P L D 1977 Lahore 341 (PLP)

The Station House Officer, Police Station B-Division, Sahiwal, submitted a report to the Tribunal for taking action against the petitioner under sections 13 and 14 of the Control of Goondas Ordinance alleging that he is a bad character, is a habitual burgler and a thief and also is in the habit of abducting women and committing adultery. It is further alleged that he is a desparate, a bad character and has no other means of living except to live on crimes and that the people are fed up with him and nobody feels safe at his hand. In order to substantiate the allegations he relied on six cases which were registered against him arid in which he was prosecuted and are shown at serial Nos. 1 to

6. He further relied on the reports which are entered in the Police Station on 11th of June, 1975. 7th of June 1975, 5th of June 1975, 15th of June 1975 and 17th of June 1975. They are to the effect that the petitioner tried to crack jokes at the ladies. The petitioner has moved this petition for a declaration that the proceedings initiated against him. being mala fide, were without jurisdiction and without lawful authority.

2. It is alleged that the petitioner was acquitted in all the cases shown at serial Nos. 1 to 6 and that so far as reports mentioned at serial Nos. 7 to 11 are concerned, they were made for no other purpose except to submit a complaint against him under the Ordinance. The reports mentioned at serial Nos. 7 to 11 were entered at the instance of Khushi Muhammad , Muhammad lbrahim, Ghulam Mustafa, Muhammad Azeem and Ghulam Abbas. They have all submitted affidavits which are to the effect that the Sub-Inspector, in charge of the Police Station on his own entered the reports; that they did not know about !heir contents at all and that Rehmat Ali petitioner was a gentleman and a repectable citizen. It is also alleged in the petition that the cases were registered at the instance of one Nazir Ahmad, a Mill owner, and earlier also on two occasions proceedings under the Ordinance were started against him at his instance. A report was submitted against the petitioner under the Ordinance in 1968 and he was discharged by the order of the A. D. M./Tribunal on the 17th of December 1969. The proceedings were again initiated in 1971 and he was discharged by the order of the A. D. C(G)/District Tribunal dated the 18th of July 1971. It is contended that having failed in all these attempts this is yet another case under the Ordinance.

3. The petition was admitted to hearing on the 13th of August 1975. Civil Miscellaneous No. 2 of 1916 was made on behalf of the Advocate General for accelerating the hearing of the case which was accordingly done. The respondent, however, has not submitted any written statement and also not controverted the allegations made in the petition.

4. It was competent for the police to have initiated proceedings under section 5 for taking action under sections 13 and 14 of the Ordinance. The Tribunal, after the report is submitted to it, is under a statutory obligation to decide the matter on the material which may be produced before it. On the facts stated in the report if an action under the Ordinance is competent the High Court will not, in the exercise of its jurisdiction under Article 199 of the Constitution, embark on an inquiry to determine the truth or falsehood of such allegations, because to do so would be to assume jurisdiction which is exclusively vested in the Tribunal. In a case where the writ jurisdiction `1 is invoked on the ground that even if the facts stated in the report are accepted to be correct, no action is competent and that the proceedings, therefore, should be quashed we are reluctant to entertain such petitions for the reason that the petitioner can move the same application before the Tribunal. It is for the reason that if the High Court ware to decide this question, it may result in an anomalous situation. If the High Court by accepting the plea quash the proceedings, the matter may end there. But what shall be the position if it examines the pleas and dismisses the petition by holding that the facts, if established, would warrant an action under sections 13 and 14 of the Ordinance. The case, in the latter situation, will proceed before the Tribunal and the finding of the High Court is bound to influence the judgment. The High Court, therefore, should not give any finding in such a case but leave the matter for the decision of the Tribunal.

