1996 P Cr (PLP)

Abbas Ali v. S.D.M., Tando Allahyar 1985 PCr.L1 2837; Asadullah v. S.D.M., Ratodero 1988 PCr.LJ 49; Inayat v. The State 1989 PCr.LJ 1115; Haji Ali Muhammad Solangi v. Tribunal/S.D.M., Nazimabad, Karachi PLD 1980 Kar. 267; Nazimuddin v. The State PLD 1976 Kar. 650 and Rajao Ali v. State 1984 PCr.LJ 2865 ref. (e) Sindh Crimes Control Act (1V of 1975)

Ss. 5, 6 & 14

Issue of process

Tribunal is not legally bound to issue process on mere filing of a police report, but he should verify the same and to see that it is in complete accordance with S.6 of the Sindh Crimes Control Act, 1975 before issuing any process under S.5 of that Act

Tribunal should also apply its judicial mind before issuing a warrant of arrest and should not deprive a person of his liberty on incompetent, baseless and frivolous report of a Police Officer. Rajab Ali v. State 1984 PCr.LJ 2865 ref. Mazhar Ali M. Siddiqui for Applicant. Abdul Fatah Mughal for the State. Date of hearing: 13th June, 1995. Since the facts as stated by the counsel for the petitioner are, more or less, same in ail these three applications and that the law involved in all these applications for quashment of the proceedings are also identical, as such, propose to dispose of all the abovementioned petitions through this one consolidated order.

2. Applicant Nisar son of Ghulam Mustafa in Criminal Miscellaneous Application No.69 of 1995 is facing proceedings under section 14 of Sindh Crimes Control Act, 1975 before the Tribunal and S.D.M. Garhi Yasin. Applicant Noor Muhammad Son of Ghulam Hyder in Criminal Miscellaneous Application No.70 of 1995 is also facing identical proceedings before Tribunal and S.D.M. Garhi Yasin. Applicant Abdul Hakeem son of Sher Dil in Criminal Miscellaneous Application No.71 of 1995 is also facing proceedings under section 14 of the Sindh Crimes Control Act before the S.D.M. Garhi Yasin. In all these proceedings the complainant is S.H.O. Police Station Nabi Shah Wagan. ??????????

3. I have heard Mr. Mazhar Ali M. Siddiqui, Advocate for the applicants and Mr. Abdul Fateh Mughal, Advocate for the State. I have also gone through the R&P summoned from the Court of S.D.M. Garhi Yasin with the assistance of both the learned counsel. It is strenuously contended by the learned counsel for the applicant that in all the three cases vide stereotype complaints common allegations were levelled by the S.H.O. against the applicants upon which learned S.D.M. has passed stereotype orders without applying its judicial mind and that no witness was cited in the report. Mr. Mazhar Siddiqui has further stated that the proceedings before Tribunal/S.D.M. are in nature of bailable warrants but despite that non-bailable warrants were issued against applicants and they were arrested. He has relied upon the case-laws reported as Abbas Ali v. S.D.M., Tando Allahyar 1985 PCr.LJ 2837, case of Asadullah v. S.D.M. Ratodero 1988 PCr.LJ 49 and case of Inayat v. The State 1989 PCr.LJ 1115. On the other hand Mr. Abdul Fatah Mughal learned counsel appearing for the State has supported the impugned order. He has also supported the reports of the S.H.O. by stating that it is in accordance with the provisions of sections 5 and 6 of Sindh Crimes Control Act, 1975 (hereinafter referred to as Act, 1975). He has prayed that all these three applications be dismissed.

4. All the three reports of S.H.O. Police Station Nabi Shah Wagan contain same allegations and were filed before Tribunal on the same day i.e. 18-4-1995. It is alleged in the said reports that the applicants are habitual thieves arrange commission of theft, dispose of cattles on taking Bhung money. That the applicants are of bad character, dangerous offenders and are patharidars. That they go in general public armed with deadly weapons and create harassment and if they are allowed to remain outside jail it will be hazardous to the general public and will be nuisance. In the end of the report, S.H.O. has prayed issuance of non-bailable warrants against the applicants. In the first case Criminal Miscellaneous Application No.69 of 1995 (Nisar v. The State) S.H.O. has cited four cases out of which three are under preventive provisions of Cr.P.C. and pertains to the year 1989 and 1990. The third case is of 1985 which is under section 380, P.P.C. According to the counsel for the applicants this case was disposed of some five years ago and the applicant Nisar was acquitted. No appeal or revision is pending.

