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Writ Petition No. 145 of 1968, decided on 30th May 1968
, Ss. S & 6‑Tribunal should initiate proceedings only after information laid before him and accused appears or is produced before him in response to summons or warrant issued under S. S Non‑observance of procedure, however, does not vitiate proceedings.
The detenus were originally proceeded against under section 55/110 of Cr. P. C. but such proceedings were dropped and instead the information was laid by the Police before the Tribunal (District Magistrate) for proceeding under section 13, West Pakistan Control of Goondas Ordinance, 1959. It was argued that the proceedings under section 13 of the Ordinance were void as the District Magistrate could not take cognizance of the case under the Ordinance without first following the pro cedure laid down in section 5 of the Ordinance:
Held, the detenus were arrested by the Police on its own motion under sections 55 and 110, Cr. P. C. and they were produced before the Tribunal, and it was at this stage that the information was laid before the Tribunal, as contemplated by section 5 of the Ordinance. In view of the provision that the Tribunal could under section 6 issue a non‑bailable warrant for the arrest of the person against whom an information is laid, the mere fact that the procedure was not strictly followed would not, vitiate the proceedings, which commenced after the information was laid and the Tribunal decided to hold an inquiry. The Tribunal was properly seized of the matter when the information was laid before him and the detenus were produced before him, and therefore, the argument that the information was not laid before him before notices were issued under section 6 has no force and the proceedings in consequence do not stand vitiated.
Mirza Mahmood Beg v. The Commissioner, Multan Division, Multan and others P L D 1966 S C 701 fol.
Prabhu v. Emperor A I R 1944 P C 73 ref.
, Art. 98‑Habeas corpus, writ of‑Question of other adequate remedy being available, of no consequence where liberty of person involved ‑ West Pakistan Control of Goondas Ordinance (XXXV of 1959), Ss. 8 & 18.
, S. 8‑Bail bond‑Amount of security‑Demand of excessive security, not within means of detenu‑Abuse of jurisdiction.
The real object of taking security is preventive rather than punitive, i.e. it is designed to prevent the commission of any offence in future and is not at all intended to punish a citizen for his past acts of commissions or omissions, and therefore, the amount of security bond and the number of sureties should be fixed according to the ability of a person having regard to his means and station in life, as to afford a fair and reasonable chance of compliance so as not to make the alternative of imprisonment unavoidable.
Therefore, demanding of excessive security would amount to circumventing the provisions of the West Pakistan Control of Goondas Ordinance, and might result in his detention instead of enlarging him on bail. In such a situation, it would be equated with an abuse of jurisdiction, which would amount to excess of jurisdiction. No hard and fast rules can be laid down as to what is reasonable amount, but it would, however, depend upon the financial position of the person concerned:
Muhammad Sarwar v. The State P L D 1965 Pesh. 14 rel.
Maqbool Ilahi Malik for Petitioner.
Sardar Fakhri Alam Khan, Officiating A. A.‑G. for the State.
Mian Yunas Shah and S. Ghazanfar Ali Shah Bokhary Amicus curiae.
Dates of hearing : 21st and 22nd May 1968.
--- By this judgment we propose to dispose of Writ Petitions Nos. 147/68, 158/68 and Criminal Revision No. 110/68, as a common question of law is involved in all these cases.
2. Writ Petition No. 145/68 has been brought by Abdul Sabur, son of Abdul Majid resident of Kamran Hotel, Ayub Mansion, Khyber Bazar, Peshawar under Article 98 of the Islamic Republic of Pakistan read with section 491 of the Criminal Procedure Code for an appropriate order/direction to the respondents for immediate release of Abdul Aziz, son of Abdul Majid, now confined in the Central Jail, Peshawar, with a further declaration to the effect that the confinement of the said person is illegal and without proper authority.
3. Briefly, the facts of the case are that Abdul Aziz detenu was arrested on the 6th of May 1968 by respondent No. 2 under sections 55 and 110, Cr. P. C. and was taken to the Police Station, where he was detained. On the 7th of May 1968, he was produced before the District Magistrate, Peshawar who ordered him to furnish a bail bond in the sum of Rs. one lac with four sureties. The District Magistrate instead of attesting the bail bond himself, referred it to the City Magistrate, Peshawar for verification of the sureties under section 122 of the Code of Criminal Procedure. The petitioner's counsel appeared before the City Magistrate along with the sureties for the purpose of verification on 9‑5‑1968, who was directed to appear on the 10th of May 1968. On the last mentioned date, the case was adjourned to the 13th of May 1968.
