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Writ Petition No. 1150 of 1973, decided on 23rd November 1973.
-----Ss. 5(2) & 8(2)-Foundation of jurisdiction of Tribunal-Not depen dent just upon mode or manner prescribed for presentation of report or complaint-Irregularity in that behalf, cannot invalidate proceedings before Tribunal or order passed by it-Proposition that Tribunal required to hold inquiry by examining witnesses for passing order of detention under S. 8(2)-Held, not warranted in law- Criminal Procedure Code (V of 1898), S. 173.----[Jurisdiction].
It was vehemently contended that the Tribunal has seriously erred in taking cognizance of the case inasmuch as the information/complaint does not comply with the requirement of section 5(2) of the Ordinance and that the Tribunal has also seriously erred in passing the order under section 8(2) of the Ordinance inasmuch as the reasons given are neither cogent nor proper.
Held : It is true that the Ordinance has prescribed a specific triode for the initiation of proceedings upon which the Tribunal is to take cognizance, but the position in law is also well settled that the foundation of the jurisdiction of a Tribunal created by the Statute is not dependent just upon the mode or the manner prescribed for the presentation of the report or the complaint, and any irregularity in that behalf is not treated to be fatal so as to invalidate the proceedings before the Tribunal or the order passed thereon, if the Tribunal otherwise is properly seized of the case. The Code of Criminal Procedure has also prescribed particular mode under section 173 in which police report is to be submitted upon which cognizance is to be taken by the Court.
There is also no warrant in law for the proposition that for passing an order of detention under section 8(2), the Tribunal is required to hold an inquiry by examining witnesses because by the clear and unambiguous language, the Legislature has empowered the Tribunal, under this provision of law, just for the reasons to be recorded by it, to order detention of the person complained against, instead of calling upon him to furnish a bond for appearance. If the interpretation sought to be placed is accepted, certain extra words have to be introduced to the effect of making an inquiry a prerequisite condition for making an order of detention-a sort of embargo would have to be placed on the Tribunal--for which there is no justification at all.
Manu v. The State P L D 1964 Kar. 34 ; Abdul Sabur v. The District Magistrate and others P L D 1969 Posh. 167 ; Abdul Samad alias Dadda v. Khan Iqbal Ahmed Lodhi P L D 1972 Lah. 41 and Mst. Nusrat v. The District Tribunal, Lahore and another P L D 1969 Lah. 182 ref.
-----Art. 199 read with West Pakistan Control of Goondas Ordi nance (XXXV of 1959), S. 5-Tribunal just taking cognizance of case-Whether High Court should scrutinize legality of proceedings at preliminary stage.
Muzaffar Khan v. The State P L D 1969 Lab. 445 ref.
Ibrahim Memon for Petitioner.
The petitioner seeks to challenge the proceedings drawn up against him by the District Magistrate and Tribunal, Karachi under the West Pakistan (Control of Goondas) Ordinance, 1959 on the ground that the Tribunal could not validly take cognizance of the case as the complaint filed by the S. H. O. Preedy Street, Karachi does not fulfil the requirement of section 5(2), and the procedure adopted by the Tribunal leading to his detention is also without lawful authority. It is further urged that the proceedings against the petitioner are mala fide as these have been "managed" by his relation who is on inimical terms with him and also by the petitioner's tenants against whom he has filed ejectment proceedings.
In order to appreciate the contentions reference would be necessary to the allegations made against the petitioner by the S. H. O., Preedy Street Police Station, Karachi. In the relevant column the practices and instances with which the petitioner is charged it is mentioned as follows :----
Cognizable Offence
(1) F. I. R. No. 73/65 under Special Judge Central, Karachi.
section 420, P. P. C.
On 8-1-68 convicted to undergo 4 years'
R. I. and fine Rs. 2 lacs from the Court of
Capt. Syed Iftikhar Hussain, Special
Judge, Central, Karachi.
