1984 PLP 1445 (MLD)

A. Sattar G. Sheikh, A.A.-G. for Respondent. Dates of hearing: 17th and 18th January, 1984. By this constitution petition the petitioner, Dad Rahim, has challenged the proceedings initiated against him under section 14 (i), (ii), (iii) and (iv) of the Sind Crimes Control Act, 1975.

2. The facts which give rise to the petition are that, the petitioner is a landlord and he and other members of his family own jointly immovable properties of the value of Rs. 30,00,

000. On 6-2-1974 a police officer, named, Abdul Rasheed, the then S.H.O. of Idgah Police Station, Karachi, out of sheer enmity, submitted a challan in the Court of District Magistrate and Tribunal (South), Karachi under section 13 of the West Pakistan Control of Goondas Ordinance 1968 read with the Ordinance XI of 1969 averring therein that he was a bully, a drunkard and a keeper of a gambling den in the name and style of People's Club. It was further alleged in the challan that he was nuisance in the area and a dangerous person to the general public due to his nefarious activities. Charge sheet is Annexure "A" to the petition. The petitioner took the plea that he was highly respected person coming from a very good family. It was contended by him in his defence that he was brother of Peer Bux Baloch, Superintendent of Police, one of the well known Officers of the Province of Sind and further that his implication in the said case was falsely motivated and was ipso facto the manifestation of direct enmity with the then S.H.O. while submitting charge sheet in the above case. List of the witnesses categorised into two sets, one set consisted of those who were connected with the complaints on the basis of which proceedings as alleged initiated against the petitioner, and other set consisted of the witnesses of the locality the object being to examine them on the point of general reputation. The prosecution witnesses failed to prove the allegations made against the petitioner. In view of the allegation laid against the petitioner in the above case, the learned District Magistrate Tribunal (South), Karachi, care to the positive conclusion to the effect that prosecution had failed miserably to establish the case against him and, he, as such honourably acquitted by its judgment dated 31-8-1976. The judgment is Annexure "B" to the petition. On or about 4-4-1978 another S.H.O. Idgah Police Station, Karachi, submitted a charge sheet in the Court of Deputy Commissioner (South) Karachi, under section 14(i), (ii), (iv) and (vi) of Sind Crimes Control Act, 1975, alleging therein that the petitioner was a disorderly person and further that he was a bully, a drunkard and a gambling/narcotic den keeper but on the same fact relying practically on the same evidence which had already disbelieved by a well reasoned judgment dated 31-8-1976. The Deputy Commissioner (South), Karachi, passed the following order on 4-4-1978. "Report under section 14 Sind Crime Control received today Statement of I.O. recorded. Register the case. Issue N.B.W. against respondent for 20-4-1978".

3. Mr. Sami Ahmad, learned counsel for the petitioner has contended that the challan under section 14(i),. (ii), (iv) and (vi) of the Sind Crimes Control Act, 1975, is barred by the provisions of section 4030) Cr.P.C. In support of his arguments he has placed reliance on the following decisions: -- A I R 1921 Lah. 283; 52 Cr. L J 480; 1969 P Cr. L J 271 and P L D 1965 Lah. 461.

4. On the other hand, Mr. Sattar A. Sheikh, learned Additional Advocate-General, Sind, has contended that the provisions of section 403(i) are not applicable to the facts of this case as the petitioner was not challaned for an offence. He has further contended that the order dated 4-4-1978 has been passed without lawful authority and unlawful effect.

5. I have perused the allegations against the petitioner as contained in the complaint under section 14 of the said Act, filed by S.H.O. Idgah Station, Karachi. Neither details of facts nor the time and place of such facts with which the petitioner is charged are given in it. All that the report states is that the petitioner has been charged in certain cases under section 307, P.P.C. under section 4/5 Gambling Ordinance, under section 4(3) and 2 AbKari Act and under section 34 of the Police Act. The question which requires consideration is that whether the cases in which the petitioner is stated to have been involved have any nexus with the allegations against him for bringing him within the scope of the said Act anal the cases registered against him are in respect of offences allegedly committed by him. None of these reports were produced before me. In any case they called for sentence under the respective provisions of P.P.C. and other Acts, if the allegations contained therein are proved against the petitioner. In the absence o any details as to the nature, time and place of the acts alleged against the petitioner it is difficult for me to hold that the case of the petitioner falls within the clauses of section 14 of the said Act.

6. Thus, there appears to be a clear violation of sections 5 and 6 of the said Act. On the receipt of the report the Tribunal has to issue a summon requiring the person complained against to appear or when such a person is in custody a warrant directing the officer in whose custody he is to produce him before it, provided of course that when it appears to such Tribunal upon the report of police officer and upon other information the substance of which report or information shall be recorded by Tribunal that there is reason to apprehend the commission of the acts complained against and that such commission of the acts cannot be prevented otherwise than by the immediate arrest of such person. The Tribunal may at any time issue warrant for his arrest. Every summon or warrant thus issued to the person shall be accompanied by a copy of the report and such copy shall be delivered by the officer serving or executing such summons or warrant to the person served with or arrested under the said Act provided that the report shall briefly state, (i) the acts with which the person complained against is charged, (ii) details of time and place of such acts, and (iii) general reputation of person complained against or other such allegations made against him.

7. In this case, however, I find that the Tribunal did not apply its mind to the facts of the case of petitioner. No reasons whatsoever were assigned for issuing non-bailable warrants against him. The Tribunal did not even mention in its order as to which clause of Section 14 of the said Act was attracted to the case of the petitioner. Thus, the Tribunal did not act legally taking cognizance of the reports in the absence of any specific material.

8. Mr. Sattar A. Sheikh, learned Additional Advocate-General, has supported the petition.

9. There appears to me to be violation of the provisions of section 5 of the said Act. Section 5 of the said Act requires that before issuing a warrant against the person reported the Tribunal shall record the substance of the report or information upon which the warrant is being issued. Such substance must relate to the offence or act which, it is proposed to prevent through the issuance of the warrant. In the instant case, the learned Tribunal has failed to record the subtance o the report or information by the police in its order directing the issuance of the warrant and has merely stated therein that there was reason to, apprehend the commission of the act complained against, without mentioning that act or the allegations on the basis of the act of which the warrant was being issued. The order thus cannot be considered t be in compliance with the provisions of sections 5 and 6 of the said Act.

10. Mr. Syed Sami Ahmad has referred to provisions of section 403, Cr.P.C. and above decisions. It had been accepted in these cases that if there has been an acquittal after hearing of evidence, there should not be a second prosecution. I am in respectful agreement with the learned Judge on the question of second prosecution will be without jurisdiction.

11. In the present case, it appears that the proceeding initiated on the same evidence or substantially the same evidence as was considered and rejected as such it amounts to improper exercise of jurisdiction.

12. Since there has been in the instant case, a violation of the provisions of sections 4 and 6 of the said Act and an assumption o jurisdiction upon a clear misreading or non-compliance of the provisions, of law and the initiation of proceeding on the same evidence. I hold that the proceedings taken against the petitioner are without jurisdiction and unlawful authority, I accordingly quash those proceedings and would direct to recall the non-bailable warrant issued against the petitioner. S. G. D. Proceedings quashed.