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Criminal Miscellaneous Application No.1057 of 1983, decided on 20th November, 1985.

--S.561-A--Sind Crimes Control Act (IV of 1975), Ss.5, 6 & 14--Quashing of proceedings--Tribunal instead of issuing summons to applicant in the first instant issuing non-bailable warrants against petitioner--Report of S.H.O. whereupon Tribunal took cognizance for taking proceedings not making mention that there was any wrongful act by applicant which had necessitated issuance of non-bailable warrants--Copy of police report, whereupon action was taken not ordered to be delivered to petitioner at time of execution of non-bailable warrants--Provisions of Ss.5 & 6 riot complied with while embarking upon taking proceedings against petitioner--Order calling upon petitioner to execute bond with sureties was harsh apparently passed without any material and justification---Proceedings quashed in circumstances.

Muhammad Ahmed v. Tribunal/SDM, City Hyderabad P L D 1985 Kar.187 eel.

Rasheeduddin Ahmed Khan for Petitioner.

Nemo for the State.

Date of hearing: 20th November, 1985.

By this application under section 561-A, Criminal Procedure Code, the applicant Babar Ali seeks quashment of proceedings taken against him under section 14 of Sind Crimes Control Act 1975 before Assistant Commissioner /SD M Bin Qasim, Karachi by S.H.O. Korangi, Karachi. It is alleged in the report, made against him that he was in the habit of making his livelihood by exporting money and he did not have ostensible means of subsistence and was in habit of committing robberies was so bully and desperate and dangerous that his being at large without security was hazardous to the general public. This report was made on 22-8-1983. The learned SDM passed the following order on the report on 23-10-1983.

"Challan report a/s 14 Sind Crimes Control Act is received today. Register the enquiry and issue N . B. W. against the respondent Babar Ali for 27-10-1983."

The applicant was produced before the learned S.D.M. in custody on 27-10-1983, where the following order was made: -

"Opponent above named has been produced in custody in execution of the N.B.W. issued by this Tribunal. According to the police report, it is alleged that the opponent is a habitual offender and the instances shown in the police report clearly indicate that he is alleged to have committed offences, frequently. As such it is expedient that sufficient safeguard and immediate measures are necessary for the prevention of the commission of the alleged acts. I, therefore, direct the opponent Babar Ali son of Syed Jaffar Ali to execute a bond for good behaviour in the amount of Rss:25,000/- with two solvent sureties of the same area in the like amount who may be in a position to control the activities of the opponent. The opponent shall be released on execution of the Bond and furnishing the requisite surety, as aforesaid, in default he shall be remanded to jail custody till the execution of such bond with two sureties till the conclusion of the enquiry."

Simultaneously, the SDM passed another order on the same date which reads as under: -

Respondent is brought by the Police under arrest. Separate order is passed. Respondent is asked to give two solvent sureties each in the sum of Rs.25,000/- with PR in the like amount in default remanded to J.C. till 8-11-83. The sureties should be of the same locality where opponent Babar Ali resides. Issue summons to PWs. Respondent has provided the copy of all the documents and police papers.

The learned counsel for the applicant has urged that the allegations levelled against the applicant are vague as .no specific instances of his criminal activities have been mentioned. According to him, the cases referred to in the list annexed with report regarding involvement of the applicant were then pending except one case in which he had been convicted of an offence punishable under sections 395 and 398, PPC. He has contended that initial order of Magistrate dated 23-10-1983, whereby he issued Non-bailable warrants against the applicant, was in violation of the provisions of section 5 of Sind Crimes Control Act, 1975. He has further contended that in riving effect to the aforesaid order dated 23-10-1983 compliance of the provisions of section 6 of the said Sind Crimes Control Act was not made as no copy of the report of the S.H.O. was furnished to the applicant. He has placed reliance on a case Mehmood Ahmed Mohammad Ahmed v. Tribunal/SDM. City Hyderabad, reported in P L D 1985 Kar. 187.

The proceedings under the Sind Crimes Control Act, 1975, (hereinafter mentioned as the Act) can be taken by the Tribunal constituted under section 3 of the Act on a report made by a police officer not below the rank of a Sub-Inspector as provided under section 4 of the Act.

It is laid down in section 5 of the Act that the Tribunal, on receipt of the report, 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; and if it appears to such Tribunal, upon the report of a police officer or upon other information that there is reason to apprehend 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 issue a warrant for his arrest. It is laid down in section 6 of the Act that 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 Officer serving or executing such summons or warrant to the person served with or arrested under the same. The learned Magistrate Tribunal, instead of issuing summons to the applicant in the first instance, issued Non-Bailable Warrant against him vide order dated 23-10-1983 reproduced above. The report of the S.H.O. dated 22--1G-1983 whereupon the learned SDM/Tribunal took cognizance for taking proceedings did not make mention that there was any apprehension of the commission of any wrongful act by the applicant as to have necessitated issuance of Non-Bailable Warrant. The record does not bear out that a copy of the police report, whereupon the action was taken, was ordered to be delivered to the applicant at the time of execution of Non-Bailable Warrant. Obviously the learned SDM Tribunal did not comply with the provisions of sections 5 and 6 of the Act while embarking upon taking proceedings against the applicant. It further appears that learned SDM/Tribunal even passed an order dated 27-10-1983, reproduced above, calling upon the applicant to execute bond in the sum of Rs.25,000/- with two solvent sureties in the like amount who would be in a position to control his activities till conclusion of the inquiry. Such harsh order seems to have been passed without any material placed before the learned Tribunal that there was justification for passing such an order. The events mentioned above bear out that the proceedings taken against the applicant are in violation of law and amount to the abuse of the process of the Court. Similar cases were dealt with in the past as highlighted in the judgment of Mehmood Ahmed (Mohammad Ahmad) v. Tribunal SDM City Hyderabad P L D 1985 Kar. 187 relied upon by the learned counsel for the applicant and the proceedings were quashed.

For reasons recorded above, the proceedings of the case No.199/83 under the Sind Crimes Control Act, 1975 initiated against the applicant are hereby quashed.

M.A.K./B-33/K Proceedings quashed.

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