(2) 194/73 under section 307/ This case was registered on the complaint
363/451, P. P. C. of Abdul Alim Sherkoti son of Abdul
Hakim resident of Flat No. 2, Camble
House, Clifton Road, Karachi at
P. S. Frere. After the investigation the
case was challaned to Court, where it is
pending trial.
(3) X/70 under section 151/ Compromised on 25-7-70 from the Court
107/177, Cr. P. C. Com- of S. D. M. Civil Line Karachi.
plainant A. S. I. Ghulam
Rasool of Mithadar P. S.
(1) Non Cog. report under Complainant Sami Ahmed Jafri.
section 323, P. P. C.
Entry No. 42 dated
26-5-70.
(1) Application from Meh- The contents of the application are, that
boob Ellahi son of Haji Press room of the applicant was vacated by
Muhammad Ismail, resi- the respondent and occupied unautho
dent of Paparbai Build- risedly.
ing, Frere Road, Karachi,
dated 26-5-60.
(2) Application of Abdul The contents of the application are, that the
Alim Shorekoti son of respondent threatened the applicant with
Abdul Hakim Senior dire consequences.
E x e c u t i v e Officer
National Bank of Pakistan dated 11-9-73.
(3) Applications of Abdul Allegations are, that the respondent posed
Qudus Behari son of himself as landlord and got house rent
Moulana Abdullah Presi- from the tenants of building, if some one
dent of Mubajir Com- refused to pay the house rent, he ejected
mittee dated. them forcibly and threatened them and
(1) 7-9-70 submitted false suits in the Courts.
(2) 4-7-70
(3) July 70
(4) 15-12-72
The above-mentioned respondent is at 98 Depot Lines, Karachi in the area of this Police Station. The people of Raja Mansion and Paper Bai building are afraid of his activities for submitting false applications and false cases against them.
The names and other particulars of the witnesses are shown as under :----
(1) Muhammad Iftikhar Hus- 'He will verify the summary Order of
sain, Special Judge, Central, Case No. 73/65 dated 8-1-1968 when the
Karachi. accused was convicted for 4 years' R. I.
and fined Rs. 2 lacs.
(2) Abdul Ali Sheikh son of Complainant of case Crime No. 194/73
Abdul Hakim resident of under section 307/363/452, P. P. C.
Flat No. 2 Clifton Road,
Camble House, Karachi.
(3) A. S. I. Ghulam Rasool of He arrested the respondent under
Mithadar P. S. section 151, Cr. P. C. and submitted
challan under section 107/117, Cr. P. C.
on 26-5-1970.
(4) Sami Ahmad Jafri son of He lodged a non-cog. report against the
Fazlur Rahman Jafri, resi- respondent under section 323, P. P. C.
dent of 1-7/95 East Defence on 26-5-1970.
Society, Karachi.
(5) Mehboob Elahi son of Haji Submitted four applications against the
Muhammad Ismail Papar Bai respondent to the various authorities
Building, Frete Road, for illegal activities of the respondent
Karachi. (Photo copies attached).
(6) Abdul Qudus Behari son of He submitted six applications against
Abdullah resident of the respondent to the various authori
Sawami Narayan Temple, ties, re : ejecting the tenants of Raja
Bunder Road, Karachi. Mansion and Paparbai Building and
threatening dire consequences (Photo
copies attached.)
(7) Abdul Aziz son of Chaudhri He lodged a non-cog. report under
Sher Muhammad resident of section 323, P. P. C. at Mithdadar P. S.
Paper Bai Building Nickle regarding assault by the respondent.
Road, Karachi.
(8) Witness of general reputation.------
(1) Muhammad Inayat Khan son of Muhammad Ghayoor Khan resident of 3/11 Raja Mansion, Karachi.
(2) Shakoor son of Sh. Bakhshi 43-D, Block 5, Raja Mansion, Karachi,)
(3) Mirto Khan son of Fateh Khan resident of Raja Mansion.
(4) Jamal Bhai son of Easa Jee resident of Raja Mansion.
