1980 P Cr (PLP)

Date of hearing: 21st March, ]

979. SAJJAD ALI SHAH, J.‑ Mst. Noor Jehan has filed this Constitutional petition under Article 199 of the Constitution of the Islamic Republic of Pakistan read with section 561, Cr. P. C. and section 22(2) of Sind Crimes Control Act, 1978, in respect of detention of her husband Farid Khan son of Maid Khan, who would hereinafter be referred as detenu, in connection with proceedings under section 14 of Sind Crimes Control Act, hereinafter to be referred as the said act. After hearing the learned Advocates appearing for the both parties, we had quashed the proceedings in question by allowing the constitutional petition on 21‑3‑1979 .for reasons to be recorded later, which follow now. The petitioner calls in question the validity of the proceedings being taken against the detenu under the said Act on the ground that they are without lawful authority and of no legal effect. It is stated that respondent No. 2, who is S. H. O., Orangi Town Police Station, Karachi filed a report dated 25‑9‑]978 under section 14 of the said Act on which respondent No. 1 S. D. M., Nazimabad acting as Tribunal under the said Act, vide his order dated 30‑9‑78 issued non‑bailable warrants against the detenu for his arrest. The allegations in the report, which is Annexure on the record, are to the effect that the detenu has no ostensible means of livelihood, cheats public by misrepresenting to them that he would sell them Government land, is in unauthorised occupation of the Government land, and misuses the water supplied in tanks by K. D. A. for the consump tion of the residents of neighbourhood. Additionally that the neighbourers are fed up with him and he should be bound down for a period of three years for good behaviour. Accompanied with this report are a list of witnesses and a list of cases shown against the detenu. In consequence of non‑bailable warrants, the detenu was arrested on 30‑9‑78 and was produced. before A. C. M. City, Karachi, for remand and on the following day was produced before respondent No. 1, who passed an order directing detenu to execute a bond for good behaviour in the sum of Rs. 20,000 (Rupees twenty thousand) with two sureties each in the like amount who are in position to control him effectively. This order purports to have been passed under section 8 of the said Act. Without taking further proceedings the detenu was remanded to judicial custody up to 5‑10‑78 and thereafter the case was adjourned on three occasions without any further progress in the proceedings. It is contended that when the ‑detenu was arrested in consequence of execution of non‑bailable warrants, copy of the report containing allegations was not delivered. Alongwith the petition annexures have been produced which indicate that an application dated 2‑10‑1978 was made by the Advocate for the detenu before the said Tribunal for certified copy, of police report, list of cases and other orders incidental to the proceedings, Such application for supply of copies of the report and other documents was repeated on 5‑10‑78 before the same tribunal. The perusal of the record of the tribunal shows that it is mentioned in the order dated 30‑9‑78 passed by the tribunal for issuance of non‑bailable warrants that a copy of the police report be sent alongwith non‑bailable warrants to be delivered to the opponent but the part of order relating to the supply of copy of report of S. H. O. was not complied with and no such copy was delivered. Such non -compliance is evident from the execution report dated I‑10‑78 submitted by S. H. O. to the tribunal which is on the record. It is stated therein that non‑bailable warrants have been executed in the result whereof the detenu has been taken in custody. There is no mention in this compliance report of the fact that copy of the report was also delivered to the detenu at the time of execution of warrants. This assertion is further confirmed by the fact that Advocate for the detenu had made two applications to the said Tribunal for the supply of copies of documents including the report of S: H. O. Section 6 of the said Act provides that every summon or warrant issued under section 5 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 same. The use of word "shall" indicates that it is mandatory to supply such report at the time when the warrant is executed and such report must be delivered to the person arrested. Non‑compliance of this mandatory provision of the Act has caused prejudice to the detenu. Secondly it appears that initially when the order was passed by the tribunal on 30‑9‑78 at the time of taking cognizance of the case, non‑bailable warrants were issued straightaway in contravention of section 5 of the said Act. This section provides that on receipt of the report, the Tribunal shall issue a summons requiring the person complained against to appear, or, when such person is in custody, a warrant directing the Officer in whose custody he is, to produce him before it. Of course there is a proviso to this section which provides further that the Tribunal is empowered to issue warrant when 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. Reading of section 5 as a whole including the proviso indicates that warrants are to be issued in exceptional cases, when there is reason to apprehend that there is no other course except that in order to prevent the commission of offence. It therefore, follows that there should be application of mind and reasons should be given for arriving at such conclusion. Order of the Tribunal dated 30‑9‑78 simply states in a perfunctory manner that the learned Assistant Commissioner has perused the report of S. H. O. and is fully convinced that immediate measures are necessary for the arrest of the detenu so as to prevent him, from the acts and offences which he is otherwise likely to commit as alleged in the report. This is not proper application of mind. There should be separate reasons justifying such apprehension and specifying as to what offences are likely to be committed which are sought to be prevented. It is pertinent to state here that section 5 of the said Act also provides for issuance of summons initially and there should be distinction between cases in which summons should be issued and also cases in, which .warrants are to be issued. It is therefore, obvious that warrants are to be issued in exceptional cases when there is justification to do so for which there should be proper application of mind and separate reasons to be given. Otherwise the purpose of providing for issuance of summons under section 5 of the said Act would be defeated. Coming back to the report of the S. H. O. it is to be stated that the perusal of the said report shows that allegations made therein are vague in nature and have no nexus with any of the clauses mentioned under section 4 of the said Act. In fact the allegations should be specific and it should be mentioned as to under what particular clause of section 14 it is covered. There is only one allegation in the report which has some nexus with sec tion 14 (xxxii) which relates to unauthorised occupation of Government land. For this also no specific instances are quoted and it is not stated as to what Government land is in unauthorised occupation of the detenu. So far the list of the cases is concerned it mentions 14 cases from which 5 cases are still pending, in one case detenu was discharged. In another case he was released on 10‑9‑1959. In one case the detenu was fined Rs. 500, in the year 1963, in an offence under section 324/34, P. P. C. and in another case in which the offence is not mentioned but it is stated that he was fined Rs. 500, on 3‑5‑