4. It was urged that respondent No. 1 subsequently added sections 13 and 14 of the West Pakistan Control of Goondas Ordinance, 1959 (hereinafter to be referred to as the Ordinance) to the case of the detenu without furnishing him any information, and his detention in the jail is without any lawful authority on the ground that he has been deprived of his right to be released on bail that the amount of bail bond demanded by the District Magistrate from the detenu was excessive, but in spite of it, the detenu was prepared to execute‑ the bail bond, and so in these circumstances, the authorities had no justification to prolong the matter and keep him under detention. There was no justification for applying sections 13 and 14 of the Ordinance.
5. In Writ Petition No. 147/68, brought by Faqir Muhammad, it was urged that Feroze, son of Ghulam Khan, resident of Pishta Khara Payan, was arrested on the 8th of May 1968, by the S. H. O., Police Station, Tehkal under section 55. of the Criminal Procedure Code and sections 13 and 14 of the Ordinance. The detenu was brought to the Court of the learned District Magistrate, Peshawar on 9‑5‑1968. but the case was adjourned to 23‑5‑68, as the Presiding Officer did not turn up on the above‑mentioned date. It is, however, urged that the case of the detenu was laid before the learned District Magistrate in his house on the 9th of May 1968, who ordered the release of the detenu Feroz on bail in the sum of Rs. one lac with four sureties in the like amount. The arrest and the detention of the detenu was challenged inter alia on the ground that this was without any lawful authority, as he was deprived of his right to present his bail application at the earliest opportunity, i.e. 9‑5‑1968, that the proceedings under sections 13 and 14 of the Ordinance are void, as the District Magistrate could not take cognizance of the case under the said Ordinance without informa tion having been submitted before him and the summons issued to the detenu calling upon him to appear before him.
6. In Writ Petition No. 158/68, brought by Muhammad Sharif, it was urged that Sardar Ali, son of Sher Ali, resident of Mardan Cantonment on being informed that his friend Farid Khan, son of Mir Ahmad has been arrested by the Police under the West Pakistan Control of Goondas Ordinance, 1959, went to the Police Station to enquire about the confinement of his friend. On reaching Police Station, Hotil, Sardar Ali himself was arrested on 7‑5‑1968 who was produced before the District Magistrate, Mardan on 8‑5‑68, who ordered him to execute a bail bond in the sum of Rs. one lac with four sureties in the like amount. The relations of the detenu produced four sureties before the District Magistrate for the execution of the requisite bail bond, but they were not allowed to do so and instead the detenu was sent to Jail. The arrest and detention of the detenu was challenged inter alia on the ground that he had been deprived of his right to furnish bail at the earliest opportunity i.e., 7‑5‑68, and that although he was willing to execute bail bond in the sum of Rs. one lac, yet he was not allowed to do so. That the proceedings under section 13 of the Ordinance are void on the ground that section 5 of the Ordinance was not complied with, that a copy of the information allegedly laid before the Tribunal against the detenu was not supplied to him.
7. Criminal Revision No. 110/68 has been filed by Roshan Zamir, son of Jehangir under section 19 of the Ordinance, read with sections 435 and 439 of the Criminal Procedure Code. It is alleged that a complaint under sections 13 and 14 of the Ordinance was lodged against him by the S. H. O. Police Station, B' Division, Mardan in the Court of the District Magistrate, Mardan on 1‑4‑1968 and the petitioner was summoned for the 23rd of April 1968. On the above‑mentioned date, the learned District Magistrate ordered the petitioner (wrongly written as respondent in the petition) to furnish bail bond in the sum of Rs. ten thousand with two sureties in the like amount for his appearance in the Court, failing which he was to remain in the lock‑up. On the 23rd of April 1968, a bail bond in the sum of Rs. ten thousand was executed with two sureties by the petitioner, which was accepted and the petitioner was released on bail on the same day and he was directed to appear in the Court on 21‑5‑1968. A non‑bailable warrant for the arrest of the petitioner was issued by the District Magistrate on 8‑5‑1968 for his appearance on 14‑5‑1968 and on the last mentioned date a fresh non‑bailable warrant for the arrest of the petitioner was issued for 21‑5‑1968. The order of the learned District Magistrate was challenged on the ground that the bail was cancelled without a notice to the petitioner, which was against the principles of natural justice. Moreover, the two orders passed by the District Magistrate mentioned above in effect M, amounted to the revision of his order, dated 23‑4‑68, and in these circumstances, it was urged inter alia that the orders dated 8‑5‑68 and 14‑5‑68 of the District Magistrate be set aside and the petitioner may be allowed to remain on bail in view of the order, dated 23‑4‑1968.
