1980CLC 39 (PLP)

MUHAMMAD SARDAR KHAN, J.-This petition which calls in question the order of the Station Commander, Nowshera dated 24th December 1977, arises in the following circumstances :- A notice No. 67-25-G dated 7th November 1977 under section 235 of the Cantonments Act, 1924 (hereinafter called the Act) was served by the Station Commander, Nowshera on the petitioner. This notice on the subject :- "Removal of Brothel/Prostitution from Nowshera Cantt." reads :--. "Whereas the undersigned has received reliable information that you are using your house situated in Shahzada Building opposite Ice Factory, Nowshera as brothel for purposes of prostitution which is an offence under section 235 of the Cantts. Act, 1924 and can cause your expulsion from the Cantonment Area under section 237 of the Cantonments Act, 1924. However, before further action is initiated in this behalf you are summoned to the office of the Station Head quarters, Nowshera to appear before the undersigned on 15th November 1977 at 10-00 hours in person or through an authorised agent to explain your position in writing as well as personally". (Underlining is mine). It appears that prior to the issuance of the said notice written complaints bad been received by the respondent from certain persons claiming them selves to be the residents of the Mohallah that the petitioner who was an employee of WAPDA and his two sons, were bad characters; the latter, at his instance, procured customers for their mother. and sisters and were using the house as a brothel. Many bad characters and influential people visited his home and he had become a nuisance for them. The petitioner appeared before the Station Commander on 19-11-1977 and gave a statement which was recorded in the hearing and presence of the [Here in italics] Station Commander, denying the allegation against him but admitting that those who had complained had no enmity whatever with him. He said that he wanted to produce three witnesses (named by him) in his defence. Record does not show if they were examined. However, the Station Commander by his letter dated 5th December 1977 called Messrs Taj Wali Shah, Dr. Amir Dad Khan and Azizur Rehman to attend the Headquarters at 101)0 hours on 7-12-1977 "to see the Station Commander in connection with the case of Mr. Asbiq Hussain". And they did appear. Two of them (not the first mentioned gentleman) seem to have appeared on 7-12-1977 and each gave a `detailed statement' which was allegedly recorded but the file requisitioned from the respondent does not contain the said statements. Besides, the statements, if any, do not seem to have been recorded in presence of the petitioner. There are, however, two undated writings, not in their own hand but signed by them, on his record; one by Dr. Amir Dad Khan and the other by Azizur Rehman, saying that they had appeared before the Station Commander on 7-12-1977 and had each given a `detailed statement' before him which is available on his record. The former wrote that he was running dental business in Nowshera Saddar and several people visited him. He had learnt from them stories of "Awargi" and "bud chalni" of petitioner's wife and daughters and he had also heard that petitioner had opened a brothel in his house which was visited ,by all sorts of bad characters and others for prostitution and this caused considerable worry to the residents of the Mohallah. Azizur Rehman stated that he had his house adjacent to petitioner's house. He had been sending applications to the officers concerned from time to time about the sins of petitioner's wife and daughter's lewdness which he had been witnessing. All sorts of bad characters and influential people visited his house for prostitution and this was affecting the entire Mohallah and might give rise to breach of peace. Consequently on 24-12-1977 a "Notice of ejectment under section 237 of the Cantonments Act, 1924" was served on the petitioner as follows :- (1) Whereas 1, PA-5303 Colonel Muhammad Afzal Janjua, Station Commander. Nowshera on the basis of the complaints of residents of the locality, after due inquiry by hearing, examining you, your witnesses as well as by examining Azizur Rehman, Dr. Amir Dad Khan etc., am satisfied that you alongwith your family members, i.e. your sons, lhsan, lkcam, daughters Mst. Surriya, Rukhsana, Anwar Sultana, Shida, Shahina and your wife are indulging and abetting in prostitution within the limits of Nowshera Cantt. (2) You are hereby served with this notice under section 237 of the Cantonments Act, 1924 requiring you and your above family members to remove yourself and the family from Nowshera Cantt. within 7 (seven) days of the service of this notice. (3) You are also hereby directed not to re-enter the Cantonment Area, Nowshera, without the written permission of the Station Commander, Nowshera." Copies of this notice were endorsed for information to the Assistant Commis sioner, Nowshera, Deputy Supdt. Police Nowshera, Executive Officer Cantonment Board, Nowshera and S. H.O. Police Station, Nowshera Cantt. Learned counsel for the petitioner contends that no notice