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Before Naimuddin, J
MUHAMMAD SIDDIQUE‑‑‑Petitioner
versus
S. D. M. TRIBUNAL‑Respondent
Constitutional Petition No. D‑58 of 1979, decided on 4th November, 1980.
(a) Sind Crimea Control Act (IV of 1975 ‑
S. 5‑Non‑bailable warrants of arrest‑Tribunal not recording any reasons for issuance of warrant instead of summon‑Order of Tribunal, held, in disregard of provisions of S. 5 and liable to be quashed.
Abdul Hamid v. Sub‑Divisional Magistrate, City Tribunal, Hyderabad and another P L D 1977 Kar. 575; Wahid Bux v. The State 1977 P Cr. L J 257 and Aftab Alam alias Matoo v. Tribunal & A. C. & S. D. M. (Central), Kgrrchi and another P L D 1978 Kar. 305 ref.
(b) Sind Crimes Control Act (IV of 1975)‑
Ss. 5, 6 & 14‑Report of Police Officer neither specifying clause or clauses of S. 14 under which alleged acts fell nor stating date, time and place when and where alleged acts were committed Proceedings initiated on such report‑Held, in disregard of provisions of Ss. 5 & 6‑Mere fact that a person is suspected of some offence or offences or even that he was challaned in respect of certain offences Held, not suffcient to bring case within purview of S. 14 and proceed ings initiated declared to be without lawful authority and of no legal effect.
Uris v. Tribunal and Sub‑Divisional Magistrate, Kotri and 2 others P L D 1977 Kar. 506; Arsalla Khan v. District Magistrate (South) & Tribunal 1977 P Cr. L J 746; Shero alias Sher Muhammad v. State P L D 1978 Kar. 368; Aftab Alam alias Matoo v. Tribunal A. C. & S. D. M. (Central), Karachi P L D 1978 Kar. 305; Haji Ali Muhammad Solangi v. Tribunal S. D. M., Nazimabad and another P L D 1980 Kar. 267; Muhammad Siddique v. The State P L D 1979 Kar. 229; Aftab Alam v. Province of Sind P L D 1979 Kar. 645; Nizamuddin v. The State 1976 P Cr. L J 650; Noor Muhammad v. The State 1975 P Cr. L J 1025; Wahid Bux v. The State 1977 P Cr. L J 257; Muhammad Ishaque v. The Tribunal & S. D. M., Larkana P L D 1975 Kar. 195; Shah Nazar Khan v. Assistant Commissioner & S. D. M., Malir, Karachi and 3 others P L D 1977 Kar. 582 and Abdul Hamid v. Sub‑Divisional Magis trate and Tribunal, Hyderabad and another P L D 1977 Kar. 575 ref.
Jaffer Hussain v. Tribunal & S, D. M. City, Hyderabad P L D 1980 Kar. 195; Muhammad Siddlque v. The State P L D 1979 Kar. 229 and Haji All Muhammad Solangi v. Tribunal & S. D. M., Nazimabad, Karachi P L D 1980 Kar. 267 rel.
Ali Aslam Jafri for Nooruddin Sarki for Petitioner.
Agha Ghulam All for A.‑G. for Respondent. ‑
Date of hearing: 4th November, 1980.
On a report under section 14 of the Sind Crimes Control Act, 1975 (hereinafter called the Act), submitted by the S. H. O., Garhi Yasin, respondent No. 2, the S. D. M. Tribunal, Garhi Yasin, respondent No. 1 on 25‑2‑1979, that the petitioner is a habitual, thief and involved in gambling and has been convicted in gambling cases, respondent No. 1 issued non‑bailable warrant against the petitioner. The order reads as follows :‑‑‑
"Police report received today. Perusal of which provides sufficient grounds to issue coercive process against the accused. Hearing fixed on 10‑3‑1979: Issue NBW against the accused accompanied by a copy of police complaint."
The petitioner has questioned this order by this petition under Article 199 of the Constitution on the grounds :‑
"(1) that respondent No. 1 straightaway issued a non‑bailable warrant against the petitioner in disregard of the provisions of section 5 of the Act;
(2) that no cognizance could be taken against the petitioner on the report which does not give the particulars of alleged acts.
It is, therefore, necessary to refer to the provisions of sections 5 and 6 of the Act which are as follows :‑‑‑
"5. Summoning of persons.‑‑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 other wise than by the immediate arrest of such person, the Tribunal may, at any time issue a warrant for his arrest.