(5) Lai Beg sor of Meher Beg resident of Raja Mansion.
(6) Muhammad Riza Khan son of Muhammad Nawaz Khan, 4/607 Drig Colony.
(7) Abdul Ghani son of Suleman, resident of Zahoor Mansion, Jinnah Street, Ranchore Lines, Karachi.
(8) Irshad Iqbal son of Muhammad Gulzar, resident of Zahoor Mansion Jinnah Street, Ranchore Lines, Karachi.
(9) S. H. O. Muhammad Suleman Butt, Preedy Police Station, Karachi.
The reasons that prevailed with the Tribunal for passing the order of detention against the petitioner are "that he was reported to be a bully and be causes fear and alarm and injuries to the persons of locality, the people of Raja Mansion and Paperbai Building are afraid of his activities for submitting false applications and cases against them, and that the S. H. O. has also opposed his release on bail on the ground that he will tamper with the witnesses and will not allow them to attend this Tribunal for evidence."
It was vehemently contended by the learned counsel for the petitioner that the Tribunal has seriously erred in taking cognisance of the case inasmuch as the information/complaint does not comply with the requirement of section 5(2) of the Ordinance. The learned counsel further urged that the Tribunal has also seriously erred in passing the order under section 8(2) of the Ordinance inasmuch as the reasons given are neither cogent nor proper.
It is apparent that the requirement of section 5(2) of the Ordinance is that the information to be laid before the Tribunal must briefly set out the following particulars :----
5(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, other particulars of witness who will be produced to support the allegations contained in the information ; and
(e) prayer as regards action to be taken against him.
The argument of the learned counsel in regard to the complaint against the petitioner being invalid was that so far as 3 cognizable cases mentioned by the S. H. O. are concerned, one of them has already been disposed of, and the other two are yet pending before the Courts of law and these being yet sub judice cannot be a valid basis for an action under the West Pakistan (Control of Goondas) Ordinance, 1959. In regard to non-cognizable reports and the applications against the petitioner, the learned counsel contended that the requisite details of time and places of the practices not having been stated, the complaint filed by the S. H. O. is an invalid foundation for taking cognizance under section 5 of the Ordinance.
It is true that the Ordinance has prescribed a specific mode for the initiation of proceedings upon which the Tribunal is to take cognizance, but the position in law is also well settled that the foundation of the jurisdiction of a Tribunal created by the Statute is not dependent just upon the mode or the manner prescribed for the presentation of the report or the complaint, and any irregularity in that behalf is not treated to be fatal so as to invalidate the proceedings before the Tribunal or the order passed thereon, if the Tribunal otherwise is properly seized of the case. The Code of Criminal Procedure has also prescribed particular mode under section 173 in which police-report is to be submitted upon which cognizance is to be taken by the Court. H. T. Raymond, J., after reviewing the case law on tire subject held, in the case reported as Manu v. The State (P L D 1964 Kar, 34) that omission by a Police Officer to comply fully with the provisions of section 173, Cr. P. C. does not affect the validity of the cognizance taken by the Court, or the proceedings of the case.
In the case of Abdul Sabur v. The District Magistrate and others (P L D 1969 Pesh. 167), a Division Bench of Peshawar Seat of West Pakistan High Court held that non-observance of procedure prescribed under sections 5 and 6 of the West Pakistan Control of Goondas Ordinance, 1959, does not vitiate the proceedings before the Tribunal. The relevant passage reads;
"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 enquiry. Reliance was placed on Mirza Mahmood Beg v. The Commissioner, Multan Division, Multan and others. At page 707 it was observed :---
The irregularity, if any, in 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 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."
