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Criminal Revision No. 15 of 1978, decided on 27th September, 1978.

--‑‑‑‑ S. 5 read with S. 14‑Preventive detention‑Normal process to be issued‑‑Summons and not a non‑bailable warrant‑Action of issue of non‑bailable warrant in first instance‑Not meant to be a routine act of Tribunal‑‑Warrant of arrest, issuance of‑Conditional upon fulfilment of certain conditions‑Tribunal before issuing warrant of arrest to be satisfied as to acts of accused being not preventable otherwise than by immediate arrest through coercive process of warrant‑Such requirements being not fulfilled warrant issued, held, illegal.‑[Preventive detention].

It is inherent in the language used in section 5 of the Sind Crimes Control Act, 1975 that the Tribunal is to apply its mind to the question whether the acts which are complained against the person to be proceeded against cannot be prevented otherwise than by his immediate arrest through the coercive process of a warrant. The normal process that is to be issued in such cases is. the summons, and not a non‑bailable warrant, and the action of the issue of a non‑bailable warrant in the first instance is not meant to be a routine act of the Tribunal on receipt of a com plaint under the provisions of the Sind Crimes Control Act, 1975. It is to be noticed that the Legislature has granted the power of issue of warrant of arrest against the person proceeded against on certain specific conditions, and unless these prerequisite conditions are fully satisfied and fulfilled, the punitive action would be totally unwarranted by the law. There is, therefore, no escape from the conclusion that the impugned order of the issue of non‑bailable warrant against the petitioner is in contravention of the specific provisions of law; and it is on that account an order without lawful authority.

Wahid Bux alias Wahidu v. The State and another 1977 P Cr. L J 257 ; Hakeem Moulvi Sirajuddin v. The Tribunal &. S.D.M., Larkana and another 1977 P Cr. L J 724 ; Abdul Hamid v. Sub‑Divisional Magistrate, City & Tribunal, Hyderabad and another P L D 1977 Kar. 575 and Aftab Alam alias Matoo v. Tribunal & A. C. & S. D. M. (Central), Karachi and another P L D 1978 Kar. 305 ref.

Kamaluddin for Petitioner.

Abbas H. Farooqi for the State.

Date of hearing : 27th September. 1978.

This Revision Application is directed against the order of the Com missioner, Hyderaban Division, whereby he refused to set aside the order of the Tribunal, Hyderabad, by which non‑bailable warrant was issued against the petitioner in proceedings initiated against him under section 4 read with section 14 of the Sind Crimes Control Act, 1975. These proceed ings commenced on a complaint filed by the Station House Officer, Market Police Station, Hyderabad, that the petitioner is a habitual offender and frequently indulges in the use of abusive language in public and his conduct is hazardous to public peace, etc. Along with the complaint, the Station House officer filed an application under section 5 of the Act, praying for the issue of non‑bailable warrant against the petitioner on the ground that "it is most likely that the opponent will repeat the commission of the same acts complained against him. On this application, the Tribunal passed the following order on the same day

It appears from the above application that there is reason to appre hend commission of the act complained against and such commission of the act cannot be prevented otherwise than by the immediate arrest of the accused. Issue N. B. W. against the accused. Hearing 4th January, 1977."

The petitioner's Appeal against this order failed, and it was on these facts and circumstances that he approached this Court for relief through this Revision Application.

Mr. Kamaluddin, learned counsel appearing in support of the Revision Application, submits that the. Tribunal seriously erred in law in issuing the coercive process of non‑bailable warrant against the petitioner in the very first instanee without complying with the requirements of the provisions of section 5 of the Act. In order to appreciate this contention, section 5 may be reproduced hereunder. It reads as follows

"5. On receipt of the report, the. Tribunal shall issue a summons requiring the person complained against to appear, or, when such person is in custody, a warrant directing the officer in whose custody he is, to produce him before it.