5. In the second case Noor Muhammad v. The State (Criminal Miscellaneous Application No.70 of 1995) the S.H.O. has cited only one case which is under sections 110-55, Cr.P.C. of Police Station Dakhan pertaining to the year 1989. In the third case Criminal Miscellaneous Application No.71 of 1995 (Abdul Hakeem v. The State), the S.H.O. in his report has cited two cases, one under section 380, P.P.C. of Police Station Dakhan and the other is under section 110-55, Cr.P.C. In all these three complaints S.H.O. has not cited a single person as witness. On the same day i.e.18-4-1995 when S.H.O. filed his complaints, the learned S.D.M. passed order under section 5 of Sindh Crimes Control Act, 1975 and ordered for issuance of warrants of arrest. He also passed order under section 6 of the next day calling upon the applicants that why they may not be ordered to execute a bond in the sum of Rs.10,000 for maintaining good behaviour for a period of two years. On 19-4-1995 all the three accused after arrest were brought before the S.D.M. by the S.H.O. They were remanded to judicial lock-up at Shikarpur till 30-9-1995.

6. Section 5 of the Sindh Crimes Control Act, 1975 provides that the Tribunal upon receipt of the report of a Police Officer not below the rank of Sub-Inspector shall issue a summon requiring the person complained against to appear. Under proviso to section 5, a Tribunal is also competent to issue warrant of arrest against the person complained subject to the condition that there is reason to apprehend the commission of act complained and that such commission of act cannot be prevented otherwise than by the arrest of such person. This makes mandatory for the Tribunal to record its reasoning for issuance of warrant of arrest instead of issuing summons. Section 6 of Act, 1975 provides that all such summons or-warrants issued under section 5 shall be accompanied with the report and that such report will be provided alongwith summons or warrants to the person complained. That such report shall briefly disclose the acts which the person is charged, details of time and i place and general repute of such person complained or other allegations. This suggests that unless the report of the Sub-Inspector as provided under section 4(b) of the Act, 1975 is in conformity with section 6 of the Act a cognizance taken by the Tribunal will on such incomplete and defective report amount to be nullity in the eyes of law. Time and again, this Court has held this view and has quashed the proceedings pending before the Tribunal/S.D.M. In the case of Abbas Ali v. S.D.M. Tando Allahyar a learned Single Judge of this Court Mr. Naeemuddin, J. (as he then was) after considering more than 15 case-laws held that mere reference of the three cases without indicating their result or stage would not be sufficient to bring case within purview of section 14 of the Act, therefore, the proceedings pending before the S.D.M. were quashed in such circumstances. Similar view was followed by another learned Judge of this Court Mr. Nasir Aslam Zahid, J. (as he then was), in the case of Asadullah v. S.D.M. Ratodeto 1988 PCr.IJ 49 and by late Mr. Qaiser Ahmed Hamidi, J. in the case of Inayat v. The State 1989 PCr.LJ 1115.

7. The consequences of non-mentioning of the details and other particulars in the complaint of a police official and the allegations, if found vague and lacking in particulars came up for consideration before a Division Bench of this Court in the case of Haji Ali Muhammad Solangi v. Tribunal/S.D.M. Nazimabad, Karachi PLD 1980 Kar. 267 wherein the rule laid down by the former Chief Justice of this Court Mr. Tufail Ali A. Rehman (as he then was) in the case of Nazimuddin v. The State PLD 1976 Kar. 650 was approved and it was held that citation of mere list of cases in which the petitioner was challaned cannot be substituted for statement of particulars to be given under sections 5 and 6 of the Act, 1975. In view of the law discussed herein above, if the reports of S.H.O. are seen and considered then it can be easily said that these complaints are not in accordance with the provisions of section 6 of the Act, 1975 and, therefore, all the orders passed thereon by the learned S.D.M. are also illegal and of no effect.

8. The matter does not end here, the Tribunal has issued non-bailable I warrants on the report of S.H.O. instead of .issuing summons at the first instance, which should not have been done as a matter of routine,- such practice of issuing warrants of arrest is to be adopted only when there is imminent danger of commission of a cognizable offence by the person against whom complaint is made. Before passing any order for issuance of warrants S.D.M. should ensure that the report of a police official contains all necessary details and description as provided under section 6 of the Act, 1975. A Tribunal is not legally bound to issue process upon mere filing of a police report/complaint but he should verify the same and to see that it is in complete accordance with section 6 of the Act, 1975, before issuing any process under section 5 of the Act. The Tribunal should also apply its judicial mind before issuing a warrant of arrest. A person should not be deprived of his liberty on incompetent, baseless and frivolous applications of the Sub-Inspector. I am fortified in my view by the case-law reported as Rajab Ali v. State 1984 PCr.LJ 2865.

9. Result of the above discussion is that all the three applications filed under section 561-A, Cr.P.C. are accepted and the proceedings pending against the applicants under section 14 of the Sindh Crimes Control Act, 1975 before Tribunal/S.D.M. Garhi Yasin are quashed. All the applicants were released by this Court upon furnishing of surety in sum of fts.50,000 and on execution of personal bond of like amount. Personal bond stands cancelled and sureties are discharged. N.H.Q./N-562/K???????????????????????????????????????????????????????????????????????????????? Proceedings quashed.