P L D 1 (PLP)

This is a Constitutional Petition under Article 199 of the Constitution of Islamic ,Republic of Pakistan, 1973, for quashment of proceedings pending before the Tribunal and S. D. M. City, Hyderabad in a criminal Case No. 345 of 1978 registered by him against the petitioner under section 4 read with section 14 of the Sind Crimes Control Act, 1975 (hereinafter referred to as the said Act) as being void and without jurisdiction.

2. The facts leading to this petition, briefly stated, are that the petitioner is employed as Helper/Meter Repairman in Messrs Indus Gas Company, Hyderabad since 1975. Sher Ali Khan Malik, the then S. H.O., Latifabad,, filed a complaint/report under section 4 read with section 14 of :he said Act before respondent No. 1, the Tribunal and S. D. M. City, Hyderabad,. against the petitioner for registering a case against him, stating the following instances of criminal activities of the petitioner:- (1) That on 2-9-1978 the opponent molested the sweepress of the locality and dragged her to his house for the purpose of satisfying his immoral lust to which she resisted when she was mercilessly beaten by the opponent and due to the intervention of the respect-, able persons of the locality the sweepress was rescued. (2) That on 15-9-1978 at about 1700 hrs. the opponent intentionally and deliberately dashed his motor cycle with one Niaz Ali who is an old man because earlier to this the said Niaz Ali had advised to mend his ways and to leave his nefarious activities to which the opponent was annoyed and was seeking an opportunity to put him under apprehension. (3) That on 2-11-1978 at about 1900 hrs. the opponent deliberately collided his motor cycle and overrun a minor girl Tarheen d/o Mahmood Ali as he was hostile to Mahmood Ali as he bad also advised him to behave properly. (4) That on 3-10-1978 at about 2000 hrs. the above-said opponent riotously behaved with milkman named Gammo for extorting money from him.

3. The said S. H. O. alongwith the said. complaint also filed an application dated 8-11-1978 under section 5 of the said Act for the issue of a Non-Bailable Warrant of arrest against the petitioner. Respondent No. 1 on.15-11-1978 registered the said case and issued the Non-Bailable Warrant against the petitioner. The petitioner was arrested and produced by the police before respondent No. 1 on 17-4-1979. The petitioner was then remanded to police custody. On 24-4-1979 the petitioner was directed to furnish two solvent sureties for good behaviour and was then again remanded to police custody till 7-5-1979. On 7-5-1979 the petitioner furnished two sureties and was released on bail. The case thereafter was fixed several times but was adjourned for one reason or the other. For about six dates of hearing the prosecution did not produce any witness. On 24-12-1979 the petitioner filed the above Constitutional Petition iu this Court which was admitted to regular hearing on 23-1-1980.

4. Mr. Rasbiduddin Ahmed, learned counsel for the petitioner has raised the following contentions: (i) The mandatory provisions of sections 5 and 6 of the Act have not been complied. (ii) The petitioner is not a habitual offender. Proceedings against him are bad in law. (iii) The proceedings have been initiated against the petitioner mala fide.

5. The Sind Crimes Control Act, 1975, is a special statute. Its object is to provide effective machinery of law to prevent the commission and repetition of crimes and to consolidate the law relating to anti-social elements and disorderly persons in the province of Sind. A 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 the act complained against is alleged to have been committed within its jurisdiction. The Tribunal on receipt of the report issues a summons requiring the person complained against to appear, unless it appears to the tribunal, upon the report of the Police Officer, that there is reason to apprehend the commission of the act complained against and that the commission of the act cannot be prevented otherwise than by the immediate arrest of such person. The tribunal may, then, issue a warrant for his arrest. Section 6 of the Act provides that every summons or warrant issued under section 5 shall be accompanied by a copy of the report and such report 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 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.

6. Section 5 of the said Act, as is evident from its mere reading, contemplates the issuance of summons in normal course against the person complained and it is only if the learned Tribunal comes to a conclusion that there is reason to apprehend commission of the act complained against and such commission of the act cannot be prevented otherwise than by the immediate arrest of the person complained, it issues a Non-Bailable Warrant against him. It is apparent from the record that the application under section 5 of the said Act is dated 8-11-1978 and the order has been passed on 15-11-1978. If there was a real apprehension of such commission of the act, complained of, the warrant of arrest should have been prayed for by respondent No. 2 (Inspector and S. H. O., Latifabad) on that very day. The very fact that the application was delayed for one full week and seems to have been presented before the learned Tribunal on 15-11-1978, is sufficient to show that there was no urgency and the circumstances did not warrant the issue of a Non-Bailable Warrant. It was also noticeable that the petitioner was an employee of a semi-Government organization. Moreover, no reasons have been assigned by the learned Tribunal while passing the order for the issue of a Non-Bailable Warrant of arrest against the petitioner, nor any copy of the Complaint/Report seems to have been delivered to the petitioner accompanied with the warrant executed, as averred in the petition and affidavit filed by the petitioner, which stand uncontroverted.

