P L D 1994 Karachi 118 (PLP)

Syed Aijaz Ali for Applicant. Wakeel Ahmed Qureshi for the State. Date of hearing: 5th September, 1993. Applicant Nadeem Ahmad, under section 561-A, Cr. P.C., has applied for quashment of proceeding initiated against him, under section 14 of the Sindh Crimes Control Act, 1975, hereinafter called the Act, pending before the Tribunal comprising of S.D.M. Airport, Karachi. The facts relevant for decision of this application are as follows: On 13-11-1990 S.H.O. Faisal Colony submitted the report before said Tribunal that the applicant is a habitual offender, desperate, and dangerous and is involved in various cases. Taking cognizance of the report, the Tribunal issued N.B.W. against the applicant. It is said that on 15-5-1992 S.H.O. of said Police Station submitted second report, saying that applicant is involved in five criminal cases. Learned counsel for the applicant, on this point, however, stated that presently only two cases are pending against the applicant. One relates to F.I.R. No. 315/87 (Case No. 658/81) under sections 147, 148, 149, 307/323, P.P.C. and is on the file of Assistant Sessions Judge, Karachi East, while the other concerning F.I.R. No. 120/90 (Case No. 715/90) 'under section 17(3) E.H.O., 1979, is pending for decision before 2nd Assistant Sessions Judge, Karachi East. To appreciate the contentions raised on behalf of the applicant it would be advantageous to reproduce the sections 5 and 8 of the Act, which are as follows: Section

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 for his arrest. Section

8. Proceedings --(1) When the persons complained against appears or is brought before the Tribunal in compliance with, or in execution of a summons or warrant, issued under section 5, the Tribunal shall proceed to inquire into the truth of the report upon which action has been taken, and to take evidence as may appear necessary. (2) Such inquiry shall be made, as nearly as may be practicable, in the manner for conducting trials and recording evidence in summons cases under the Code of Criminal Procedure, 1898. (3) Pending the completion of the inquiry under the section if the Tribunal considers that immediate measures are necessary for the prevention of the commission of the act complained against, it may, for reasons to be recorded in writing:- (a) direct the person complained against. to execute a bond, with or without sureties for maintaining good behavior until the conclusion of the inquiry, and may detain him in custody until such bond is executed or in default of execution until the inquiry is concluded; or (b) instead of taking bond for appearance of such person, order his detention for such period as may be specified or till the conclusion of the inquiry; provided that such detention shall not exceed two months unless his case has been referred to the Commissioner and the latter has, for reasons to be recorded in writing, agreed to such detention for a further period not exceeding four months." It is contended on behalf of the applicant that the proceedings initiated against him are contrary to the various provisions of the Act, including sections 5 and 8 of the Act, inasmuch as neither there was any justification, for taking cognizance of the case nor the facts disclosed in the report justified to proceed under section 14 and nor straightaway N.B.W. could be issued against him. A perusal of section 5 of the Act shows that on receipt of the report the Tribunal shall, at the first instance, issue a summon requiring the persons complained against to appear before it. The proviso of said section empowers the Tribunal to issue, at any time, a warrant against the persons complained, if there is reason to apprehend the commission of the act complained against and such commission of the act cannot be prevented otherwise than by the immediate arrest of such person. It is well-recognized principle of interpretation of statutes that each word used in a statute is to be assigned its ordinary meaning and an exception does not affect the general rule. It is true that the proviso is an exception, but its scope cannot be enlarged to the extent that it may completely undo the general provision or may have the effect of rendering any provision of statute as redundant. Therefore, on getting report the Tribunal, in the first instance, as a rule, shall issue a summon to the' concerned person. However, if toe case is covered by the proviso, for which there should be exceptionally strong evidence to justify such action, the Tribunal may issue warrant. A simple application by a Police Officer B containing vague allegations or incomplete information, by itself, is not enough for invoking the Proviso of section 5 of the Act. Freedom of subject is not to be curtailed on a flimsy ground. Since the order under section 5 is passed in absence of the person complained against a duty is cast upon the Tribunal to ensure that unnecessarily the liberty of an individual is not taken away and order of arrest is not to be passed mechanically. The proceedings, under the Act, are preventive in nature and the Tribunal has all powers under Cr.P.C., for issuing summons and warrants. In Cr.P.C. the terms "bailable warrants" and "non-bailable warrant" are not employed, and, instead, the offences have been defined `as bailable offences' and 'non-bailable offences'. It being so, these proceedings basically, being preventive in nature straightaway non-bailable p warrant cannot be issued. First Bailable Warrant is to be issued. If in spite of service of Bailable Warrant, the person does not appear, then the Tribunal may issue N.B.W. According to section 8 of the Act, the Tribunal may, while ascertaining the truth of the allegations contained in the report, for reasons to be recorded in writing, direct the person concerned, to execute a bond. The Tribunal, under clause (b), subsection (3) of section 8 is also competent to order the detention of such person for a period not exceeding two months, and after the case being referred to Commissioner and the latter having agreed for such detention, it could be for a period not exceeding four months. It is not the discretion of the Tribunal to either proceed under clauses (a) or (b) of subsection (3) of section

8. Clause (b) cannot be invoked, unless an order in writing is passed that by applying clause (a) the purpose of preventing the commission and repetition of crimes could not be achieved. The clauses (a) and (b) are to be (E followed in order of precedence. Learned State counsel frankly conceded that various provisions of the Act were not complied with and since 13-1-1990, not a single witness has been F examined by the Tribunal. He, therefore, has no objection if the proceedings are quashed. On 5-9-1993 after hearing the arguments this application was allowed and the proceedings were quashed and these are the reasons for the same. N.H.Q./N-504/K Proceedings quashed,