P L D 1988 Karachi 599 (PLP)

This is an application under sections 435, 439 and 561‑A, Cr.P.C, for quashment of proceedings instituted before S.D.M. and Tribunal, Kamber, District Larkana under section 14 of the Sind Crimes Control Act, 1975. The facts leading to the above application, briefly stated, are that S. H .0. Kamber Police Station made a report on 4‑7‑1987 to the learned S.D.M. under section 14 of Sind Crimes Control Act, 1975 against the applicant stating therein that the applicant was a dangerous and desperate person and so his remaining at large will be a menace for public. On the same day the learned S.D.'M. ordered to issue a non‑bailable warrant against the applicant and put off the matter to 15‑7‑1987. Accordingly the N.B.W, was issued on 4‑7‑1987 and the accused was arrested and produced in custody in the Court on 5‑7‑1987 and was remanded to custody for want of surety. On 6‑7‑1987 the S.H.O. produced an application for action under section 8(3)(b) of the Sind Crimes Control Act. The applicant was called from jail custody. Depositions of S.H.O. Ghulam Kadir and A.S.I. Muhammad Ashraf were recorded. An order under section 8(3)(b) was accordingly passed whereby the applicant was ordered to be detained till the conclusion of the inquiry or two months, which period expires earlier. Being aggrieved of the said order the applicant filed the above application in this Court on 26‑7‑1987. Alongwith the said application a Miscellaneous Application (M . A .1025 of 1987) was also filed. The matter came up for hearing on 30th July, 1987 and the applicant was directed to be released on bail in the sum of Rs.20,000 with one surety and P.R. bond in the like amount to the satisfaction of the Additional Registrar of this Court. Now the main application has come up for regular hearing. Mr. Sharifuddin Ada, learned counsel for the applicant submits that the report on the basis of which the learned S.D.M. and Tribunal appears to have initiated the proceedings under section 14 of the Sind Crimes Control Act is vague. In support of the various allegations the S.H.O. concerned mentioned the following two proceedings:‑ (1) Proceedings.No.3/86 under section 14 of the Sind Crimes Control Act. (2) Proceedings No.42/86 under section 110, Cr.P.C. It was submitted by the learned counsel that the proceedings No.3/86 under section 14 were already pending and hence no fresh proceedings under the same section could be taken. The said proceedings were, however, withdrawn by the prosecution subsequently. As regards proceedings No.42/86 under section 110, Cr.P.C. a certified copy of the order was produced by him which shows that "the order under section 112, Cr.P.C. was passed on 18‑9‑1986 and after that repeated process was issued but the prosecution failed to produce any witness..." Accordingly the applicant was discharged under section 119, Cr.P.C. Learned counsel submits that the proceedings are, therefore, bad in law and liable to be quashed. Reliance is placed by him on my judgment reported as Mahmood Ahmed (Muhammad Ahmed) v. Tribunal/S.D.M. Hyderabad City P L D 1985 Kar. 187 and Noor Ahmed alias Shishoo v. Station House Officer and another P L D 1986 Kar. 648 by my learned brother, Syed Abdur Rehman, J.Reliance is also placed on three other judgments Sachu alias Sach‑e‑Dino v. The State 1984 P Cr.LJ 647 by my learned brother Haider Ali Pirzada, J., Haji Amir Ali Magsi v. The State 1984 P Cr. L J 1259 by Fakhruddin H. Shaikh, J. (as he then was) and Ghafoor v. Sub‑Divisional Magistrate Naushero Feroze 1984 P Cr. L J 1262 by Ally Madad ‑Shah, J. (as he then was). The submissions of the counsel are fully supported by the above‑cited judgments. It appears that there has been no application of mind by the learned S.D.M. while passing an order for the issue of non‑bay warrant in the very first instance which is manifest from the order itself. Let me reproduce it:‑ 4‑7‑1987. S.H.O. Kamber has submitted report under section 14, S.C.C. Act against respondent Laloo alias Lal Bux Chandio and requested for issue of N . B . W .against him. Put off to 15‑7‑1987. Order passed. Issue N.B.W. against respondent. Sd/ Tribunal and S.D.M. Kamber." Thus, there is a clear violation of section 5 of the Act which reads as under:‑ "

5. Summoning of persons.‑‑ 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: Provided that whenever it appears to such Tribunal upon the report of a Police Officer or upon other information (the substance of which report or information shall be recorded by the Tribunal), that 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 of his arrest." The report only mentions two proceedings but the fate of the said proceedings has been discussed above. One is withdrawn' subsequently and the other meets with failure. In any case, for making a report under section 14 it is obligatory under the law to give description of the dates and places and the nature of offences committed by the person against whom proceedings are desired to be initiated under section

14. No incident of the alleged commission of offences has been mentioned in the report. It is general and vague. Furthermore, the report does not name any witness from the public. There appears, therefore, a clear violation of the provisions of section 6 of the Act, which is reproduced below:‑ "

6. Deliverer of copy. of report.‑‑ Every summons or warrant. Issued under section 5 shad 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: Provided that the report shall briefly state: (i) the acts with which the persons complained against is charged; (ii) the details of time and place of such acts; (iii) general repute of person complained or such other allegation made against him." Moreover, proceedings No.3/86 under section 14 of the Act being pending, no fresh proceedings on the same set of facts could be initiated and no case could be instituted on that basis. It contravences the provision of Article 13(a) of the Constitution of Pakistan, 1973 C which, inter alia, provides that no person shall be prosecuted for the same offence more than once. The learned A.‑A.G. has not at all been able to show that the earlier proceedings No. 3/86 were on different accusations. In fact, he did not dispute it. For the reasons aforesaid, I am of the view that the proceedings in Case No.197 of 1987 under section 14 of the Sind Crimes Control Act, 1975 against the applicant pending in the Court of Tribunal and S.D.M. Kamber are bad in law and, therefore, quashed. The bail bonds furnished by the surety and the applicant in this Court stand discharged. M.Y.H./L‑21/K Proceedings quashed.