In the case of Abdul Samad alias Dadda v. Khan Iqbal Ahmed Lodhi (P L D 1972 Lah. 41) it was held, that an order of acquittal passed by a Criminal Court in favour of an accused person can be used against him for making an order under section 13 of the Ordinance in certain cases for the reasons that;
"the proceedings under section 13 of the Ordinance do not amount to a criminal trial for any offence, and therefore stricto senso they constitute double jeopardy in the accepted sense of the word. To that extent therefore it is clear that even though a person may have been acquitted of an offence, the mere fact of that acquittal would not bar proceedings under section 13 of the Ordinance. It has to be remembered, as observed in Ch. Ghulam Muhammad v. The State and others, that the said section does not seek to punish any individual acts, but comes into play only if a person habitually indulges in disorderly activities as mentioned in the section. It follows therefore that even though lie may have been acquitted in individual criminal cases yet his conduct may disclose a habitual pattern calling for action under the Ordinance. The acquittal may for instance be only a technical ground and not based on a finding that the person concerned never committed the acts alleged against him."
The question whether High Court should scrutinize the legality of the proceedings at the preliminary stage when Tribunal has just taken cognizance was examined in the case of Muzaffar Khan v. The State (P L D 1969 Lab. 445). It was held that High Court would exercise its constitutional jurisdiction only if the validity of law is challenged, or it is shown that the Tribunal has acted mala fidely, or that the proceedings are barred under some other law or that even if the prosecution allegation be accepted as true these do not establish the offence.
We may also refer to another case reported as Mst. Nusrat v. The District Tribunal Lahore and another (P L D 1969 Lab. 182) in which the argument presented before us on interpretation of section 8(2) was considered. It was observed;
"When the Tribunal orders detention of a person under section 8(2) instead of taking a bond, obviously it is for the reason that the Tribunal considers it necessary to keep him to detention. It may be for the purpose of ensuring his presence, as for instance in a case where there is likelihood of the person absconding. It may be for other reasons also. The action may be necessary with a view to ensuring that he does not commit any breach of peace on account of or for the reasons connected with the inquiry under the Ordinance. The prevention of breach of peace is different from ensuring good behaviour and this is manifest from the provisions contained in sections 106 and 107 of the Code of Criminal Procedure, which deal with the action for maintaining peace and sections 108 and 110 which are for keeping good behaviour. "Section 107, Cr. P. C. is intended to prevent local clashes between persons over property or women or other similar objects of disagreement, while section 110 contemplates the keeping under control of persons who are criminal by habit, and who are likely to take their habits with them wherever they go.
There may yet be another case where the Tribunal has reasons to be satisfied that the person may, if he is not detained tamper with the witnesses during the inquiry." '
So far as the allegations of mala fides are concerned it would be sufficient to mention that no allegation has been made against the Tribunal itself. In this behalf we may also reproduce the following passage from the case of Muzaffar Khan v. The State, referred to earlier;
"The allegations of an ulterior motive on the part of the police or other persons, if substantiated can be of assistance to the Tribunal for forming its opinion as to the truth or falsity of the allegations. The allegations by themselves, even if true do not render the proceedings as without lawful authority. If upon the examination of the case it turns out to be one where the Police Officer has acted without due care or caution or where the proceedings manifestly appear to be for purposes other than those that have rational connections with the object for which the proceedings under the Ordinance have been sanctioned by law, the same can be evidenced as mala fide by the Tribunal and it can discharge the person complained against."
It would thus be noticed that the contentions raised in this case have -not found favour in the reported cases cited.
There is also no warrant in law for the proposition advanced by the learned counsel for the petitioner that for passing an order of detention under section 8(2), the Tribunal is required to hold an inquiry by examining witnesses because by the clear and unambiguous language, the Legislature has empowered the Tribunal, under this provision of law, just for they reasons to be recorded by it, to order detention of the person complained against, instead of calling upon him to furnish a bond for appearance. If the interpretation sought to be placed by the learned counsel is accepted, certain extra words have to be introduced to the effect of making an inquiry a pre-requisite condition for making an order of detention-a sort of embargo would have to be placed on the Tribunal for which there is no justification) .at all.
For the above reasons, we find no substance in this petition. It is accordingly dismissed in limine.
S. Q. Petition dismissed
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