1989 PLP 686 (MLD)

‑‑‑S.5‑‑Proceedings, which were adopted without complying with prescribed procedure and without application of mind. by Tribunal to allegations made in report against accused, were not sustainable. Karam Chand Kingrani for Petitioner. Sh. Azizur Rehman for the State. Date of hearing: 18th January, 1989. This application under section 561‑A, Cr.P.C. has been presented on behalf of Noor Bibi wife of Sahib Dad for quashment of proceedings taken against her under section 5 of the Sind Crimes Control Act, 1975 (heleinafter called the `Act') by the A.C.M./S.D.M. and Tribunal City, Karachi. The S.H.O. Baghdadi Police Station, lodged a complaint with the above Tribunal under section 14(1) of the Act, against the applicant stating, inter alia, that she sells heroin and narcotics drugs in her house and also assists her sons and husband in this trade. She had no means of income except selling heroin etc. She is, therefore, dangerous to the society. The list of four cases mentioned in the report were allegedly pending against her. The learned A.C.M./S.D.M. City and Tribunal vide order dated 13‑7‑1988 under section 5 of the Act issued order of her arrest. She was however, stated to be already confined in Central Jail, Karachi. Hence a letter was addressed to the Jail Authorities asking them to produce her before the Tribunal on 23‑7‑1988. and also to inform her that she had to furnish two solvent sureties in the sum of Rs.10,000 each and P.R. Bond in the like amount. I have heard Mr. Karam Chand Kingrani, learned counsel for the applicant, who has assailed the proceedings, inter alia, on the ground that the learned Tribunal passed the above order under section 5 of the Act, without making any inquiry, that out of the four cases mentioned in the application, three cases had ended in her acquittal and hence only one case, registered vide F.I.R. No.230/1988 under section 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979, was pending that the mandatory provisions of section 6 of the Act were not complied with and that‑ no private witness has been cited in the case which is still pending. Lastly, the counsel in support of his contentions cited the following authorities:‑ 1986 P Cr. L J 30, 1983 P Cr. L J 2377 and 2459, 1987 P Cr. L J 1345 and 1351. Mr. Abdul Aziz Shaikh, learned counsel for the State, on the other hand, supported the impugned action. The learned State counsel could not, however, repudiate the contention of the applicant's counsel that no inquiry was made by the Tribunal before passing the order under section 5 of the Act. He also did not dispute the correctness of the statement of the learned counsel for the applicant that in the first three cases mentioned in the complaint, the applicant had been acquitted and that it was only the last mentioned case, which is still pending before the Court concerned. Since it is an undisputed fact that the learned Tribunal did not apply his mind to the facts of the case by making any inquiry into the allegations made in the complaint, before passing an order under section 5 of the Act, the impugned A proceedings against the applicant cannot be sustained. The cases cited by the learned counsel for the applicant, I find, lend support to his contentions. It is by now a well‑established proposition by authorities that the proceedings which are adopted without complying with the prescribed procedure and without application of mind by the Tribunal to then allegations made in the report submitted by the S.H.O. cannot be sustained in law. In the result, the impugned proceedings are hereby quashed. M.Y.H./N‑156/K Proceedings quashed.