This revision application under section 22(2) of the Sind Crimes Control Act, 1975, to which I will refer as the Act, is directed against the order passed by the learned Additional Commissioner, Sukkur Division, on 25-2-1975, rejecting the application of the petitioner for quashment of the proceedings taken against him under the Act.
2. The circumstances in which this revision application has been filed, shortly stated, are that on 26-3-1976, the S. H. O., Tangwani Police Station in District Jacobabad, submitted a report against the petitioner under the Act to the Tribunal and S. D. M., Kandhkot. That report reads as follows :---- - "Proceeding No. 1 of 1976 of Police Station Tangwani under section 14 of the Sind Crimes Control Act, 1975.
(1) Sir, the accused above-named resides within the territorial jurisdiction of this Honourable Court.
(2) There is a number of general complaints against the accused. He is a notorious thief, Patharidar. He keeps armed with deadly weapons and thereby commits offences. He is nuisance to the general public and his remaining at large is hazardous.
(3) The following record is available at the police station against the said accused. It is therefore requested that warrants under Sind Crimes Control Act, 1975 may be issued against him, so that he may be arrested and produced before the Court in the interest of justice. The report is submitted accordingly.
Details of offences S. No. Crime No. & description of offences Suspected to be concerned. challaned.
(1) 62/74 under sections 379, 225, P. P. C. Suspected to be concerned.
(2) 63/74 under sections 379, 457, P. P. C.- do -
(3) Proceeding No. 27/75 under section 110, Cr. P. C. Stands proceeded.
List of witnesses as a proof
(1) Complaint.
(2) A. S. I. Ubedullah Khan of Police Station, Tangwani.
(Sd.) S. H. O., Tangwani P. S."
3. The learned Tribunal, Kandhkot, took cognizance of the case against the petitioner on the basis of that report and on 27-3-1976, ordered non--bailable warrant to be issued for the immediate arrest of the petitioner. The said warrant was executed upon the petitioner and he was produced before the learned Tribunal on 29-3-1976. On the same day, the learned Tribunal passed an order against the petitioner requiring him to show cause why he should not be bound down for a period of 3 years to maintain good behaviour. Pending the enquiry against him the petitioner was kept through--out in custody. On 12-4-1976 and 21-4-1976, the petitioner was not produced by the Jail authorities and also no witnesses were in attendance. On 23-4-1976, the statement of S. H. O., Tangwani Police Station, and A. S.1. Ubedullah were recorded by the learned Tribunal. On the same day, the Tribunal recorded the statement of the petitioner and passed an order against him directing him to execute a bond in the sum of Rs. 5,000 and also to furnish solvent surety in the like amount to maintain good behaviour for a period of 3 years. As the petitioner was unable to furnish the required bond and surety he was remanded to custody to undergo R. I. For 3 years or till such time as he was able to furnish the required surety.
4. Against the aforesaid order, the petitioner filed a revision application under section 22(I) of the Act, for the quashment of the proceedings against him. This application was presented in October, 1976, but the impugned order was passed on 25-2-1977, On the date that the said order was passed, the counsel fo rpetitioner was absent and the petitioner was in custody. In fact, he was throughout from the period that the non-bailable warrant was against him by the learned Tribunal on 27-3-1976. In the impugned; learned Additional Commissioner has not cared to discuss any of the pleas raised by the petitioner in his revision application but has simply observed that as the petitioner is prepared to furnish `Pakka' surety, he may furnish the same to the satisfaction of the Tribunal as provided by the Act.
5. As the case presented a number of features of considerable importance, which were likely to have far-reaching effect on other cases under the Act, I directed notice to issue to the learned Advocate-General. He was good enough to appear and assist the Court in compliance with the said notice. I have also heard Mr. Nooruddin Sarki, the learned counsel for the petitioner.
