal Shah v. The State P L D 1978 Kar. 662, and (5) Fazal Illahi v. Assistant Commissioner d S.D.M. Karachi P L D 1978 Kar.

730. In view of the above decisions Mr. A.A. Muhammadally the learned A.A.-General frankly conceded that the proceedings started by the learned S.D.M. against the applicant are void ab initio and are liable to be' quashed. I agree with the learned A.A.-General and hold that the proceedings started by the learned S.D.M. are void ab initio on account of non-compliance with the mandatory provisions of sections 5 and 6 of the said Act. The same are, therefore, quashed. S.G.D. Proceedings quashed.