67. Still in another case under section 8 of the Gambling Ordinance the detenu was fined in the year 1966, and the amount of fine is not mentioned. Lastly Orangi Town Police Station proceeded against the detenu under section 13 of W. P. (Control) of Goondas Ordinance, 1959, on the basis of same allegations before two different Tribunals and subsequently the proceedings before the tribunal under the Sind Crimes Control Act were stopped and the detenu was discharged by order dated 13‑1‑1977 on the ground that on the same allegations the detenu was being proceeded against under the Goonda Act. Subsequently vide order dated 28‑6‑1978 the detenu was acquitted by the Tribunal set up under section 13 of W. P. (Control) of Goonda Ordinance, 1969. Lastly the said Police Station has also filed a case against the detenu for proceedings under section 151 Cr. P. C. which is also pending. It is therefore, clear that no action is called for under the said act on the basis of pending cases, excluding which only there remain three cases in which the detenu was find but these cases relate to 1963, 1966 and 1967. On the other hand the petitioner has produced so many applications filed by her addressed to Martial Law Administrator, D. L‑G. Police and other authorities in which enmity has been alleged between her husband and other persons, of the locality and she has stated that her husband is running a hotel and a provision store and also is President of Welfare Society of his area and he is being victimised by the Police. It appears that the allegations in the report are vague and the list of cases contains mostly pending cases which are not to be considered. There hardly any connection between these cases and the allegations in the report of S. H. O. The mere fact that a person is suspected in some offences even when he is challaned in respect of certain offences, on that ground alone his case would not come under purview of section 14 of the said act. The learned Tribunal has no applied mind and given separate reasons for issuing non‑bailable warrants in the first instance and the .copy of the report of S. H. O. was not supplied and delivered to the detenu at the time‑‑ of arrest resulting is non‑compliance of the provisions of ‑sections 5 and 6 of said Act. ‑ In view of what instated above; we feel that the proceedings before the said Tribunal are not being conducted in accordance with the provisions of the said Act and reliance is placed on the judgment of this Court in case of Muhammad Siddique v. The State (P L D 1979 Kar. 229), in which whole Case‑law relating to the procedure of the proceedings under the Sind Crimes Control Act, 1975, has been discussed in detail. The proceedings in question not being in accordance with law are hereby quashed: Petition dismissed.