8. The West Pakistan Control of Goondas Ordinance is a special enactment in which a specific procedure has been laid down as envisaged by sections 5, 6, 8 etc. The jurisdiction to initiate proceedings is assumed on receiving information as contemplated by section 5 of the Ordinance, which is in the following words :‑
"5. Cognizance of cases by Tribunal.‑(1) No Tribunal shall take cognizance of a case under this Ordinance unless‑
(a) (i) the person complained against resides, or
(ii) the acts mentioned in clauses (a) to (i) of section 13 are alleged to have been committed, Within the local limits of its jurisdiction ; and
(b) The officer‑in‑charge of the police station within which such place as aforesaid lies lays information with it under subsection (2).
(2) The information shall be signed by the police officer concerned and shall briefly set out‑
(a) the practices with which the person complained against is charged ;
(b) instances, with details of time and place of such practices ;
(c) a statement of any relevant general repute in which such person is held and any other ground on which the information is based ;
(d) names and other particulars of witnesses who will be produced to support the allegations contained in the information ; and
(e) prayer as regards action to be taken against him."
The first requirement, therefore, is that there should be information laid under section 5 and that information must fulfil the conditions prescribed therein. The question would be as to whether the information should be prior in time or not to the appearance of the detenu and that it should give relevant particulars as laid down in section 5 of the Ordinance. Subsection (2), clause (e) of section 5 of the Ordinance reads:
"Prayer as regards action to be taken against him".
This clause suggests that no action can be taken by the Tribunal without information having been previously laid and prayer being made by the police officer concerned against the individual complained against. Section 6 of the Ordinance lays down :‑
"6. Summoning of the persons.‑On receipt of information under section 5, the Tribunal may summon the person complained against to appear before it, and shall, as soon as he appears before it, supply him with a copy of the information laid against him Provided that the Tribunal may, for reasons to be recorded, in the very first instance or at any later stage of the inquiry, instead of issuing summons, issue a warrant, non‑bailable or bailable, in such sum as may appear to it reasonable, for the arrest of the aforesaid person and his production before the Tribunal.
(i) if it is satisfied that the said person is hiding himself to evade service of the summons, or
(ii) if he does not appear in spite of the service of the summons, or
(iii) if it is, for any other reason, satisfied that such action is necessary."
The language of section 6 would indicate that after having received the information laid before the Tribunal by the police as contemplated by section 5 of the Ordinance, the tribunal after examining the contents of the application may decide to take or not to take any action. In the instant cases, the detenus were proceeded against under section 55 read with section 110 of the Cr. P. C., but those proceedings were seemingly dropped and instead information was laid before the tribunal for proceeding under section 13 of the Ordinance. From the perusal of the record, it is apparent that in these cases, no information was laid by the Police before the tribunal as contemplated by section 5 of the Ordinance, nor were the detenus summoned or arrested in pursuance of summons or warrant respectively issued by the tribunal. The detenus were arrested by the Police on its own motion under sections 55 and 110, Cr. P. C. and they were produced before the tribunal, and it was at this stage that the information was laid before the tribunal, as contemplated by section 5 of the Ordinance. In view of the provision that the tribunal could under section 6 issue a non‑bailable warrant for the arrest of the person against whom an information is laid, the mere fact that the procedure was not strictly followed would not, in our view, vitiate the proceedings, which commenced after the information was laid and the tribunal decided to hold an inquiry. Reliance was placed on Mirza Mahmood Beg v. The Commissioner, Multan Division, Multan and others (P L D 1966 S C 701). At page 707 it was observed :‑
"The irregularity, if any, is procuring the records, would not invalidate the order of the Commissioner. For analogy, the Privy Council case of Prabhu v. Emperor A I R 1944 P C 73, may be referred to. If a Tribunal is properly seized of a matter, the order passed by it, would not be vitiated by any antecedent irregularities, committed in procuring evidence or in securing the presence of the accused."
The Tribunal was properly seized of the matter when the information was laid before him and the detenus were produced before him, and therefore, the argument that the information was not laid before him before notices were issued under section 6 in view of the authority cited above has no force and the proceedings in consequence do not stand vitiated.
9. The learned Additional Advocate‑General urged that this writ petition was not maintainable because the order passed by the Tribunal under section 8 of the Ordinance was appealable under section 18, and since the detenus failed to exhaust their remedies, the writ petition was not maintainable. The order was passed by the tribunal under section 8 and appeal against the above‑mentioned order lies to the Commissioner under section 18, but since there is an excess of jurisdiction, in particular when the liberty of person is involved, the question of adequate remedy does not come into play, in particular in cases of habeas corpus.
