P L D 1965 (W (PLP)

This is a revision application under section 19 of the West Pakistan Control of Goondas Ordinance, 1959 as amended by the Control of Goondas Amendment Ordinance, 1962, the applicant being aggrieved with the order of the Commissioner of Hyderabad Division dated the 24th of March 1964.

2. The relevant facts are that on a complaint filed by the S.H.O. Town Mirpurkhas under sections 13 and 14 of the Ordinance, the District Magistrate, and Tribunal, Mirpurkhas, issued warrants for the arrest of the applicant under section 6 of the Ordinance. The petitioner was arrested and thereafter an order was passed on the 13th of February 1964, Tribunal ordering the release of the petitioner on condition (1) that the petitioner furnishes a bond in the sum of Rs. 50,000 with two sureties of the like amount, undertaking to ensure the appearance of the petitioner in the course of the inquiry or whenever called upon to do so and (2) furnish a bond in the sum of Rs. 1,00,000 with two sureties in the like amount to ensure the good behaviour of the applicant until the conclusion of the inquiry against him. The Tribunal further directed that the applicant be detained in custody until the bonds in terms of the conditions given earlier were executed or until the termination of the inquiry. The warrants were to be executed to the satisfaction of the Tribunal.

3. An appeal was preferred to the Commissioner who passed the following order on the 2nd of March 1964:-- "After hearing arguments, I am satisfied that the amounts of the sureties are unduly excessive. I, therefore, reduce the amounts and direct that the appellant should furnish two sureties in the sum of Rs. 10,000 each for appearance and two sureties in the sum of Rs. 20,000 each for good behaviour."

4. The applicant sought to comply with the terms of this order, and offered the necessary sureties. Under section 16 of the Ordinance, the Tribunal directed that the sureties be scrutinized by the Assistant Commissioner and S. D. M., Mirpurkhas. It is the admitted position that these sureties were scrutinized and found satisfactory. Thereafter an order dated the 1st March 1964, was passed by the Tribunal by which he was s4tisfied with the sureties for the appearance of the applicant, but was not satisfied with them in regard to their control over the activities of the applicant. It was stated in the order that the petitioner was "accused of happenings at Tharparkar and I am unable to accept the contentions that a person living at Hyderabad can control his activities at Mirpurkhas. Hence I am unable to accept the sureties as per above. The party may produce the sureties from Mirpurkhas for this purpose and get them verified from A. C. Mirpurkhas".

5. An appeal was made to the Commissioner, Hyderabad, when the impugned order dated the 24th of March 1964, that:‑-- "Perusal of the order of the Tribunal shows that the accused has furnished sureties who live at Hyderabad. He is therefore unable to accept the sureties and feels that they will not be able to control the activities of the accused at Mirpurkhas. The Tribunal has therefore desired that the sureties should belong to Mirpurkhas so that they may be able to control the activities of the accused. I do not find any illegality in the order of the Tribunal nor is there anything to indicate that the Tribunal has imposed a fresh condition. The only point is that the sureties who permanently reside in Hyderabad will naturally not be able to control the activities of the accused. I therefore reject the appeal."

6. The point that arises for consideration is whether in terms of section 19 of the Ordinance, the order of the Tribunal comes within the purview of the three conditions of that section and, therefore, needs to be rectified.

7. The contention of the learned counsel for the State is that the Ordinance is a special enactment and the Tribunal has unfettered discretion in such matters. I am unable to accept this contention. Discretion under the Ordinance has to be exercised with normal reason and care, and not be unnecessarily harsh or incapable to execution. That an unduly harsh order was at the initial stage passed is indicated in the order dated 2nd of March 1964, by which the Commissioner of the Hyderabad Division, decreased the amounts of sureties demanded from the sum of Rs. 1,00,000 each for good behaviour of the petitioner, as being unduly excessive, to that of sureties of Rs. 20,000 each. The report of the Tribunal dated the 19th April 1964, submitted to this Court, states that although the sureties had been satisfactorily scrutinized by the Assistant Commissioner and S. D. M., Mirpurkhas, they were not accepted as they were considered to be "unfit persons". The report has further contended that no, fresh conditions were contemplated, nor indeed imposed by the order of the 1st of March 1964.

8. It is obvious not only that fresh conditions were imposed, but that the additional conditions imposed by the order dated the 1st of March 1964, amounted to a revision of the original order of the 13th of February 1964. If the contention is as stated in the order dated the 1st March 1964, that the sureties should be not only solvent, but that they should be residents of Mirpurkhas District, in being able to control the activities of the petitioner at Mirpurkhas, these details should have been mentioned in the original order dated the 13th of February 1964. I am also unable to accept the contention that only a person living in a particular district or area can normally control the activities of a person living in that district. Control of the activities of a person, vis‑a‑vis the accusations against him, is a relative term, and the purpose of the Ordinance is not only to control crime but also to control the activities of persons suspected of indulging in this crime in a summary and direct manner. If the contention of the learned A counsel for the State that the Tribunal has unfettered discretion in the Ordinance of this kind, keeping out of the purview of normal Courts, some of its acts are nevertheless subject to revision of this High Court as under section 19 of the Ordinance. The discretion exercised, therefore, must be such as is vested in a Tribunal by law, and it must be shown that it has either failed to exercise the jurisdiction so vested in it, or has acted in the exercise of its jurisdiction illegally.

9. Dealing with the objection that if the petitioner misconducted himself in the course of the inquiry, and the bonds offered by the sureties were to be forfeited, action against them would be difficult, as their properties are situated outside the Mirpurkhas District, then in fairness to the petitioner, the Tribunal in its original order of the 13th of February 1964, and in its second condition, should have definitely stated and demanded that these two sureties should not only be solvent to the extent of the bonds demanded, but also that they should be residents of, and owning property in the district of Mirpurkhas. Clearly, the later condition that the sureties should be residents of the Mirpurkhas district imposed by the Tribunal on the 1st of March 1964, was a fresh condition, and amounted to a revision of the order of the 13th of February 1964, which undoubtedly, and as admitted by the learned counsel for the State, the Tribunal under the provisions of the Ordinance, was not competent to do.

10. For these reasons, it is obvious that the Tribunal ha fallen into an error in having exercised a jurisdiction no vested in it by law, and has acted illegally by its order dated the 1st of March 1964.

11. The result is that the sureties offered by the applicant will have to be scrutinised and accepted in strict terms and conditions written, and not presumed, of those imposed in the order dated the 13th of February 1964. S.Q.???????????????????????????????????????????????????????????????????????????????????????????????????? Petition accepted.