6. Delivery of copy of report.‑‑Every summons or warrant issued under section 5 shall be accompanied by a copy of the report and such copy shall be delivered by the Offcer serving or executing such summons or warrant to the person served with, or arrested under the same
Provided that the report shall briefly state ‑
(i) the acts with which the person complained against is charged;
(ii) the details of time and place of such acts;
(iii) general repute of person complained or such other allegation made against him."
It will be seen from the above‑quoted provisions of section 5 that ordinarily a Tribunal is required to issue summons. He can issue warrant only in that case whereupon the report of the Police Offcer or upon other information (the substance of which report or information has to be recorded by the Tribunal), it appears that there is reason to apprehend the commis sion of the act complained against and that such commission of the act cannot be prevented otherwise than by the immediate arrest of the person.
From the order quoted above it is obvious that the Tribunal has no recorded any reason for issuance of warrant instead of summons. In fact he has not applied his mind to these requirements of law. The Tribunal should have stated what was the act, commission of which could' not be prevented otherwise than by immediate arrest of the person. The cases wherein warrants instead of summons were issued in disregard of the provisions of section 5 of the Act or which did not fulfil the conditions laid down therein were quashed. Reference may be had to Abdul Humid v. Sub‑Divisional Magistrate, City & Tribunal, Hyderabad and another (P L D 1977 Kar. 575 ), Wahid Bux v. The State (1977 P Cr. L J 257) and Aftab Alam alias Matoo v. Tribunal and A C. & S. D. M: (Central), Karachi and another (P L D 1978 Kar. 305).
1n the first named case it was observed by Z. A. Channa, J. at page 578 of the report as follows
"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 therein that there was reason to apprehend the commission of the act com plained 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."
We are disturbed by the fact that in large number of cases which have come to our notice the provisions of section 5 of the Act were disregarded by the Tribunal in spite of clear pronouncements of this Court.
As regards the second ground, firstly the report does not specify under which clause or clauses of section 14 of the Act the alleged acts fall. Secondly, the report does not specify the date, time and place when an where the alleged acts were committed. There are only vague, general an indefinite allegations against the petitioner. It has been consistently emphasised that where the proceedings had been initiated on Police reports containing no particulars of time, place and of acts alleged nor were such reports accompanied by copies of F. I. R. or complaints by the residents of the locality, the proceedings were held to be initiated in disregard to the provisions contained in sections 5 and 6 of the Act. Reference may be had to Uris v. Tribunal and Sub‑Divisional Magistrate, Kotri and 2 others (1), Arsalla Khan v. District Magistrate South & Tribunal (2), Shero alias Sher Muhammad v. The State (3), Aftab Alan alias Matoo v. Tribunal A. C. & S. D. M. (Central), Karachi, Haji Ali Muhammad Solangi v. Tribunal S. D. M., Nazimabad and another (P L D 1980 Kar. 267 ‑ 1980 P Cr. L J 872) and Syed Abbas All Shah v. Sub Divisional Magistrate & tribunal, Tando Muhammad Khan and another (1979 P Cr. L J 303).
In the case of Aftab Alam it was held as follows :‑
(1) P L D 1977 Kar. 506 (2) 1977 P Cr. L J 746
(3) P L D 1978 Kar. 368
"All the cases registered against the petitioner are in respect of substantive offences allegedly committed by him. None of these reports were produced before us. In any case they call for sentence under the respective provisions of the Pakistan Penal Code, if the allegations contained therein are proved against the petitioner. In absence of any details as to the nature, time and place of the acts alleged against the petitioner it is difficult for us to hold that the case of the petitioner falls within any of the clauses of section 14 of the said Act."
A note may also be taken of the following observations of this Court in Muhammad Siddique v. The State (P L D 1979 Kar. 229)
"The mere fact that a person is suspected in some offence or offences or even that he was challaned in respect of certain offences would not be sufficient to bring his case within the purview of section 14 of the Act which is in . my humble view appears to envisage much more tangible proof of the unsocial activities alleged against such person."
We may also refer to Aftab Alam v. Province of Sind (P L D 1979 Kar. 645), wherein Ajmal Man, J. After reviewing a large number of reported cases deduced therefrom amongst others the following principle:
"The mere pendency of cases for the various criminal offences against a person will not make him a person reasonably believed to be a habitual offender or habitually addicted to crime or to be an aider or abetter of such crime."