regarding the proposed action was given to the petitioner and that no evidence against him was recorded in his presence, thus denying him the opportunity to cross-examine those witnesses, if any. Thus, he says, the impugned action was not taken in accordance with section 237 of the Cantonments Act, 1924 tinder which it purports to be, hence it is without any lawful authority and of no legal effect. The contention that, no notice preceding the impugned action was given to the petitioner is without any substance whatever. In the earlier part of this judgment we have referred to the notice dated 7-11-1977 under section 235 of the Act and this notice was duly received by the petitioner as admitted by him in his statement dated 19-11-1977. It is, however, correct that evidence, if any, in support of the complaint, made by the residents of the Mohallah, does not seem to have been recorded in presence of the petitioner so as to enable him to cross-examine those witnesses. Besides, file of the Station Headquarter which is before us does not contain the statements of the witnesses recorded for' or against the petitioner except of course the statement of the petitioner (dated 19-11-1977) himself, already alluded to above. Section 2.37 of the Cantonments Act reads :- "If the (Officer Commanding the Station) is, after such inquiry as he thinks necessary, satisfied that any person residing in or frequenting the Cantonment is a prostitute or has been convicted of an offence under section 236, or of the abetment of such an offence, he may cause to be served on such person an order in writing requiring such person to remove from Cantonment within such time as may be specified in the order, and prohibit such person from re-entering it without the permission in writing of the (Officer Commanding-the Station)." Now the Officer Commanding the Station can cause an order to be served if he is satisfied, after such inquiry as he thinks necessary, that any person residing in the Cantonment is (1) a prostitute or (2) has been convicted of an offence under section 236 or (3) of the abetment of such an offence. Thus in such cases the question of nature of inquiry is left to him. That would mean in such inquiries the person has no right to insist on produc tion of such evidence which he desires to adduce. No machinery seems to have been prescribed for summoning witnesses or compelling production of documents in such inquiries. The use of the word "satisfy" does not also necessarily import that in holding such inquiry he will be bound by any particular procedure. Therefore, no illegality appears to have been committed by the Officer Commanding the Station in not examining the witnesses which the petitioner allegedly wanted to produce. But although the Officer Commanding the Station is not bound to follow any particular B procedure yet it cannot be disputed that where he examines some witnesses in the course of such an inquiry which might ultimately result in passing an order requiring a person to remove him from the Cantonment within a specified time and not to re-enter it without his permission in writing, such person has a right to insist that he should be in attendance at the time of, examining such witnesses and be allowed to cross-examine them, should he so desire. This would seem to be the minimum requirement of fairness. However, no witness against the petitioner was examined in his presence. In fact, as stated above, although the note dated 24-12-1917 says that "after due inquiry by hearing, examining you, your witnesses as well as by examining Azizur Rehman, Dr. Amir Dad etc." there does not exist any statement on record to show that except for the petitioner any witness of his was examined or for that matter Azizur Rehman and Dr. Amir Dad were also examined. May be that the complainant and witnesses against the petitioner were examined verbally by the Officer Commanding but whether this would fulfil the requirement of section 237 is highly doubtful. Whatever they may have deposed if they were examined verbally may be in the mind of the Officer Commanding the Station. There is nothing before us to see if they said anything which would entitle the respondent to act under section 237 of the Act or not. The two applications though undated and referred to above, from Azizur Rehman and Dr. Amir Dad, which are available on pages 9 and 10 of the file sent by the Station Commander Nowshera Cantt. do unequivocally state that they had on 7-12-1977, appeared before the Station Commander and had given a "detailed statement" which was available on his record but no such `detailed state ment' is forth coming `On this file. And if they had really given such a state ment on 7-12-1977 then what was the necessity to take from them his written statements thereafter. It is, however, clear that if on 7-12-1977 they were examined then this was not done in presence of the petitioner. May be that the Station Commander did not consider it necessary that he should do so. Apart from this there is another difficulty in the way of maintaining this order. It is clear that action under section 237 can