10. In these cases, it is contended that the detenus were called upon to furnish security far beyond their means. It was urged that the action taken by the tribunal, demanding excessive security was not proper. The propriety of the order of the Tribunal requiring bond with sureties etc., and the amount of the security bond would be judged by the guide‑line :‑
(1) Nature of the information laid against him, and
(2) That the amount of bond with one or more sureties, in such sum as may appear to it reasonable, or as it may think fit. The quantum of bond, the number of sureties should be so fixed that it should be within the means of the detenus concerned to be able to meet that demand, i.e., the amount of bond or the number of sureties should not be excessive. It is well‑settled law that preventive actions are not intended to be punitive, but intended to prevent any apprehended mischief. Section 8 of the Ordinance visualises two positions: (1) Where the furnishing of bail bond would be considered sufficient ; and (2) Where for reasons to be recorded, the Tribunal may consider it expedient instead of allowing bail to detain him, but he must give a cogent reason for taking that drastic action, for example where the information is laid that the detenu is so desperate as to do certain act of arson or murder, or having received the information that the persons concerned are about to go to the tribal' territory.
11. Under section 10 of the Ordinance, the proceedings before the Tribunal are for all intents and purposes judicial, and the tribunal is required to inquire into the truth or otherwise of the information upon which action has been taken, and for that purpose may record evidence as may appear necessary, following in all such cases, the procedure prescribed in the Code of Criminal Procedure, 1898 for conducting trials and recording evidence in summons cases, but subject to the special provisions of this Ordinance. Therefore, in some of the cases regard being had to the nature of the information laid and the activities of the detenu, the question may arise whether it would be conducive and appropriate that the detenu may be detained, or he should be required to furnish security which is beyond his means. In all such cases where the Tribunal decides not to detain the accused and requires him to furnish bail bond, it is manifest, i.e., his activities are not so dangerous, therefore, he must be required to furnish security which is within his means, and demanding of excessive security would amount to circumventing the provisions of the Ordinance, and might result in his detention instead of enlarging him on bail. In such a situation, it would n be equated with an abuse of jurisdiction, which would amount to excess of jurisdiction.
12. No hard and fast rules can be laid down as to what is reasonable amount, but it would, however, depend upon the, financial position of the persons concerned. Since Abdul Aziz, one of the detenus in a man of position, we allow him bail in the sum of Rs. 30,000 (thirty thousand) with two sureties in the like amount to the satisfaction of the Tribunal or any oilier Magistrate, nominated by the Tribunal, pending the disposal of his case. We release the other detenus on their furnishing bail bonds in the sum of R. 15,000 (fifteen thousand) each with two sureties each in the like amount to the satisfaction of the Tribunal or any other Magistrate Ist Class. This order would he operative only during the enquiry and the Tribunal would be free to demand a bond for a reasonable amount if necessary, after ascertaining the financial positions of the detenus. It is heartening to note that the District Magistrate, Peshawar has already given directions that information be laid first before him, and the detenus be brought before him only after the information has been laid against them and they are produced before him in consequence of his orders passed under section 6 of the Ordinance. We consequently, partially accept the petitions and modify the orders of the Tribunal in the light of our above observations.
13. Before we take leave of the case, however, we would once again like to impress upon the Magistrates and the Tribunals that the real object of taking security is preventive rather than punitive, i.e., it is designed to prevent the commission of and offence in future and is not at all intended to punish a citizen for his past acts of commissions or omissions, and therefore, the amount of security bond and the number of sureties should be fixed according to the ability of a person having regard to his means and station in life, as to afford a fair and reasonable chance of compliance so as not to make the alternative of imprisonment unavoidable. One of us (Mr. Justice Faizullah Khan) in Muhammad Sarivar v. The State (P L D 1965 Pesh:14), had very exhaustively dealt with all the aspects of security bonds under the Criminal Procedure Code. That authority lays down the law in very clear manner and the rules enunciated therein would apply in all its rigour to all the Tribunals, including the Tribunal under the Goondas Ordinance, who are required to demand Security bonds from a citizen. We would, therefore, once again emphasise on the Magistrates and the Tribunals that the amount of security should never be excessive and that the amount should be fixed regard being had to the financial status of the person. concerned. We express the hope that the Tribunal while fixing the amount of securityor number of sureties would be guided by the principles enunciated in Muhammad Sanvar v. The State referred to above. We also express the hope that in future the (Tribunal would initiate proceedings under the Goondas Ordinance only after the information is laid before him and the accused appears or is produced before him in response to the summons or warrant issued by him under section 5.
A. E. Petitions partially accepted.
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