In the case of Haji Ali Muhammad Solang which is a Division Bench Judgment Fakhruddin G. Ebrahim, J. relied on a decision given by Tufail Ali A. Rahman, C. J., in Nizamuddin v. The State wherein in relation to parallel section 5 of the West Pakistan Control of Goondas Ordinance, it was held that "a mere list.of cases in which the petitioner was challaned cannot be a substitute for statement of particulars to be given under section 5 of the said Ordinance. Section 6 of the Act like section 5 of the said Ordinance also provides for the same particulars". It may be recalled that in this case a list of 7 cases was relied upon in the report by the Police under section 14 of the Act.
We may further refer to the observations of Z. A. Channa, J. in Muhammad Siddique's case. The learned Judge after referring to Noor Muhammad v. The State (1975 P Cr L J 1025), wherein it was held that a mere statement made by the S. H. O., ,in his report that the petitioner had a reputation of notorious and hazardous criminal, without specifying instances of his being involved in any incident or breach of peace or acting in a desperate and dangerous manner mentioned in the report, and the mere citation in the report of five cases in which the petitioner was involved without indicating their result or stage, was not sufficient to bring the case of the petitioner under section 110, Cr. P. C. further observed that‑
"in my humble view these observations apply with equal force to reports under the Act because such reports are required to contain particulars of the acts complained against the person concerned as also the details of the time and place, of such acts. The mere mention in the Police report of the cases in which a person is involved has likewise not been considered to be a requirement of the law for the purposes,of action under the West Pakistan Control of Goondas Ordinance, 1959"‑(See Nizamuddin v. The State).
In the present case reliance was placed on 16 cases mentioned therein but no copies of the complaint of orders have been filed nor do they have been filed in this petition. In fact no .counter‑affidavit has been filed in this case. However, from the list of cases mentioned in the report it appears that out of 26 cases cited against the petitioner only in 4 of them he was allegedly convicted but all these cases are of the years 1941, 1945, 1946 and 1959. In cther cases except three, either he was discharged or not challaned and the same are of the years prior to 1969 and beginning with the years 1950. It is alleged that there are only three pending cases. But mere pendency of these cases, unless the conditions laid down in the relevant clause of section 14 are fulfilled, will have no effect. The mere fact that a person is suspected of some offences or even that be was challaned in respect of certain offences, would not be sufficient to bring his case within the purview of section 14 of the Act.
Reliance may be placed on Jaffer Hussain v. Tribunal & S. D. M. City, Hyderabad (P L D 1980 Kar. 195), Muhammad Siddique v. The State (P L D 1979 Kar. 229) and Haji Ali Muhammad Solangi v. Tribunal & S. D. M., Nazimabad, Karachi (P L D 1980 Kar. 267).
We also refer to Wahid Bux v. The State (1). In this case allegations were that the petitioner was receiver of stolen property; be frequently got drunk and intoxicated with Charas and wine, and generally behaved in disorderly manner in public; and that he was a habitual house‑breaker, and was in habit of carrying unlicensed arms and thereby harassing the public. It was further alleged that he had no means of livelihood except for selling stolen property,, In support of these allegations six instances of previous cases had been rented out of which one pertained to the year, 1958, one to the year, 1959, two were registered in the year, 1962, and the rest of the cases were fresh cases which, however, arose out of a single instance. Yet the orders were quashed placing reliance on Muhammad Ishaque v. The Tribunal & S. D. M., Larkana (2).
We may also refer to Shah Nazar Khan v. Assistant Commissioner & S. D. M., Malir, Karachi and 3 others (3). In this case it was observed at page 586 as follows :‑
"In our opinion these two instances the one relating to the recovery of 9 maunds of charas and 9 seers of opium on 27‑6‑1975 and recovery of 160 tolas charas (for which not time and place is mentioned) do not bring the case of the detenu within any him the clauses of section 14 of the said Act so as to brand hum as a habitual Smuggler of Narcotics in and out of Pakistan.
The wording of section 14 of the said Act clearly seems to suggest exclusion of the action under the said Act in respect of any solitary, unlawful or illegal act which has prudently been left to be dealt with under the ordinary law."
In Abdul Hamid v. Sub‑Divisional Magistrate and Tribunal, Hyderabad and another (4), it was held that initiation of proceeding by the Tribunal on the basis of the report which mentioned only two cases was without jurisdiction.
For the reasons given above we declare the proceedings initiated on the report under section 14 of the Act, to be without lawful authority and of no C legal effect. However, in the circumstances of the case we leave the parties to bear their own costs.
S. Q. Petition allowed.
(1)1977 P Cr. L J 257 (2) P L D 1975 Kar. 195
(3) P L b 1977 Kar. 582 (4) P L D 1977 Kar. 575
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