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Constitutional Petition No. 1386 of 1986, decided on 12th February, 1987.
‑‑‑Preamble & S. 14‑‑Criminal Procedure Code (V of 1898), S.110‑ Constitution of Pakistan (1973), Art. 199‑‑Sind Crimes Control Act (IV of 1975) an extraordinary law meant for hardened criminals and for preventing commission and repetition of crimes‑‑Detenue after having been proceeded against under Sind Crimes Control Act, 1975, prosecuted under S. 110, Cr.P.C. on similar grounds‑‑Complaint under S. 110, Cr.P.C. a ditto copy of complaint under S. 14, Sind Crimes Control Act‑‑No allegation that detenu was ever convicted for any substantive offence or even challaned‑‑No independent witness in case except Police Officers‑ Proceedings initiated under S. 110, Cr.P.C. and 'cognizance taken by Magistrate against detenu during pendency of proceedings under S.14, Sind Crimes Control Act. held, were unwarranted and hence quashed.
Hussain Shah Rashidi for Petitioner.
A.A. Muhammadally, A.A.-G. for Respondents.
Date of hearing: 9th February, 1987.
.‑‑This petition has been filed by the petitioner Mushtaq Ahmed for the release of his brother Shabbir Ahmed son of Sardar Ahmed Sultan Chandio, who has been detained under section 110, Cr.P.C. by order, dated 22nd December, 1986 purported to have been passed under section 112, Cr.P.C. After hearing learned counsel for the petitioner, Mr. Hussain Shah Rashidi, and the learned Additional Advocate‑General Mr. A.A. Muhammadally, we had accepted this petition on 9‑2‑1987 by a short order. The following are the reasons for the same.
1. That according to Mr. Hussain Shah Rashidi, the learned counsel for the petitioner the detenu was first detained for thirty days under M.P.O. 1960 by order, dated 22‑9‑1986, passed by the District Magistrate, Larkana and confined at Central Jail, Sukkur. The petitioner challenged the said detention on 2‑10‑1986 through Constitutional Petition No. D‑1046 of 1986 before this Court at Karachi, which was admitted to regular hearing but while petition was still pending the detention of detenue was extended for a further period of sixty days by the respondent No. 3 vide order, dated 16‑10‑1986. The petitioner, therefore, filed amended petition which came up for regular hearing before Division Bench of this Court on 11‑12‑1986, on that date, the learned Additional Advocate‑General, Mr. A.A. Muhammadally made a statement in Court that detention order of detenu had been revoked, in this situation the said petition was dismissed as withdrawn. However, the detenu was not released from the jail in spite of the above statement. That on the very same date i.e. 11‑ 12,1986, when the above statement was made the respondent No. 2, instituted proceedings against the detenu by way of a report under section 14 of Sind Crime Control Acts, 1975 in the Court of respondent No. 1 on the same charges which f formed basis of the detention of the detenu under M.P.O. The respondent No. 1 took cognizance on the basis of the above report, recorded statement of the respondent No. 2 and issued non‑bailable warrant against the detenu. The detenu challenged his detention under Sind Crime Control Acts, 1975 through Criminal Miscellaneous Application No. 1850 of 1986 before this Court, in which he was granted bail on 21‑12‑1986. The order of bail was served on the respondent No. 4 on 22‑12‑1986, but he did not release the detenu on that date. That on 23‑ 12‑ 1986 the petitioner again approached the respondent No. 4 for the release of the detenu but he was informed that detenu could not be released as he has been detained afresh under section 110, Cr.P.C. According to the learned counsel, the respondent No. 1 had passed the impugned order under section 112, Cr.P.C. on 22‑12‑1986. The report of respondent No. 2 and the grounds in this report were the same which were alleged against detenu for, his detention under M.P.O. and the Sind Crime Control Acts, 1975.
2. The contentions of Mr. Hussain Shah Rashidi learned Advocate fox the petitioner are:‑
(1) That the proceedings taken and order passed under section 112 Cr.P.C. were mala fide, illegal, and in violation of the provisions of Constitution.
(2) That the grounds of detention of detenu are the same which were under M.P.O., and the Sind Crimes Control Act.
(3) That after revocation of detention order under M.P.O. the detention of detenu under Sind Crimes Control Act, and then under section 110, Cr.P.C. was colourable one.
The examination of the above events and detention orders passed from 22‑9‑1986 clearly show that the detenu has been in continuous detention from 22‑9‑1986, and on his release from the detention, he was involved in another case, and fresh detention order was passed. In the present case the impugned order was passed when the detenu was already facing proceedings under section 14 of Sind Crime Control Act, 1975, and as soon as he was ordered to be released on bail by this Court in Criminal Miscellaneous Application No. 1850 of 1986. The perusal of complaint under section 14 Sind Crime Control Act, and under section 110, Cr.P.C. will show that the allegations are similar and even the witnesses cited are same.
The preamble of Sind Crimes Control Act, 1975 reads as under:‑
"Whereas it is expedient to provide effective machinery of law to prevent the Commission and repetition of crimes and to consolidate the law relating to anti‑social elements and disorderly persons in the Province of Sind."
The bare reading of the preamble of Sind Crimes Control Act, 1975 shows that it was an extraordinary law meant for preventing the Commission and repetition of crimes. It was in fact meant for hardened criminals. It was surprising that after taking proceedings under Sind Crimes Act, the detenu was again prosecuted under section 110, Cr.P.C. on similar grounds. The complaint under section 110, Cr.P.C. appears to be dito copy of complaint under section 14 of the Sind Crimes Control Act.' The nature of proceedings under Sind Crimes Control Act being preventive, the initiation of proceedings under section 110. Cr.P.C. (which again are preventive in nature) and taking of cognizance by the respondent No. 1 during the pendency of the said proceedings was unwarranted and unjustified. There is no allegation that the detenu was ever convicted for any substantive offence or even challened. The cases mentioned in the complaint are all preventive in nature. There is no independant witness in the case except Police Officers.
Mr. A.A. Muhammadally learned Additional Advocate‑General appearing for the respondents, in view of the above circumstances states that he cannot support the impugned order.
In view of the above discussion we hold that the proceedings initiated and cognizance taken by the respondent No. 1 against detenu Shabir Ahmed Chandio in Case No. 316 of 1986 under section 110, Cr.P.C. were unwarranted and are of no legal effect and are hereby quashed. The petitioner shall be set at liberty if not required in any other case.
S.A./M-84/K Petition accepted.
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