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Criminal Miscellaneous No. 264 of 1981, decided on 13th May, 1981.

‑‑ S. 561‑A read with Sind Crimes Control Act (1V of 1975), S. 8 (2) ‑-- Quashment of proceedings ‑ Provisions of S. 561‑A, Cr. P. C., held, applicable to" proceedings initiated under Sind Crimes Control Act.

Ghulam Ali Shah v. Commissioner, Hyderabad 1978 P Cr. L J 592 and Ghulam Ali Shah v. District Magistrate & Tribunal 1970 P Ct. L J 393 ref.

Mumtaz Ahmed Shah for Applicant.

Mohammad Ibrahim Memon Addl. A:‑G. for the State.

When this matter was placed before me I had in mind the provisions of the Provisional Constitution Order, 1981 and a doubt in regard to its maintainability on the ground that provisions under the Sind Crimes Control Act were not of punitive nature but of preventive nature and since the Provisional Constitution Order bars the grant of relief in cases of preventive detention, the question arose whether this Court has jurisdiction to entertain the application under section 561‑A, Cr. P. C. I had issued notice to the Advocate‑General 'and learned Additional A.‑G. had appeared on 5th May 1981 and pointed out that since these proceedings were not in the nature of petitions under the Provisional Constitution Order but under section 561‑A, Cr. P. C. the bar under the Provisional Constitution Order would not be attracted. The learned Additional, A G. however, pointed out that relief of quashment of proceedings under section 561‑A., Cr. P. C. cannot be granted by this Court in relation to proceedings under the Crime Control Act. I had then put the counsel of either side on notice to consider the said point.

Mr. Mumtaz Shah has placed before me a judgment of the learned Single Judge of this Court in the case of Shed Ghulam Ali Shah v. Commissioner, Hyderabad Division and others (1978 P Cr. L J 592). He contends that in the reported case relief by way of quashment of proceedings was granted. It is no doubt correct that the proceedings were quashed but I find that the question in regard to maintainability of application under section 561‑A, Cr. P. C. was neither raised nor consider ed by the learned Single Judge.

On the other hand Mr. Mohammad Ibrahim Memon has placed before me two cases. One out of these two cases is a judgment of the High Court of Sind & Baluchistan by a learned Single Judge which is 1970 P Cr. L J 393. In this case quashment of proceedings under the West Pakistan Control of Goondas Ordinance, 1959 was sought by aid of section 561‑A, Cr. P. C. The learned Judge examined the provisions of Control of' Goondas Ordinance and took notice of the fact that section 10 of the said Ordinance made express provision that the provisions of the Criminal Procedure Code were not applicable under this Ordinance. While the earlier Ordinance, viz. the Control of Goondas Ordinance provided that the provisions of Criminal Procedure Code would not apply to those proceedings. Subsection (2) of section 8 of the Sind Crime Control Act provides that an inquiry shall be made, as nearly as may be practicable, in the manner for conducting trials and recording evidence in summon cases under the Code of Criminal Procedure. The difference is that while the Goondas Ordinance excluded the application of Criminal Procedure Code, the Crimes Control Act attracts the provisions of Criminal Procedure Code. Prima facie, therefore, it appears that section 561‑A, Cr. P. C. is applicable. I would therefore, admit this petition and issue notice but leave the question in regard to maintainability of this application A open for arguments at the time of final hearing.

2. Mr. Muhammad Wrahim Memon, Additional A.‑G. has no objection to suspension of the order of detention. The applicant shall be enlarged on bail in the sum of Rs. 15,000 with P. R. and one surety in like amount to the satisfaction of the Sub‑Divisional Magistrate, Malir, Karachi,

Petition allowed.

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