7. As regards the order passed under section 8-A of the Act directing the petitioner to execute a bond with two sureties for maintaining good behaviour until the conclusion of the enquiry, the same appears to be without any basis. In the complaint respondent No. 2 cited four instances of the acts complained against the petitioner. The allegations are vague and of general nature without giving any details as to times and places and particulars of the alleged acts against the petitioner that he is an active criminal and commits all sorts of crimes specially using abusive language in the public, drunkard, behaves riotously in public by entering affrays, causes fear and alarm in the locality by issuing threats which generally defy law and injure and endanger public peace and tranquillity, molests young girls of the vicinity, makes indecent sounds etc. There is no allegation anywhere in the complaint/report that any F.

1. R. was filed or any case was registered against the petitioner. The above-cited four instances of the objectionable acts of different nature relate to a period of about two months only whereas the provisions of the said Act are applicable to habitual offenders as seemingly appear from section 14 of the Act. In view of the circumstances explained above, there is great force in the contention of the learned counsel that the petitioner cannot at all be described as a habitual offender in terms of section 14 of the said Act.

8. In support of his first two contentions the learned counsel for the petitioner has relied or. a number of decisions namely: Khan Afsar .v. The State (P L D 1984 Kar. 84 ), Muhammad Ashraf alias Taoo v. The State and another (1983 P Cr. L J 1271), Haji Ali Muhammad Solangi v. Tribunal & S. D. M., Nazimabad and another (1980 P Cr. L J 872), Aftab Alam alias Matoo v. Tribunal & A. C. & S. D. M. (Central), Karachi and another ( P L D 1978 Kar. 305), Syed Abbas Ali Shah V. Sub-Divisional Magistrate & Tribunal, Tando Muhammad Khan and another (1979 P Cr. L J 303), Jafar Hussain v. Tribunal & S. D. M. City, Hyderabad and another (P L D 1980 Kar. 195) and Krishan v. Tribunal & S. D. M. City, Hyderabad and another ( 1980 P Cr_ L J 1198 ).

9. In the first case (P L D 1984 Kar. 84) Abdul Razzak A. Thahim, J. of this Court held that one isolated case of conviction against the petitioner cannot be the substitute of the statement of particulars to be given under section 5 of the Sind Crimes Control Act, 1975, for taking cognizance on such report.

10. In the second case (1983 P Cr. L J 1271) B. G. N. Kazi, J. of this Court (as he then was) held that the issuance of order under section 5 and Non-Bailable Warrant of arrest was not in accordance with law as there was no particular mention of any apprehended act and even in the report general allegations were made. It was also observed in that case that it was not apparent from the order passed by the learned Tribunal as to what was the reason for apprehending the commission of an offence and also as to what was the act complained against. In the facts and circumstances of that case, which were similar to the present case, it had been observed that normal process to be issued was summons and not Non-Bailable Warrant.

11. In the third case (1980 P Cr. L J 872) a Division Bench of this Court comprising of Fakhruddin G. Ebrahim and B. G. N. Kazi, JJ. (as they then were) observed that a mere list of cases in which the petitioner was challaned cannot be a substitute for statement of particulars to be given under section 5 of the Act.

12. In the fourth case (P L D 1978 Kar. 305) a Division Bench of this Court comprising of Fakhruddin G. Ebrah_im and Abdul Qadir Halepota, JJ. (as they then were) observed chat the trial Court while issuing Non-Bailable Warrant of arrest against the petitioner did not assign reasons for issuing Non-Bailable Warrant and the order in such regard also does not mention relevant clause of section 14 covering petitioner's act. It was, therefore, held that the trial Court did not comply with the provisions of sections 5 and 6 read with section 14 of the Sind Crimes Control Act, 1975, and as such the cognizance of the case was not legally taken and proceedings against the petitioner were quashed. .