5. The position, however, is different where challenge to the proceedings is on the ground of mala fide in fact and in law. The proceedings were taken at the instance of the police under the Ordinance against the petitioner in 1968 on the ground that he was suspected in some theft cases, that he was in the habit of abusing and uttering obscene language, that he committed riots and gave threats to the people. The Tribunal by its order dated the 27th of December 1969 discharged him. Again, he was proceeded under the Ordinance in 1971 on the allegation that he was involved in a number of cases, he was a habitual thief, he kept the stolen property and that he threatened the persons who deposed against him. The Tribunal by its order dated the 18th of July 1972 discharged him by observing t "All these facts create no doubt in my mind that the prosecution has failed to establish a case under the Goondas Ordinance, which may compel me for the binding down of the respondent" I9 there any justification to take an action against the petitioner in view of the decision of the Tribunal for anything which might have happened before those dates ? The police has, however, in the report relied on cases which were registered against the petitioner on the 21st of April 1970, 29th of April 1970, 4th of May 1970, and t 5th of May 1971. If they could not be the basis for an action against him and the Tribunal on two occasions found that no action against him was competent, there is hardly any justification to again place reliance on them for initiating the present proceedings. The petitions, moreover, was acquitted in all cases and this fact is admitted in the report itself. So far as the case which was registered against the petitioner on the 16th of May 1975 under section 294, P. P. C, is concerned, he was acquitted on the 27th of October 1975 by Mr. Altaf Hussain, Magistrate First Class, Sahiwal, and he unmistakably held that no case had been made out against him. Thus, on these facts no action was warranted against the petitioner. The police has relied also on the reports which were entered at the Police Station on 4th of June 1975, 7th of June 1975, 5th of June 1975, 15th of June 1975 and 17th of June 1975. They all relate to the teasing of women. The informants are Khushi Muhammad, Muhammad Ibrahim, Ghulam Mustafa, Muhammad Azeem and Ghulam Abbas. They have all submitted affidavits stating that they did not make any complaint against the petitioner. This has not been controverted by the respondent either by an affidavit or by statement at the bar. The position which emerges is that there is no evidence whatsoever against the petitioner which may have warranted the initiation of proceedings against him under section 5 for an action under sections 13 and 14 of the Ordinance. No reasonable person could, on these facts, ask for an action under the Ordinance.

6. The Ordinance was enacted with a view to controlling disorderly persons and taking action against the persons who were known to be Goondas. The object was not to harass the people and use it as an instrument of oppression against the persons for ulterior motives. To initiate action against the petitioner on facts which could not militate against him is capricious, unjust and wanton. It was held in East and West Steamship Co. v. Pakistan P L D1958 S C(Pak.)41 that "where a statutory functionary acts mala fide or in a partial, unjust and oppressive manner, the High Court in the exercise of its writ jurisdiction has ample power to grant relief to the aggrieved party." In Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri P L D 1969 S C 14 it was observed : "The real question, to my mind, in every case of mala fides is : Did the authority or officer concerned reasonably believe that his duty as such officer required him to act as he did ? A person acting in pursuance of a statute cannot be said to be acting bona fide if he has no reasonable ground for believing that the statute justifies him in what he does. If the case, therefore, is one where there are no grounds or the grounds are such that no reasonable person would have acted on the supposition that he was acting under the authority of the statute than that is a case in which the Courts would in exercise of the power under Article 98 of the Constitution declare the act to have been done in an unlawful manner." In Zafar-ul-Ahsan v. Republic of Pakistan P L D 1960 S C 113 it was held that "where the proceedings are taken mala fide and the statute is used merely as a cloak to cover an act which in fact is not taken though it purports to have been taken under the statute, the order will not, in accordance with a long line of decisions in England and in this sub-continent, be treated as an order under the statute". In State v. Zia-ur-Rehman PLD1973SC49 it was held that "a mala fide act stands in the same position as an act done without jurisdiction, because no Legislature when granting a power to do an act can possibly contemplate the perpetration of injustice by permitting the doing of that act mala fide." to Federation of Pakistan v. Saeed Ahmad P L D 1974 S C 151 it was held : "Action taken colourable exercise of powers, that .is to say, for collateral purpose: not authorised by the law under which the action is taken or action taken in fraud of the law are also mala fide." I am of the view that the proceedings were not initiated against the petitioner solely for the purposes of controlling him as a disorderly person, The police, it appears, felt frustrated for having failed in two earlier occasions against the petitioner under the Ordinance and, therefore, manipulated the care. It is borne out by the fact that they entered rivet ,reports (shown at aerial Nos. 7 to 11 in the report) in quick succession all in a period of twelve days ranging from 5th of June 1975 to 17th of June 1975, and based on the same allegation that he teased women. The infor mants have sworn affidavits disowning the reports. The factors which weighed with the police were not legal, legitimate and within the ambit of the Ordinance. On the facts of the case the only inference that can be drawn and it is irresistible that proceedings against the petitioner were initiated for collateral purpose and the police had no other intention except to keep him under a constant harassment. The Ordinance was used only as a cloak to take actions against him which otherwise was not warranted. T may observe that such conduct on the part of the police has very unhealthy effect on the society and at times makes even the innocent persons desparate ,to do things which otherwise they might not have even conceived.

7. The petition is accepted and the proceedings before the Tribunal pare declared to be without lawful authority and they shall be of no legal effect. There shall be no order as to costs. S. Q. Petition accepted.