1991 P Cr (PLP)

85/88 under section 188, P.P.C. 12-4-1988 Baldia P.S.

Pending trial 86/88 under section3/4, Proh. Ord. 12-4-1988 Baldia P.S. 20 grams Heroin -do 195/89 under section 3/4, Proh. Ord. 18-5-1989 Baldia P.S. 20 grams Heroin -do 402/89 under section 3/4, Proh. Ord. 2-11-1989 Baldia P.S. 40 grams Heroin -do The list of witnesses shown against him is as follows:-- (1) S.I. Raja Ajaib Khan of Eidgah Police Station Karachi. (2) S.H.O./Riaz Ahmed Qureshi of Eidgah Police Station Karachi. (3) A.S.I. Muhammad Haleem of Baldia Police Station Karachi. (4) S.I. Malik Muhammad Nawaz of Baldia Police Station Karachi. (5) S.I. Saidullah Khan of Baldia Police Station Karachi. (6) S.I. Muhammad Ramzan of Baldia Police Station Karachi. (7) S.I. S.H.O. Umer Rashid of Saeedabad Police Station Karachi. The S.H.O. requested that non-bailable warrants of arrest against the petitioner be issued. The first respondent registered the case and issued the non -bailable warrants against the petitioner. The petitioner was arrested and was produced before the first respondent on 12-1-1991. The case was put off to 24-1-1991. On 24-1-1991 the petitioner was not produced from jail. The case was put off to 4-2-1991 in the Court which was admitted on 12-2-1991. Mr. Abdul Aziz, learned counsel for the petitioner has contended that the mandatory provisions of sections 5 and 6 `of the Act have not been complied with. Mr. A.A. Mohammadally, learned Additional Advocate-General has fairly conceded that the mandatory provisions of sections 5 and 6 of the Act have not been complied with and this is a fit case for quashment of the proceedings. I have heard the learned counsel for the parties and have perused the annexures to the petition. A Tribunal constituted under section 3 of the Act is empowered to take cognizance under section 4 of the Act of the case if the person 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 receipt of 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 Ad 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; and (iii) general report of person complained or such other allegations made against him. Section 5 of the Act 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 warrants against him. It is apparent from the record that the' application under section 5 of the Act is dated 8-1-1991 and the order has been passed on 9-1-1991. A perusal of the impugned order would show that no reasons have been assigned by the first respondent while passing the order for the issue of non -bailable warrants of arrest against the petitioner. It also appears that copy of the complaint/report seems to have not been delivered to the petitioner accompanied with the warrants executed as averred in the petition, which stands uncontroverted. A perusal of the report and/or complaint would show that the second respondent cited eight 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 deals in narcotics. It is pertinent to- note that three acts were of the year 1980, one act of 1985 two acts of 1988 and two acts of 1989. The above cited eight instances of the objectionable acts of different nature relate to a period about ten years whereas the provisions of the Act are applicable to habitual offenders as seemingly appear from section 14 of the Act. In view of the circumstances explained, there is great force in the contention of the learned counsel appearing for the petitioner that the provisions of sections 5 and 6 of the Act have not been complied. The unreported judgment, dated 24-6-1982 in Constitutional Petition No.S-100 of 1982 Ghulam Mustafa v. S.D.M. (Mirpur Sakro) and others decided by my learned brother Saeed Uzzaman Siddiqui, J. supports the contention of Mr. Abdul Aziz. For the reasons discussed above, the petition is accepted and the impugned order, dated 9-1-1991 and all subsequent orders passed in the above proceedings of Case No.21 of 1991 by first respondent, are declared void as passed without lawful authority. The petitioner is allowed to be released forthwith unless required in any other case. H.B.T./G-263/K Petition accepted.