13. In the fifth case (1979 P Cr. L J 303) a Division Bench of this Court comprising of Fakhruddin G. Ebrahim and Ajmal Mian, JJ. held that though the petitioner reportedly a notorious habitual offender involved in many criminal .cases .referring to as many as six cases in which the petitioner was challaned yet the police omitting to mention the particulars as to time and place of acts complained of as also their final result, the Tribunal, in the circumstances, could not rely upon such report nor could it be made basis for initiating proceedings against the petitioner and issuing Non-Bailable Warrant of arrest. The proceedings, therefore, were quashed.

14. In the sixth case (P L D 1980 Kar. 195) a Division Bench of this Court comprising of Z. A. Channa (as he then was) and Sajjad Ali Shah, JJ. held that mere fact of the petitioner being suspected in some offence or offences or even challaned in certain offences was not sufficient to bring case within the purview of section 14 of the Sind Crimes Control Act, 1975, and the proceedings, therefore, were quashed.

15. In the seventh case (1980 P Cr. L J 1198) a Division Bench of this Court comprising of Zaffar Hussain Mirza, J. (now, Judge, Supreme Court) and myself held that in the absence of detailed particulars of time and place in respect of vague allegations made against the petitioner the police complaint was unsustainable in law. The proceedings, in the circumstances, were quashed.

16. In view of the case-law cited by the learned counsel for the petitioner as well as other cases such as, Nizamuddin v. The state (1976 P Cr. L J 650) by Tufail Ali A. Rahman, C. J. (as he then was) Arsala Khan v. District Magistrate (South) and Tribunal, Karachi (1977 P Cr. L J 746) by Z. A. Channa, J. (as he then was) and Naimuddin, J., Shero alias Sher Muhammad v. The State (P L D 1978 Kar. 368 ), by Mushtaq Ali Kazi, J. (as he then was), Muhammad Siddique v. The State ( P L D 1979 Kar. 229) by Z. A. Channa, J. (as he then was) and Muhammad Ashraf alias Taoo v. The State (1980PCr.LJ94) by Abdul Qadir Shaikh, C. J. (now Judge Supreme Court), it seems that in numerous cases a number of learned Judges of this Court in similar facts and circumstances of the case have held that cognizance of the act cannot be sustained in the absence of compliance ofl requirements of sections 5, 6 and 14 of the Act. In the present case there were vague allegations and no case was registered against the petitioner. Even no F.

1. R. was lodged against him. There is also no mention of any clause of section 14 of the Act. The circumstances also did not warrant the issuance of a Non-Bailable Warrant in the first instance which was punitive act of. the learned Tribunal without any reasonable cause. Even otherwise the provisions of section 6 which are mandatory in nature have been clearly flouted inasmuch as no copy of the report was supplied to him at the time of service of the Non-Bailable Warrant of arrest. It is, therefore, a clear case of the violation of sections 5, 6 and 14 of the Act, as contended by the learned counsel for the petitioner.

17. The third contention as urged by the learned counsel for the petitioner is that the proceedings have been initiated by the respondent mala fide. It has been clearly averred in the petition supported by a affidavit that the report was filed by respondent No. 2 at the instance of two persons named Sajid and Abid, the brothers inter se, who are on inimical terms with the petitioner and are very intimate to and have very close contacts with respondent No. 2 (S. H. O. Latifabad) with the object to harass, defame and spoil the life and career of the petitioner who bears good moral character. This averment has not been controverted by respondent No. 2 who has failed to file any counter-affidavit. In the absence of any counter-affidavit to controvert the allegation of mala fide the very submission of the report under section 4 of the Act by the S. H. O. concerned seems to be mala fide and an abuse of the process of law on his part.

18. For the reasons discussed above, the petition is accepted and the impugned order, dated 15-11-1978 and all subsequent orders passed in the proceedings of Case No. 345 of 1978 by the learned Tribunal & S. D. M. City, Hyderabad are declared void as passed without lawful authority. Reliance may be placed on the decision of the Supreme Court in Yousuf v. Muhammad Aslam Zia and 2 others (PLD1958SC104), in which it was observed that "If on the basis of a void order subsequent orders have been passed eitherby the same authority or by other authorities, the whole series of such orders together with the superstucture of rights and obligations built upon them must, unless some statute or principle of law recognizing as legal the changed position of the parties is in operation, fall to the ground because such orders have as little legal foundation as the void order on which they are founded". The proceedings are, therefore, quashed. Personal Bond of the petitioner and the sureties also stand discharged.

19. The above are the reasons for my short order, dated 14-1-1985accepting the above petition on conclusion of the arguments. M. Z. M. Petition accepted.