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Criminal Revision Application No. 163 of 1975, decided on 28th April 1976.
‑‑ S. 110 read with S. 561‑A‑Security proceedings ‑‑Quashment -Petitioner proceeded against under S. 110, Cr. P. C. on sole ground of his being a notorious smuggler‑Cases of smuggling, held, do not fall within purview of S. 110, Cr. P. C.‑Proceedings quashed, in circumstance.‑(Security proceedings‑Quashment of proceedings).
Muhammad Ali Shaikh for Applicant.
Manzoor Hussain for A.‑G. for the State.
Date of hearing : 28th April 1976.
This criminal revision application under section 439/561‑A Cr. P. C. is directed against the orders passed by S. D. M. Harbour against the applicant under section 112 and 117 (3) Cr. P. C. in proceedings started under section 110 Cr. P. C. by the learned S. D. M. on the report of S. H. O. Harbour, Karachi.
2. The facts in brief are that the petitioner was said to be a notorious smuggler and he was sent up in two cases of smuggling one of Gharo police and the other by the Coast Guards, Karachi. The petitioner was then sent up for being detained under section 110 Cr. P. C. also on the same grounds and also because he was considered to be desperate and dangerous and his remaining at large was considered to be harmful to the public. The learned S. D. M. passed order under section 112 Cr. P. C. on 7‑8‑1975 mentioning that the applicant was desperate and dangerous and his being at large without security was hazardous to the community and calling upon him to show cause why he should not be ordered to execute a bond in the sum of Rs. 20,000 with two sureties. On the next day, i.e. on 8‑8‑1975 the learned S. D. M. examined Khawaja Nisar Ahmad, Ghulam Rasool and Salim Khan and passed another order under section 117(3), Cr. P. C. stating that he was satisfied that immediate measures were required for the prevention of the commission of offences of smuggling of goods into the country. He, therefore, directed the petitioner to furnish interim security and on his failure the petitioner was to be remanded to judicial custody.
3. It has been pointed out by Mr. Muhammad Ali Shaikh that all the proceedings and the orders under sections 112 and 117(3), Cr. P. C. were passed ex parte behind the back of the petitioner who was already under detention in jail under Maintenance of Public Order Ordinance. This is evident from the fact that the order dated 7‑8‑1975 shows that the 112, Cr. P. C. order was to be attached with the production warrant. On 8‑8‑1975 the statements of three witnesses were recorded but the record does not show the presence of the petitioner during the record of those statements as he was not given any opportunity to cross‑examine the witnesses.
4. Apart from these defects and irregularities it has been argued by Mr. Muhammad Ali Shaikh that the only ground for which the petitioner has been sent up under section 110, Cr. P. C. is that he is a notorious smuggler. But being a smuggler does not render him liable for proceedings under section 110, Cr. P. C. The fact of his being desperate or dangerous has to be read with the context that the person proceeded against should be by habit a thief, receiver of stolen property and so on. A person cannot be sent up on the sole ground of his being a smuggler and, therefore, a desperate and dangerous person. Mr. Muhammad Ali Shaikh has also pointed out that the petitioner has also been sent up for the substantive offences of smuggling mentioned in the police report and he has even been sent up under the Crimes Control Act for the same offence. A person cannot, however, be prosecuted for one and the same offence in number of different proceedings.‑
5. In the order under section 117 (3) the only ground mentioned for furnishing of interim security is to prevent repetition of the offence of smuggling. This is not what is contemplated under section 110 or under section 117 (3), Cr. P. C. Cases of smuggling do not fall within the purview of section 110, Cr. P. C. The entire proceedings would, therefore, appear to be misconceived.
6. For the reasons stated above the orders under section 112 and 117 (3) and the proceedings under section 110, Cr. P. C. started against the petitioner are hereby quashed.
Proceedings quashed.
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