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Petition No. 775 of 1976, decided on 1st March 1977.

‑‑‑ S. 14‑Knife, possession of Possession of spring knife having blade of 5J' in contravention of provisions of S. 13(d) of West Pakistan Aims Ordinance, 1965‑‑‑Does not fall within any clause of S. 14 of Act IV of 1975‑No action under Act IV of 1975, held, could in circumstances be taken against petitioner‑West Pakistan Arms Ordi nance IXX of 1965), S. 1J(4).

‑‑ S. 14‑Possession of unlicensed knife‑Case against petitioner relating to a single instance of being found in posse3sion of a knife and not to his being in frequent possession of arms‑Action against petitioner under S. 14, held, riot warranted by law.

‑‑ S. 14‑Possession of unlicensed knife‑‑‑Petitioner allegedly found in possession of an unlicensed knife, criminally tried, and discharged‑Possession of unlicensed knife, in circumstances, held, could not be made basis for proceedings against him under Act IV of 1975.

‑‑‑‑ S. 14, cl. (iv)‑Obscene act‑Petitioner hauled up under S. 14 for having committed an offence under S. 294, P. P. C. in that he committed indecent acts, namely, kissing and embracing a woman in a public place‑Apart from fact of such incident having occurred more than 3 years back and petitioner having been discharged in such case, such fact, held, has no nexus with cl. (iv ) of S. 14‑Penal Code (XLV of 1860), S. 294.

‑‑ S. 14, cis. (iii) & (iv)‑Obscene act‑Act of kissing and embrac ing a woman‑Does not amount to any such act as is specified in clause (iii) or (iv) or in any other clause of S. 14.

‑‑ Interpretation of statutes‑Act IV of 1975‑A special Act affecting liberty of citizens‑Provisions of Act prescribing circumstances and mode of initiation of proceedings and passing of orders‑Deemed mandatory, having to be strictly followed.‑[Interpretation of statutes].

----Ss6 & 14‑Jurisdiction‑Petitioner prosecuted under S. 14 on ground of having been Involved in two cases, one relating to kissing and embracing a woman in a public place and other relating to possession of an unlicensed knife‑Initiation of proceedings by Tribunal on basis of a report mentioning only two such cases‑Held, violative of provisions of S. b and Tribunal assumed jurisdiction on a misreading of provisions of law.

Shabbir Ahmad v. Kabir‑un‑Nissa P L D 1975 S C 58 ref.

----‑Ss. 5 & 14‑Warrant, issuance of‑Tribunal failing to record sub stance of report or information laid by police in his order directing issuance of warrant and merely mentioning existence of reason to apprehend commission of act complained against without mention ing act or allegations on whose basis warrant was being issued‑Held, such order not in compliance with provisions of S. 5.

‑‑ S. 14 read with Ss. 21 & 22‑Alternative remedy‑Revision-- Appeal‑Writ--Contention that petitioner having alternative and efficacious remedy by way of appeal and revision to Commissioner under Ss. 21 & 22, instant petition could not lie‑Held, proceed ings before Tribunal on basis of police report being without jurisdic tion, mere fact of petitioner having right to approach Commissioner for redress could not be considered an alternative an.' efficacious remedy‑Case not falling within scope, of Act IV of 1975, petitioner could directly approach High Court in exercise of its constitutional jurisdiction ‑ Constitution of Pakistan (1973). Art. 199.‑[Appeal (criminal)‑Revision (criminal)‑‑‑Writ].

Ali Abbas v. Vishan Singh P L D 1967 S C 294 ref.

Muhammad Ibrahim Memon for Petitioner.

Advocate‑General for Respondent No. 1.

Date of hearing : 1st March 1977.

This constitutional petition is directed against the proceedings initiated against the petitioner, who is stated to be a contractor, under the Sind Crimes Control Act, 1975 (hereinafter referred to as the said Act), on the basis of a report, dated 4‑11‑1976, submitted against him by Inspector Allah Bux Jiskani, S. H. O. Latifabad, to the S. D. M. and the Tribunal, Hyderabad.

1. In the report submitted against the petitioner by the Police, it is alleged that the petitioner runs a well‑known prostitution den induces destitute women for prostitution, has no other source of livelihood excepting that of being a pimp, keeps unlicensed arms and has connections with thieves. It is stated in the petition that on the basis of the police report the learned Tribunal took cognizance of the matter and issued non‑bailable warrant against the petitioner which, however, has not so far been served upon him.

3. Section 6 of the said Act requires that the warrant against the person reported shall be accompanied by a copy of the report and such report shall briefly state‑

(i) the act with which the person complained against is charged ;

(ii) the details of time and place of such act ; and

(iii) general repute of person complained against or such other allegations made against him.

