PLD 1989 Karachi 90 (PLP)

Zawar Hussain Jafferi A.A.-G. for Respondent. Date of hearing: 27th October, 1988. This is an application under section 561-A, Cr.P.C. for quashment of proceedings pending before SDM and Tribunal, Sukkur under police report No.5/88.

2. The facts as alleged in the application are that the applicant runs a hotel near Khairpur/Sukkur Wagon Stand since last 10 years and resides at Barrage Road, Sukkur situate within the local limits of 'A' Section Police Station, Sukkur since his forefathers' time. The applicant is an active member of a political party, Jamiat Ulma-i-Islam since last 7-8 years. In the month of July, 1988 the applicant made report to the local leaders of his party against SHO 'A' Section Police Station, Sukkur that he has made miserable the lives of the people residing in that locality. On this report the leaders of his party contacted higher police officials and apprised them about the alleged misconduct and misuse of powers by the said SHO. A statement issued by the leaders was published in the daily 'Jang' dated 4-7-1988, a copy whereof has been placed on the record. As a result of the publication of that statement in the paper, the following day viz. 5-7-1988 the applicant was taken to 'A' Section police station at 4-00 p.m. where the SHO of the said police station abused and maltreated the applicant and told that he will face dire consequences for ,the statement published in the newspaper and will put him in the police lock-up. On 6-7-1988 the applicant was produced before the Court of SDM and Tribunal, Sukkur where an order was passed by the learned SDM/Tribunal under section 14 of the Sind Crimes Control Act, 1975 requiring him to show cause as to why he should not be ordered to execute bond in the sum of Rs.25,000 each with two sureties for maintenance of good behaviour for a period of two years. The applicant, however, pleaded not guilty and made application for grant of bail to him. The learned Tribunal accepted the application and released him on bail. Thereafter the applicant has filed the above application in this Court.

3. Mr. Habibullah Shaikh, learned counsel for the applicant submits that the allegations contained in the report of the SHO 'A' Section Police Station that the applicant has started narcotic businesses and sells heroin, charas and wine, are vague and of a general nature without any specific instance or details of any act complained of. On the basis of such report order passed by the learned Tribunal is a clear violation of mandatory provisions of sections 5, 6, 8 and 14 of the said Act. There is no specific instance or details of any crime alleged against the applicant. There is neither a single criminal case pending against the applicant nor he is a previous convict. No person from public has been cited as a witness. The applicant is not alleged to have ever been challaned before any Court.

4. The main object of the Sind Crimes Control Act, 1975 is to provide effective machinery of law to prevent the repetition of crimes by anti-social elements and disorderly persons in the province of Sind. The Tribunal constituted under section 3 of the said Act is empowered to take cognizance, under section 4 of the Act, of a case if the person complained against resides and is alleged to have committed offence within its jurisdiction. The Tribunal on receipt of such report in normal course is to issue summons requiring the said person to appear before him, unless the Tribunal has reason to apprehend the commission of the offence and that its commission cannot be prevented otherwise than by immediate arrest of such person. The Tribunal may, then, issue a warrant for his arrest under section 5 of the Act. Section 6 of the Act provides that every summons or non-bailable warrant issued under section 5 shall be accompanied by a copy of the report which shall be delivered by the officer serving or executing such summons or warrant to the person served with, or arrested under the same. The report is required to state (i) the acts with which the person complained against is charged; (ii) the details of time and place of such acts; (iii) general report of person complained or such other allegation made against him.

5. After reading the report and the order dated 6-7-1988 passed by the learned SDM and Tribunal, Sukkur, I find force in the submissions of the learned counsel. There is no independent application of mind by the learned SDM/Tribunal while passing order under section

5. There is neither any detail as to date, time and place of the offences allegedly committed by the applicant nor any copy of the report appears to have been -supplied to the applicant. The provisions of section 14 do not appear to attract the facts of the present case as the applicant has not been shown to be 'an offender' in any case; what to say 'habitual offender' as provided in the said section. Even the learned A.A.-G. frankly concedes this position and states no objection to the grant of the above application.

6. For the aforesaid reasons, the proceedings initiated on Police Report No.C-5 dated 2-7-1988 pending before the SDM/Tribunal are quashed.

7. Before parting with the case, it would not perhaps, be improper to add that it has been noticed in many cases decided, by this Court that the learned Sub-Divisional Magistrates/Tribunals appointed under the said Crimes Control Act have failed to take notice of the mandatory requirements of the provisions of sections 5 and 6 of the Act. There has been no application of mind by them while issuing non-bailable warrants which are ordered to be issued somewhat in a mechanical manner, without stating any reason for not issuing the summons in the first instance, as required by section

5. It has also been noticed invariably that the police officials do not mention in their reports any details as to the alleged commission of offences, which is also a mandatory requirement of section 6 of the Act; they .also fail to cite any witnesses from general public. In some of the cases it has also been observed that the law is misused as a handle for oppression and a tool for injustice. In one case decided by this Court at Hyderabad Circuit Bench it was noticed that almost all members of the family including minor(s) were booked by the police for the alleged offence under section 14 of the Sind Crimes Control Act, 1975 (e.g. refer Allahdino v . S. D. M. /Tribunal Naushero Feroze (1986 P Cr. L J 2973) . It has also been some time observed that action is initiated with ulterior motives (e.g. refer Mahmood Ahmed (Muhammad Ahmed v. Tribunal/S.D.M. City, Hyderabad (P L D 1985 Kar. 187). The innocent members of the public are victimised by launching unjustified proceedings under the said Act, and are dragged in unnecessary litigation and are put behind bars at least till such time that the bails are granted to them under section 8(3) of the Act and surety is accepted. It has also been complained to this Court during hearing of the cases that even if the surety is produced no order is passed for weeks together regarding the acceptance or rejection of surety. The counsel for the accused in many cases have approached this Court and shown their readiness to face the music in the trial Court, if they are bailed out by the High Court and surety is allowed to be furnished in the High Court. All these matters are to be looked into in accordance with law by the authorities concerned who are responsible for proper administration of the affairs of the Province of Sind. If proper care is taken at the time of initiating proceedings by all concerned, it will reduce unnecessary criminal litigation and will go a long way in helping administration of criminal justice by the Courts at all levels.

8. Additional Registrar of this Bench is directed to send a copy of this judgment to the Chief Secretary, Government of Sind, Karachi in order to enable him to issue a circular incorporating the observations made in para 7 herein, above to all the Sub-Divisional Magistrates/Tribunals constituted under section 3 of the Sind Crimes Control Act, 197.5, with a direction to pay due regard to the provisions of Sections 5, 6, 8 and 14 of Sind Crime Control Act. A copy of such Circular issued by the Chief Secretary may also be sent to the Additional Registrar- of this Court for information and record. M.A.K/S-277/K Proceedings quashed.