1998 P Cr (PLP)

This petition is filed under section 561‑A, Cr.P.C. by Ghulam Hyder Solangi with the prayers that the proceedings bearing Crime No.7 of 1996 filed by the S.H.O. Police Station Mehar and pending before the Tribunal/S.D.M. be quashed

2. Briefly, the facts, leading to this quashment application are that on 1‑8‑1996, S.H.O. Mehar filed a complaint under section 14/4 of the Sindh Crimes Control Act, 1975 alleging therein that the applicant is a known "Badmash" and entertains criminals from far of places who used to visit him. It is further alleged that the applicant also takes "Bhung" (local word used for ransom). The other allegations are the‑ applicant freely moves in the public places armed with deadly weapons and that the general public apprehends danger of their lives and properties at the hands of the applicant but nobody is willing to come forward to lodge a complaint against this applicant. Following cases were cited in the police report, wherein it is alleged that the applicant is involved in 11 these cases: (1) Crime No.61 of 1994 under sections 341/34 and 393/398, P.P.C. Police Station Mehar. (2) Crime No.64 of 1984 under section 13‑D.A.O. Police Station Mehar. (3) Crime No.201 of 1987 under section 109/55, Cr.P.C. Police Station Mehar. (4) Crime No. 155 of 1991 under sections 385/34, 392/342 and 17/3, Hudood Ordinance, Police Station Mehar. (5) Crime No.21 of 1992 under section, 4/14, Cr.P.C., Police Station Mehar. (6) Crime No.3 of 1993 under section 110/55, Cr.P.C., Police Station Mehar. (7) Crime No.3 of 1995 under section 110/55, Cr.P.C., Police Station Mehar.

8. It is pertinent to note that the complaint under section 14/4 of. the Sindh Crimes Control Act of 1975 which was filed by S.H.O. Mehar is dated 1‑8‑1996 but the date mentioned on the order passed under section 5 of the Act, 1975 by the learned Tribunal/S‑.D.M. Mehar is 31‑7‑1996 through which non‑bailable warrant was issued. The applicant was produced by the S.H.O. before the learned Tribunal/S.D.M. Mehar on 1‑8‑1996 who directed the applicant to execute a bond with two sureties in the sum of Rs.25,000 each, for the purpose of .maintaining good .behaviour till completion of the inquiry. Learned Additional Advocate‑General is not in a position to explain' this ambiguity and the conflict in dates in filing complaint by the S.H.O. and the order passed by the Tribunal/S.D.M., Mehar. Taking advantage ‑of this situation, it was contended by Mr. Mughal that such confusion or doubt should be resolved in favour of the applicant.

4. I have heard Mr. Abdul Fatah Mughal, Advocate for applicant and Mr. Muhammad Bachal Tonyo, Additional Advocate‑General, Sindh and have also perused the case file. It is contended by Mr. Mughal that the complaint filed by the S.H.O. is based on the wild allegations and is vague. It lacks necessary particulars and is not in accordance with provisions of Sindh Crimes Control Act, 1975. He has also, argued that it is the mandatory duty of the Tribunal/S.D.M. to apply its judicial and conscious mind to the material placed before it, and if it fulfils the requirements of Act, 1975 only then it is competent to issue non‑bailable warrants. He has referred to the ease of Ali Bux v. The State and another 1994 PCr.LJ 4 and the case of Nisar v. The State 1996 PCr.LJ

102. Learned Additional Advocate‑General Mr. Muhammad Bachal Tonyo has not supported the impugned order passed by the learned Tribunal/S.D.M. He has also referred to the case of Haji Ali Muhammad Solangi. v. The Tribunal/S.D.M. Nazim Abad, Karachi PLD 1980 Kar. 267.

5. In the case of Ali Bux 1994. PCr.LJ 4 a learned Single Judge of this Court Mukhtar Ahmed Junejo, J. (as his Lordship then was) after referring to the several reported cases held inter alia, that since the acts allegedly committed by the applicant branding him as dangerous have not been specified and that no private person was cited as witness against the applicant, therefore, the Tribunal acted illegally by remanding the applicant to jail custody without referring to the material available before it. In these circumstances the proceedings under section 14 of the Act, 1975 was quashed. In the case of Nisar 1996 PCr.LJ102 it was held by me after referring to the several reported cases, including the decision of a learned Division Bench of this Court in the case of Haji Ali Muhammad Solangi (supra), that under proviso to section 5 of the Act, 1975 a Tribunal can issue warrant of arrest subject to the condition that there does exist reason to apprehend commission of any criminal act complained and that such commission of act cannot be prevented otherwise then by the arrest of such person. It was further held that the consequences of non‑mentioning the details and other 'particulars in the complaint of a police official is fatal and that the allegations, if found 'vague and lacking in particulars then the proceedings are liable to be quashed. I would like to repeat what I had earlier said in the case of Nisar v. The State as the same is very relevant in the present case also:‑‑ "A Tribunal is not legally bound to issue process upon mere filing of a police report/complaint but he should verify the same and to see that it is in complete accordance with section 6 of the Act, 1975 before‑issuing any process under section 5 of the Act. The Tribunal should also apply its judicial mind before issuing a warrant of arrest. A person should not be deprived of his liberty on incompetent, baseless and frivolous applications of the. Sub‑Inspector. I am fortified in my view by the case- law reported as Rajib Ali, v. State 1984 PCr.LJ 2865."

6. In the present case the allegations made against the applicant are void, and vague in nature, no specific instance or other particulars of public harassment "Badmashee" or "Bhung" have been cited. Ail the witnesses shown in the report are police officials. It is not shown that in any of the case as mentioned above, the applicant was ever convicted. It is pertinent to note that the cases cited at Serial Nos.3, 5, 6 and 7 pertains to the proceedings of preventive nature and any person facing such proceedings cannot be termed an accused, neither such proceedings culminate in the conviction of such person (for reference see Muhammad Rashad Hayat Khan V. Malik Khair Din and another PLD 1972 SC

74. Therefore, the proceedings initiated under Chapter VIII, Cr.P.C. cannot be made basis for initiating a fresh proceedings under the provisions of Sindh Crimes Control Act, 1975. It is settled law that when a person is suspected of mere offence or offences or is challaned in some criminal I cases it would not be sufficient to sustain a proceeding under section 14 of the Act, 1975. Mere allegation that a person is "Badmash" or he frequently receive "Bhung" without specifying particulars and instances would not be sufficient to initiate proceedings as of the present case. (For further reference see Abbas v. S.D.M. Tando Allahyar 1985 PCr.LJ 2837, Asadullah v. S.D.M. Tribunal/ Ratodero 1988 PCr.LJ 49, Nazimuddin v. The State PLD 1976 Kar. 650 and the cases of Inayat v. The State 1989 PCr.LJ 1115. I have also noticed that the learned Tribunal/ S.D.M. Mehar on the same day has passed an order calling for surety and without giving proper opportunity to the applicant to arrange for the surety, remanded him to jail without applying the provisions of the Act, 1975. In my view this clearly amounts to the violation of principles of natural justice (for reference see Khuda Bux v. The State 1976 PCr.LJ 412 and the case of Ali Sher v. S.D. M. Meerpur Mathelo and another 1987 PCr.LJ 750).

7. In view of the above discussion of law and facts, I accept this application and quash the proceedings pending against the applicant under section 14 of Sindh Crimes Control Act, 1975 pending before the Tribunal/ S.D. M. Mehar. His surety bond is cancelled and the surety stand discharged. N.H.Q./G‑37/K Proceedings quashed.