4. The report against the petitioner, besides containing allegations of a general nature, makes mention of two cases in which the petitioner is said to have been involved, Even if mention of these two cases can be said to fulfil the requirements of clauses (i) and (ii) of the proviso to section 6 of the said Act, namely stating the acts with which the person complained against is charged and the details and time of such acts, the further question which requires consideration is whether the two cases in which the petitioner is said to have been involved have any nexus ;with the allegations made against him or bring him within the scope of the said Act. Both the cases in which the petitioner is involved are said to have arisen out of an incident which occurred on 18‑5‑1973, at about 9‑00 p.m. near bungalow No. 227/8 of Unit No. 9. Latifabad, Hyderabad. The first of these cases was under section 294, ‑P. P. C. and the allegation against the petitioner in that case was that he eras committing indecent acts, namely kissing and embracing a woman, opposite the gate of the bungalow aforementioned. In the other case, the allegation against the petitioner was that at the time of his arrest in connection with the case under section 294, P. P. C. he was found in possession of a spring "knife, having a blade of 5 in contravention of the provisions of 'section 13 (d) of the West Pakistan Arms Ordinance, 1965. In both these cases the petitioner was discharged for want of attendance of the prosecution witnesses.

5. Now, so far as the case under the Arms Ordinance against the petitioner is concerned, it does not fall within any of the clauses of section 14 of the said Act, for the commission whereof action under the said Act can appropriately be taken Clause (xxx) of the said Act refers to frequent illegal possession or using of any bomb, sten‑gun, machine‑gun, automatic rifle, grenade, rocket, dynamite or other explosive, It does not refer to the possession or carrying of a knife Moreover, the case against the petitioner related to a single instance of being found in possession of a knife and not to his being in frequent possession of arms In any case, since the petitioner was discharged in that case, it could not be made the basis of proceedings; against him under the said Act.

6. So far as the case against the petitioner under section 294, P. P. C. is concerned, apart from the tact that it related to an incident which occurred more than 3 years back and further the petitioner in that case was discharged, it has, in our opinion no nexus with clause (iv) of section 14 of the said Act, which clause has been referred to in the report of the police, or in fact with any other clause of that section. The said clause (iv) reads as under

"(iv) frequents gambling dens or unlicensed places where illicit in toxicants are consumed or houses of prostitutes for immoral purposes."

Reference may also be made to clause (iii) of section 14 which specifies acts of running a brothel, being a tout of prostitutes or living wholly or partly on earning of prostitutes. The act of kissing and embracing a woman, for which the petitioner was tried, clearly does not amount to any such act as is specified in either of the aforesaid clauses or the other clauses of section 14 of the said Act. The said Act is a special Act which gives wide powers for tine prevention of crimes. Since the said Act, though enacted for a laudable purpose, is a special Act which affects the liberty of citizens. Its provisions prescribing the circumstances and the mode in which the proceedings there under are to be initiated and taken, and orders passed, would be deemed to be mandatory and have thus to be strictly followed. The initiation of proceedings by the Tribunal on the basis of a report, which mentioned only the above two cases, was thus in violation of the provisions of section 6 of the said Act, and in our opinion, jurisdiction was assumed on a clear misunderstanding and misreading of the provisions of law. In Shabbir Ahmed v. Kabir‑un‑nissa (PLD 1975SC58), it has been held;

"An assumption of jurisdiction upon a clear misreading of the provisions of the law is an error apparent on the face of the record and such an error does furnish a ground for interference in the writ jurisdiction."

7. There appears to us to be another violation of the provisions of the said Act. Section 5 of the said Act requires that before issuing a warrant against the person reported, the Tribunal shall record the substance of the report or information upon which the warrant is being issued. Such substance must relate to the offence or act which it is proposed to prevent through the issuance of the warrant. In the instant case, the learned Tribunal has failed to record the substance of the report or information by the police in his order directing the issuance of the warrant and has merely stated there in hat there was reason to apprehend the commission of the act complained against, without mentioning that act or the allegations on the basis of which the warrant was being issued The order thus cannot be considered to be in compliance with the provisions of section 5 of the said Act.

8. The learned Advocate‑General, while not disputing the fact that the two cases mentioned in the report of the police against the petitioner, did not have nexus with the provisions of clause (iv) of section 14 or in fact with any other clause of the said section, contended that the petitioner had an alternative and efficacious remedy by way of appeal and revision under sections 21 and 22 of the said Act to the Commissioner. Since, in our opinion, the proceedings before the learned Tribunal on the basis of the police report are without jurisdiction, the mere fact that the petitioner could approach the Commissioner for redress would not be considered an alternative and efficacious remedy. If the case of the petitioner does not fall within the scope of the said Act, he need not invoke the appellate or revisional jurisdiction of the Commissioner, and could under the circumstances directly approach the High Court in the exercise of its constitutional jurisdiction.

8. In the case of Ali Abbas v. Vishan Singh (PLD1967SC294), Corneliua, C. 3. observed as under;----‑

"There is a perversion of procedure apparent on the face of the record, and it is in our view idle to suggest that against such a denial of rights, the proper remedy for the appellant to adopt was to move the Custodian for review or revision. There had been in the relevant respect, an excess of jurisdiction, and the affected party could not be penalised for not throwing themselves again on the mercy of the authorities who were responsible for such excess. The proper and indeed the only authority which possessed power to correct the legal wrong thus done was the High Court acting in its jurisdiction under Article 98 of the Constitution."

9. Since there has been, in the instant case, a violation of the provisions of sections a and 6 of the said Act and an assumption of jurisdiction upon a clear misreading or non‑compliance of the provision of law, we hold that the proceedings taken against the petitioner are without jurisdiction and lawful authority. We accordingly quash those proceedings and would direct the recall of the non‑bailable warrant issued against the petitioner.

S. A. H. Proceedings quashed.

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