Find a Lawyer

Criminal Revision Application No.29 of 1983, decided on 21st July, 1987.

---Ss.439 & 561 A--Sind Crimes Control Act (VI of 1975), Ss.4(b) & 16--Police complaint--Necessary particulars missing in complaint- Effect--Whether cognizance can be taken on such complaint--Police filing complaint against accused--Accused pleading guilty Accused failing to furnish sureties, remanded to jail for undergoing imprisonment--Police complaints lacking particulars of alleged acts, dates time and places when and where acts committed Taking cognizance on such complaints, held, was without lawful authority, hence framing of charge and pleading guilty by accused was of no consequence--Proceedings and orders passed thereon, quashed in circumstances.

The State v. Hassan P L D 1976 Kar.928 and Muhammad Siddique v. S.D.M./Tribunal P L D 1981 Kar.685 ref.

Madad Ali Shah on behalf of Ghulam Nabi Abro for Applicant.

Syed Sarfraz Ahmed, Asstt. A.-G. for the State.

Date of hearing: 21st July, 1987.

By this common judgment I intend to dispose of the above five applications under section 561-A, Cr.P.C. for quashment of the proceedings initiated before the SDM and Tribunal Mehar under the Sind Crimes Control Act, 1975, (hereinafter referred to as the Act) against the five petitioners. All of them were arrested on 2-2-1983 by the police and were produced before the learned SDM and Tribunal on 9-2-1983 by the police alongwith the complaint under section 4 (b) of the Act. The learned SDM by his order dated 15-2-1983 directed each of the petitioners to furnish a bond with two sureties of Zamindari class each solvent in the sum of Rs.10,000 and P.R, Bond in the like amount to maintain good behaviour for a period of 12 months. At the bottom of the above order another order was passed under section l6 of the Act which reads as follows:--

"Order a/s 16-SCC Act 1975.

The above order has been read over and explained to the above named respondent. He is not in a position to furnish' the required sureties and for such default he is remanded to jail custody to undergo R.I. for the said period of 12 (twelve) months or till he furnishes the required sureties.

Dated this the 15th day of February, 1983.

Sub-Divisional Magistrate, Mehar".

2. All the petitioners filed appeals against the above orders but the same were dismissed by orders of even date namely 21-3-1983, inter alia, on the ground that there was nothing wrong with the orders under appeal as the petitioners had pleaded guilty. The petitioners have, therefore, filed this revision.

3. In support of the above petitions, Mr. Madad Ali Shah holding brief for Mr. Ghulam kabi Abro, learned counsel for the petitioners has urged as follows:

(i) That there is no provision in the Act providing pleading of guilty or non-guilty as under the act it is the statutory obligation to hold an enquiry as to the truthfulness of the allegations contained in the police report.

(ii) That the plea of guilty cannot absolve the Tribunal from discharging above statutory obligation.

(iii) That since the complaints contained vague allegations and were lacking material particulars as to the time and place of the alleged acts as required under section 6 of the Act the cognizance was without jurisdiction.

Syed Sarfraz Ahmad learned Assistant Advocate-General appearing for the State has submitted that since the police complaints lacked material particulars in terms of section 6 of the Act, the taking of cognizance was without jurisdiction and that there is no provision under the Act entitling the Tribunal to ask a person proceeded with under the Act to plead guilty or not to plead guilty and that it was the statutory obligation of the Tribunal to hold enquiry as to the correctness of the allegations.

4. Mr. Madad Ali Shah, learned counsel has referred to the case of the State v. Hassad reported in P L D 1976 Karachi 928 in which a learned Single Judge while hearing a reference against an order passed under section 110 read with section 112, Cr.P.C. held that even the consent on the part of the person proceeded against to give security would not dispense with the necessity of proper enquiry and recording of evidence in proof of the allegations. The learned Judge also referred to the case law on the above point and pointed out that there is unanimity amongst the High Courts except the two High Courts namely, Allahabad and Oudh. on the point that consent or readiness of furnishing security cannot be considered as a plea of guilty to the charge contained in the order under section 112, Cr.P.C. and the Court is not justified in binding down the person on the strength of such consent alone. He also pointed out that there is unanimity as far as the decisions of Sind, Lahore and Peshawar High Courts are concerned that consent to give security cannot dispense with the necessity of a proper enquiry and the order must be based on relevant and admissible evidence.

The above case is distinguishable inasmuch as in the above case the question was, whether the consent to furnish security would absolve the Court from holding enquiry in terms of section 110 read with section 112, Cr.P.C. The question of framing of charge and pleading of guilty to the said charge was not involved.

5. In my view, the basic question involved in the present applica tions are that if the police complaints were vague and were in violation of the provisions of the Act inasmuch as they lacked particulars as to the time, and places of the alleged acts, the cognizance by the learned Tribunal was not warranted under the law and, therefore, framing of the charge for asking for a plea of guilty or not guilty was in fact an exercise in futility.

Syed Sarfraz Ahmed, learned Assistant A.-G has candidly invited my attention to the case of Muhammad Siddique v. S.D.M./ Tribunal reported in P L D 1981 Karachi 685, in which Naimuddin, J. as he then was has referred to more or less all the cases decided by the Sind High Court and held that the initiation of proceeding on a complaint lacking particulars as to the alleged acts dates, time and places when and where the alleged acts were committed were without lawful authority. In the instant cases the learned Assistant A.-G has candidly stated, as pointed out hereinabove that the above police complaints were lacking the material particulars.

6. In this view of the matter, the learned Tribunal should not have taken cognizance on the basis of the said complaints and hence the alleged framing of the charge and the pleading of guilty by the petitioners are of no consequence.

The above applications are allowed and the proceedings and the orders passed therein and thereupon are quashed.

S.A./N-49/K Proceedings quashed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.