Provided that whenever it appears to such Tribunal, upon the report of a Police Officer or upon other information (the substance of which report or information shall be recorded by the Tribunal) that there is reason to apprehend the commission of the act complained against and that such commission of the act cannot be, prevented otherwise than by the immediate arrest of such person, the Tribunal may, at any time issue a warrant for his arrest."

The precise submission of the learned counsel is that application filed by the Station House does not even contain any material, or, information upon which the extreme coercive step of the issue of non‑bailable warrant was justified. In this behalf, it is further pleaded that the Tribunal also failed to record the substance of the report which is a requirement of law before a warrant can be issued. Mr. Kamaluddin further submits that even the instances mentioned in the complaint cannot form a valid basis on which proceedings under the Act can be initiated, and, in this connection, he submitted that out of the four instances mentioned in the complaint, the first case, i.e. F. 1. R. No. 19 of 1970 of the Market Police Station, Hyderabad, under section 324, P. P. C. resulted in petitioner's acqsittal and in the second case in which he was arrested on 6th August, 1970, the petitioner had pleaded guilty in order to save himself from pro longed trial of twenty‑six months and was convicted to a sentence, of pay ment of fine of Rs. 40.00 only. So far as the third case is concerned, which pertains to an offence under section 353/427/188, P. P. C. said to have been committed in November, 1974, the petitioner was honourably acquitted, and the only case that was pending against him at the time of the filing of the complaint before the Tribunal was the one of under sec tions 324/397/114/34, P. P. C. registered with the Market Police Station, Hyderabad. In this regard, learned counsel submitted that there was thus only a single instance which was made the basis of the proceedings under the Sind Crimes Control Act, 1975, and in view of the decision of this Court in Wahid Bux alias Wahidu v. The State and another (1977 P Cr. L J 257) and several other reported cases, the entire proceedings against the petitioner are totally unwarranted by law.

Mr. Abbas Hussain Farooqi, learned counsel appearing for the State, was not able to support the order of the Tribunal in view of the aforesaid position pointed out by the learned counsel for the petitioner.

The submissions made by the learned counsel in support of this Revision Application have great force. In Hakeem Moulvi Sirajuddin v. The Tribunal & S. D. M., Larkana and another (1977 P Cr. L J 724), it was held by this Court that section 5 of the Act requires that before issuing a warrant against the person reported against 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 warrant. This view was approved in 4bdul Hamid v. Sub‑Divisional Magistrate, City & Tribunal, Hyderabad and another (P L D 1977 Kar. 575) and also in Aftab Alam alias Matoo v. Tribunal & A. C. & S. D. M. (General), Karachi and another (P L D 1978 Kar. 30). It is, therefore, the requirement of law that the substance of the report or information is to be recorded by Tribunal and it is inherent in the language used in section 5 of the Act that the Tribunal is to apply its mind to the question whether the acts which area complained against the person to be proceeded against cannot be prevented otherwise than by his immediate arrest through the coercive process of a warrant. The normal process that is to be issued in such cases is the summons, and not a non‑bailable warrant, and the action of the issue of a non‑bailable warrant in the first instance is not meant to be a routine act of the Tribunal on receipt of a complaint under the provisions of the Sind Crimes Control Act, 197'5. ' It is to be noticed that the Legislature has granted the power of issue of warrant of arrest against the person proceeded against on certain specific conditions, and unless these prerequisite condi tions are fully satisfied and fulfilled, the punitive action would be totally un warranted by the law. There is, therefore, no escape from the conclusion that the impugned order of the issue of the non‑bailable warrant against the petitioner is in contravention of the specific provisions of law, and it is on .t account an order without lawful authority.

However, there is no valid justification to quash the complaint filed 1st the petitioner under sections 4,114 of the. Act, as it is open to the petitioner to take up any pleas in defence before the Tribunal, including those that have been raised in this Revision Application.

The petitioner shall now appear before the Tribunal on the date of hearing fixed in this behalf, and I wish to make it clear, although the clarification is hardly necessary, that his failure to attend on the dates of hearing on any other ground under the law would fully authorise the Tribunal to issue coercive process against him.

This Revision Application is disposed of accordingly.

Order accordingly

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