1986 PLP 1072 (MLD)

After hearing arguments addressed at Bar, both the applications were allowed and the cases in 'question pending in the lower Court were quashed by short order, dated 3‑3‑1986 for reasons to be recorded separately. Following are the reasons in support of the short order. The cases sought to be quashed were started on the basis of police reports submitted by S.H.O. P.S. Baldia, Karachi. It was contended by the learned counsel for the applicants that since the reports submitted by police do not satisfy the requirements of section 6 of the Act, the cognizance taken by the learned S.D.M. on such reports was not in accordance with law and as such all the proceedings in relation to the said cases were vitiated. Elaborating his arguments the learned counsel submitted that as required by section 6 the police reports do not mention the details of time and place of the acts complained against. In support of his arguments he also placed reliance on some reported cases. In order to appreciate the arguments of the learned counsel for the petitioners, it may be useful to reproduce the material portion of the police reports. In the case against the applicant Momin Khan the material portion of the police report reads as under:‑ "The respondent is notorious encroacher who occupied the Government land and sells it to the innocent people and later on received BHATTA in the name of K.M.C. and Police who build new quarter in Ittehad Town. Having source in the locality no one dared to report against him at Police Station. He has no source of income except selling of Government land to innocent people and also extracting money from them. Since the respondent is a notorious land grabber and encroacher of Government land, and has also become hazardous for the general public of the locality, therefore, it is requested that he may kindly be prosecuted and detained under section 14, Sind Crimes Control Act. Non‑bailable warrant of arrest in respect of the respondent may kindly be issued." In the case against the applicant Malik Sardar Khan the material part of the police report reads as under:‑ The respondent is notorious eneroacher who occupied the Government land and sells it to the innocent people, and later on received BHATTA in the name of K.M.C. and Police who build new quarter in Ittehad Town. Having source in the locality no one dared to report against him at Police Station. He has no source of income except selling of Government land to innocent people and also extracting money from them. Since the respondent is a notorious land grabber and encroacher of Government land, and has also become hazardous for the general public or the locality, therefore, it is requested that he may kindly be prosecuted and detained under section 14, Sind Crimes Control Act. Non‑bailable warrant of arrest in respect of the respondent may kindly be issued." Proviso to section 6 inter alia requires that details of time and place of the acts with which the persons complained against is charged shall be briefly 'stated. From the police reports reproduced above it is clear that the applicants have been charged with allegations of being notorious encroachers who occupy the Government land and sell it t innocent people and receive "BHATTA" in the name of K.M.C. and Police. This charge is, however, .not backed by any instance. It is also not specified in the reports, as to when and where the applicants committed the acts of encroachment. The report is also silent as whom the applicants have sold the Government land encroached upon by them. In absence of this information the allegations contained in the police reports are obviously vague and general in nature. The other allegation with which the applicants are charged i that they have become hazardous for the general public of the locality. f Prima facie this allegation is also vague and general in nature. N instance has been cited to show how, when and where the applicants acted in the manner indicating that they have become hazardous for general public. The above discussion clearly shows that the police reports on which cases against the accused have started do not satisfy requirements of law as set out in section 6 of the Act. Consequent cognizance taken by .the lower Court on such reports was wrong and cannot be sustained in law. The first case relied upon by the learned counsel for the applicants is a D.B. decision of this Court reported as Uris v. Tribunal and Sub‑Divisional Magistrate, Kotri and 2 others P L D 1977 Kar.

506. The view taken in this case was that no cognizance can be taken under section 14 of the Act on the police report which does not give material indicating that the case falls under the Act. As no material was placed before the Tribunal except the Police report containing mere reproduction of the language used in some clauses of section 14, the Tribunal could not be said to have acted legally in taking cognizance of such case. Another case referred to by the learned counsel is reported as Shah Nazar Khan v. Assistant Commissioner and S.D.M. Malir, Karachi and 3 others P L D 1977 Kar. 582 wherein the word 'habit' has been interpreted as under:‑‑ "Now habit is customary method of doing a thing. It is a customary conduct deriving as a tendency arising from frequent repetition when a person has repeatedly acted in a particular way at intervals whether regular or irregular for such length of time as that we can predicate with reasonable assurance that he will continue so to act, we may affirm that this is his habit. It would be incorrect to say that a man has a habit of anything from a single act. The legislature must be taken to have used to word 'habit' as meaning persistence in doing an act, a fact which is capable of proof by adducing evidence of commission of a number of similar acts. Habitually must, therefore, be taken to mean repeatedly, or persistently." In view of the above authorities the learned counsel argued that as required by clause xxxii of Section 14 of the Act, the police report do not show that the applicants are in the habit of unauthorisedly occupying or digging in or constructing or in. any other manner encroaching upon the land, belonging to Government particularly where no such intances of encroachment committed by the accused have bees specified in the reports. The argument of the learned counsel was no without force. In order to support the allegations of encroachment, it was necessary to cite concrete instances in the police reports, which however, are silent in this regard. For above reasons, as stated above, the proceedings taken out and pending against the accused in the lower Court cannot be sustained in law and, therefore, they were quashed. M.Y.H. Proceedings quashed.