only be taken if the Station Commander is satisfied that a person is a prostitute or (2) has been convicted of an offence under section 236 or (3) of the abetment of such an offence. The word `prostitute' has not been defined in the Cantonments Act, 1924. Therefore, obviously this word has been used in the said section in its ordinary dictionary meaning according to which a prostitute is a person who indulges in lewdness, especially for hire. According to Funk and Wagnalls' New Standard Dictionary of the English Language, prostitute means a woman who practices indiscriminate lewdness for hire; a person who performs or offers to perform an evil service for gain. Now the allegation against the petitioner admittedly is that he is a gunda and bad character who has opened a brothel in his house where people come for prostitution. Section 237 of the Act, however, requires that before taking any action thereunder a person must be shown to be a `prostitute' or that he had been convicted of an offence under section 236 or was guilty of the abetment of such an offence, Now the allegation against the petitioners is not that he is a prostitute but that he is using his house as a brothel. Nor it has been alleged in the impugned order that he had been convicted for loitering in Nowshera Cantt. for purposes of prostitution or importuning any person to the commission of sexual immorality or of the abetment of the said offence. In the circumstances section 237 of the Act would have no application as against the petitioner, therefore, the impugned action against him would be without lawful authority. It seems that the offence, if any, would rather fail under section 235 of the Act. This section reads :- "The (Officer Commanding the Station) -nay, on receiving information that any building in the Cantonment is used as a brothel or for purposes of prostitution, by order in writing setting forth the substance of the information received, summon the owner, lessee, tenant or occupier of the building to appear before him either in person or by an authorised agent, and, if the (Officer Commanding the Station) is then satisfied as to the truth of the information, he. may, by order in writing, direct the owner, lessee, tenant or occupier, as the case may be, to discontinue such use of the building within such period as may be specified in the order." Under this section, however, the Officer Commanding the Station on being satisfied that any building in Cantonment is used as a brothel or for purposes of prostitution can, in case other requirements of the said section are also fulfilled, by order in writing, direct the owner, lessee, tenant or occupier as the case may be, to discontinue such use of the building within such period as may be specified in the order. Where a person who is so directed fails to comply with the order within the period specified therein he becomes liable to be punished under section 240 of the Act. Thus under section 235 he cannot be expelled from the Cantt. Area. In the circumstances the impugned action under section 237 upon admitted facts of the case cannot be sustained and the same is set aside. It may, however, be added that the petitioner had himself alleged in his petition that a case was already pending against him in the Court of Mr. Abdur Rehman Khan, M. I. C., Nowshera on the basis of a complaint which was sent to the Assistant Commissioner, Nowshera and in there the list of witnesses was the same as in the complaint to the authorities on the basis of which the impugned action was taken by the respondent against him. He had complained that not a single witness had been examined in the Magistrate's Court and it would have been in the fitness of things that respondent should have waited till the decision of the said Court. Since this plea had been specifically taken in the petition it necessitated a direction to the learned counsel for the State to make file of the case under section 4/5 of the West Pakistan Suppression of Prostitution Ordinance, 1961 available. This order was passed on the 16th of October 1978. When the file was received here it appeared that the petitioner had already been convicted under section 3 of the said Ordinance and sentenced to one month simple imprisonment and a fine of Rs. 200 or in default 2 months' further simple imprisonment. Section 3 of the West Pakistan Suppression of Prostitution Ordinance, 1961 prescribes punishment for keeping a brothel or allowing any place to be used as a brothel. We would have refrained to interfere in the impugned order as the petitioner has since been found by a competent Court of law to be guilty under section 3 of the Ordinance but we were informed by the learned counsel for the petitioner and this has not been disputed that the said order was under appeal in the Court of Session. We have, therefore, preferred to leave this matter open so that in case his conviction and sentence are maintained that would provide further evidence to the Officer Commanding the Station to take such action against the petitioner, in accordance with law, as may be called for. S. A. H. Petition accepted.