1984 P Cr (PLP)

Date of hearing: 1st March, 1984. This petition has been filed challenging the proceeding and order passed by the respondent No. 2 under Sind Crimes Control Act, 1975. The Napier Police submitted a challan against Bashir Ahmed, on whose behalf the petition has been filed, under section 14 of Sind Crimes Control Act, 1975. Bashir is under detention under M. L. O. 12 for 90 days. The respondent No. 2 acting as Tribunal under Sind Crimes Control Act, 1975 took cognizance of the case and by order, dated 31st December, 1983 issued non-bailable warrant against Bashir Ahmed detenu. The matter was fixed on 14th January, 1983 before respondent No. 2, but as the Jail Authorities did not produce him, the hearing was adjourned to 5th February, 1984. An application under' section 15 of the Act was filed for discharge of the detenu but the respondent No. 2 ordered that as the detenu did not appear from Jail on 5th February, 1984 and the matter was fixed on 19th February, 1934, the application should be filed till the detenu is produced. Mr. Umar Qureshi, the learned counsel for the petitioner has conten ded that there was no material before the Tribunal justifying the issuance of non-bailable warrants of even to take cognizance of the matter. In this regard reference is made to the complaint submitted before the respon dent No. 2 which contains list of 20 cases in which the detenu is stated to have been arrested and convicted. It has been alleged that the detenu is a narcotic dealer and is dangerous for general public. The cases at serial Nos. 1 to 9 relate to various offences including under section 43 (3), Sind Abkari Acts, 117/107, P. P. C., 324, 334, P. P. C., 325, 232, P. P. C. and 13-D (A), Arms Act. Earlier the respondent had instituted proceeding under section 14 of Sind Crimes Control Act, 1975 against the detenu being Case No. 10/79 in which some of the cases cited in the present case were also relied upon. In that case after recording evidence the detenu was discharged with the following observation:- "Considering the above evidence of the prosecution and the defence and the past record of the defendant for years after 1974, statement of the respondent in which he has submitted that he has been married and left all the activities and is earning his livelihood from a hotel, has been corroborated by the prosecution as well as defence witness. He is also an old man of 64 years. I do not find it proper to punish the respondent for his past, but his present activities are to be seen. In view of the above reasons, the respon dent is discharged in this case." This order was announced on 13th December, 1980. The Tribunal itself did not find it proper to punish him in respect of his conduct and acts upto the year 1979. In the list of cases submitted from Serial Nos. 1 to 9 the prosecution has referred to F. I. Rs. from 1960 to 1975. In view of order dated 13th December, 1980 these F. I. Rs. cannot be taken into consideration for the purposes of the present proceedings. Now coming to the cases mentioned at Serial Nos. 10 to 20 it is pertinent to note that Case No. 10 relate to F. I. R. No. 105/83 under sec tion 5 (9), Gambling Ordinance, but nothing has been stated what has happened in this case. Case at Serial No. I I is under section 3/4 of the Prohibition Enforcement of Hudood Ordinance, 1979. In this regard also nothing has been stated whether the proceedings are still pending, or he has been convicted or discharged. In cases at Serial Nos. 12 to 20 no detail has been furnished, and therefore, they cannot be taken into consi deration. On the basis of two cases at Serial Nos. 10 and 1 I there is hardly any material to exercise jurisdiction under sections 5 and 6 of the Sind Crimes Control Act much less to issue non-bailable warrant. The law in this regard is well-known and reference can be made to Muhammad Siddique v. S. D. M. Tribunal (P L D 1981 Kar. 685). In another case Muhammad Siddique v. State (P L D 1979 Kar. 229), it was held that: "the mere fact that a person has been challaned is not sufficient to bring the case within the purview of section

14. Again in Aftab Alam v. Province of Sind (P L D 1979 Kar. 465), it was observed that mere pendency of various criminal cases will not reasonably lead a person to believe that the accused is a habitual offender or abettor of such crime. In Abdul Hamid v. S. D. M. and Tribunal Hyderabad and another initiation of proceeding on the basis of the report which mentioned two cases was held to be without jurisdiction. Applying these principles to the present case it seems that cases upto 1980 could not be taken into consideration as on that account the detenu had been discharged on 13th December, 1980. In nine cases no particulars and details have been furnished. On the basis of two cases hardly respon dent's action can be justified. Mere pendency of cases or conviction in two cases will not lead reasonably to believe that the detenu is a habitual offender. Mr. Muhammad Ibrahim Memon the learned Additional Advocate -General appearing for the State has frankly conceded that there is hardly any material on the basis of which proceedings could be initiated against the detenu. In the circumstances the proceedings and the orders passed by the respondent No. 2 are declared to be without lawful authority and of no legal effect. Petition is allowed. M. Z. M. Petition allowed.