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Criminal Miscellaneous Application No.906/Q of 1981, decided on 30^th November, 1983.

---S.561-A read with Sind Crimes Control Act (IV of 1975), Ss.5, 14--Quashing of proceedings--No specific instances cited in Police report to show petitioner a desperate and dangerous person and only a list of cases, pending decision attached-- Non-bailable warrants also issued against petitioner in first instance, in disregard of mandatory provision of S.5 of Act--Proceedings, held, viod ab initio and quashed, in circum stances.

Aftab Alam alias Matoo v. Tribunal and A.C. d S.D.M. (Central) Karachi P L D 1978 Kar. 305; Shero alias Sher Muhammad v. The State P L D 1978 Kar. 368; Hussain Bu; v. District Magistrate Larkana P L D 1978 Kar. 630; Awal Shah v. The State P L D 1978 Kar. 662 and Fazal Illahi v. Assistant Commissioner i S.D.M. Karachi P L D 1978 Kar. 730 ref.

Gulzaman Khan for Appellant.

A.A. Muhammadally, Asstt. A.-G. for the State.

Date of hearing: 30th November, 1983.

The applicant has filed this application for quashment of proceedings started against him by S.D.M. Bin Qasim on the report of S.H.O. Landi Colony Police Station dated 12th November, 1981 under section 14 of Sind Crimes Control Act, 1975 (hereinafter referred to as the said Act).

2. On receiving the complaint on 12th November, 1981 the learned S.D.M. straightaway issued non‑bailable warrant against the applicant for this production in the Court on 16th November, 1981. On the last mentioned date when the applicant was produced before the learned S.D.M. copies of the F.I.Rs. challans etc. were supplied to the applicant. Report under section 14 of the said Act shows that the applicant was desperate and riotous and was involved in 5 criminal cases which were pending in various Courts. The list of 5 cases has also been mentioned in the report under section 14 of the said Act. These cases are under sections 447, P.P.C. 307/34, P.P.C. 324/34, P.P.C. 13‑D, Arms Ordinance and the last case under section 1481149/452/427/504, P.P.C.

3. The prosecution have been challenged on the ground that the allega tions are vague and that no case for action under section 14 of the said Act had been made out. It is further alleged that non‑bailable warrant could not have been issued against the applicant without first complying with section 5 of the said Act.

4. Copies of the order‑sheets, dated 12th November, 1981 and 16th November, 1981 have been produced by the applicant alongwith his appli cation which indicate that non‑bailable warrant was issued in contravention of the provisions of section 5 of the said Act. This section provides that summons shall be issued in the first instance by the Magistrate. He could, however, issue non‑bailable warrant against oe person reported against, provided his case was covered by the proviso to section 5 of the said Act which runs as under:

"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."

From the order‑sheet it is clear on the face of it that the learned Magistrate did not give reasons for issuance of non‑bailable warrant in the first instance instead of summons.

5. The order dated 16th November, 1981 further shows that copies of F.I.Rs and challans etc. were not despatched to the applicant alongwith the non‑bailable warrant which was mandatory under section 5 of the said Act. These copies were supplied to him when he was produced in custody before the learned Magistrate on 16th November, 1981. The proceedings were, therefore, ab inito void.

6. In the report under section 14 of the said Act no specific instances have been cited to show that the applicant was desperate or dangerous. Only a list of five cases has been given from which no inference can be drawn about the character of the applicant till the cases are pending before the Courts concerned. None of cases is said to have been decided. Thus, there is force in the contention of the learned counsel for the applicant that the allegations mentioned in the report under section 14 of the said Act do not bring the applicant within the mischief of any of the provisions of the said Act. In support of this plea the learned counsel has relied on the following cases:‑

(1) Aftab Alim alias Matoo v. Tribunal and A.C. 8 S.D.M. (Central)

Karachi P L D 1978 Kar. 305;

(2) Shero alias Sher Muhammad v. The State P L D 1978 Kar. 368;

(3) Hussain Bux v. District Magistrate Larkana P L D 1978 Kar. 630;

(4) Awal Shah v. The State P L D 1978 Kar. 662; and

(5) Fazal Illahi v. Assistant Commissioner tt S.D.M. Karachi P L D

1978 Kar. 730.

Mr. A.A. Muhammadally the learned Asstt. A.‑G. has frankly conceded that the proceedings started by the learned S.D.M. under section. 14 of the said Act are ab initio void. I agree with the learned Asstt,,l A.‑G and hold that the proceedings started by the learned S.D.M. on the report of S.H.O. Landi Colony Police Station, Karachi are liable told be quashed for the reasons that mandatory provisions of sections 5 and 6 have not been complied with and further that from the report of the S. H. O. no case is made out for action against the applicant under the said Act. The application is, therefore, allowed and the proceedings are quashed.

Proceedings quashed

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