1989 P Cr (PLP)

Date of hearing: 20th October, 1988. Counsel for the applicants in both the cases does not press the miscellaneous applications being Miscellaneous Applications Nos. 893 of 1988 and 894 of 1988 for stay of proceedings pending in the Court of S.D.M./Tribunal Saddar Division, Sukkur listed for hearing today. He, however, requests that the regular hearing of the main applications may be taken up which is not objected to by Mr. Gul Bahar Korai appearing for the learned Assistant Advocate‑General for the State. The stay applications are therefore, dismissed as not pressed. Now, by consent the main applications are taken up for regular hearing. These are two Criminal Miscellaneous Applications Nos. 712 of 1988 and 713 of 1988 filed by Kamal Khoso and Ali Mardan Khoso, under section 561‑A, Cr.P.C. for quashment of proceedings initiated against them under section 14 of the Sind Crimes Control Act, 1975. Mr. Abdul Kadir Shaikh, learned counsel for the applicants submits that the Station House Officer of Police Station Abad, District Sukkur submitted two reports, dated 4‑7‑1988 before the S.D.M./Tribunal, Sukkur for initiating proceedings under section 14 of the Sind Crimes Control Act, 1975 against the applicants who are brothers. In the said reports, the S.H.O. stated that applicant above named deal in narcotics and that they are dangerous criminals and their remaining outside the jail is a public nuisance. The S.H.O. also prayed for issuance of warrants of arrest against the applicants. In support of the above allegations the S.H.O. mentioned one case under section 352/332, P.P.C. Crime No. 19 of 1982 against applicant, Kamal Khoso and which is pending and two cases against applicant, Ali Mardan, being Crime No. 146/85 under section 43(3) of Abkari Act, and Case No. 55 of 1987 under section 307/353, P.P.C. In the list of witnesses the said S.H.O. and other two police officials (his subordinates) are mentioned. The learned S.D.M. on the same day issued warrants against both the applicants. They were arrested and put in jail but were released on bail on 12‑7 1988 on furnishing surety by them. The applicants, then, have filed above applications for quashment of proceedings pending in the Court of S.D.M./Tribunal Saddar Division, Sukkur, in this Court as referred to above. Mr. Abdul Kadir, learned counsel for the applicants in both the cases submits that the proceedings against the applicants are mala fide. Learned counsel for the applicant at the outset submitted that the report was lodged by the S.H.O. as the applicants were witnesses in a case under section 353, P.P.C. against the police officials. As this fact was not mentioned in the application, the learned counsel files a statement in writing to that effect. Learned counsel submits that the learned S.D.M. did not apply his that and has not given any reason for not issuing the summons in the first instance as required under section 5 of the Act. The provisions of section 6 of the Act have also been contravened as no copy of the report was attached with the warrant. He further submits that the allegations against the applicants are vague and general and no specific instances have been cited nor the time and place have been mentioned in the report. Learned counsel, in support of his submissions relies on two judgments of mine reported as Mahmood Ahmed (Muhammad Ahmed) v. Tribunal/S.D.M. City, Hyderabad P L. D 1988 Kar.

599. Reliance is also placed by him on another judgment by a learned Single Judge of this Court reported as Amir Ali and 22 others v. State 1986 P Cr. L J

30. The above cited case support the contention of the counsel for the applicants as regards non‑compliance of mandatory provisions of sections 5 and 6 of the Act by the learned S.D.M./Tribunal. It may be observed that the solitary case against the applicant Kamal Khoso and the two cases against his brother Ali Mardan Khoso have no direct nexus to the allegations contained in the report. There is no material in the report sufficient to show that the person against whom the proceedings are initiated frequently and habitually commit one or more offences, 35 in number, as mentioned under section 14 of the Act. The expressions `habitually' and `frequently' used in various sub‑clauses of section 14 of the Act denote a constant habit on the part of the person to commit such offence. That is why, the law terms such a person as `habitual offender'. The first and the third judgments referred to above elaborately discuss this aspect of the matter. It is in this background that Mr. Gul Bahar Korai appearing for the State concedes to the grant of the applications, For the aforesaid reasons, the above criminal miscellaneous applications are accepted and the proceedings pending before S.D.M.,/Tribunal, Sukkur arc quashed. M.B.A./130/K Proceedings quashed.