6. I am constrained to observe that there has been a serious perversion of procedure both before the learned Tribunal as well as the learned Additional Commissioner. In fact, the proceedings before them are in serious disregard and violation of the basic principles of the law and the norms of justice. The complaint by the police against the petitioner contains only vague, general and nebulous allegations. Furthermore, not only the complaint omits to mention under which clauses of section 14 of the Act the alleged activities of the petitioner fall but there is also no nexus between the allegations and the cases in which the petitioner is said to be involved. Three different cases are specified in the complaint in which the petitioner is said to be involved. In the first two of these, however, the petitioner is said merely to be suspected but it is not even mentioned who is the complainant in those cases and what is the nature of evidence or even suspicion against him.
Furthermore, it is not stated that these cases have been challaned. The only other case against the petitioner is one under section I10, Cr. P. C. That case also, at least at the time the complaint was filed, was proceeding and it is not known whether the petitioner was bound down under section 1?0, Cr. P. C. Or he was discharged. The mere fact that a person is suspected in some offence or offences or even that he was challaned in respect o certain offences would not be sufficient to bring his case within the Purview of section 14 of the Act which in my humble view appears to envisage much more tangible proof in support of the unsocial activities alleged against such person. The cognizance was thus wrongly taken by the Tribunal.
7. In the case of Wahid Bux v. State (1977 P Cr. L J 257), the complaint against the petitioner by the police was that he was a receiver of stolen property, frequently got drunk and intoxicated, generally behaved in disorderly fashion in public, was a habitual house-breaker, was in the habit of carrying unlicensed arms and finally he had no means of livelihood except for selling of stolen property. In support of these allegations instances of previous cases were cited. However, it was found that in 4 of the earlier cases the petitioner was not even challaned and the two fresh cases arose out of a single incident. A Division Bench of this Court took the view that the earlier cases could not be taken into consideration as the petitioner was not even challaned in those cases and following the decision in Muhammad Ishag v. Tribunal & A. D. M. (PLD 1975 Kar. 198), held that as the two fresh cases pertained to a single incident, action under the Act could not be taken against the petitioner as it was meant to apply to persons frequently or habitually committing certain unsocial acts. It accordingly quashed the proceedings against the petitioner.
8. In another case under section 14 of the Act, reported as Hussain Bax v. District Magistrate, Larkana (PLD 1978 Kar. 630), a complaint was filed by the police against the petitioner alleging therein that he was disorderly in public or behaved riotously in public by entering into affrays or otherwise disturbs public peace ; that he was in the habit of making livelihood, or extorting money or other property or receiving any concession or favour from any one by any form of intimidation or influence ; that he frequently trespassed upon or illegally takes possession of private property by show of force and retains such property by force and lastly that he was so desperate and dangerous as to render his being at large without security hazardous to the community. In support of these allegations, 5 instances were quoted relating to the registration of cases against the petitioner. Four of these cases were in respect of offences under sections 324, 326, 307 and 302 of the Pakistan Penal Code and under section 13(d) of the Arms Ordinance. The fifth case related to an incident where the detenu was found to be drunk and disorderly in public and was issuing threats in public to disturb the peace. It was observed by a Division Bench of this Court that the allegations of general nature contained in the complaint were almost verbatim reproduction of certain clauses of section 14 of the Act but there was no nexus between the allegations contained in the complaint against the petitioner and the scope of the said clauses. It was also observed that a single instance of riotous behaviour in public or carrying of an arm did not bring the petitioner within the ambit of section 14 of the Act which contemplated action only against persons habitually or frequently committing specified acts.
9. It may be pointed out that an 'essential requirement of the Act isthat a copy of the police report is to be sent to the person complained against with the summons or warrant issued against him.
The report is required, briefly to state,-
(i) the acts with which the person complained against is charged ;
(ii) the details of time and place of such acts ; and
(iii) general repute of person complained of or such other allegation made against him.
10. In the case of Abdul Hamid v. S. D. M., City & Tribunal (PLD 1977, Kar, 575), a Division Bench of this.
Court, while dealing with the issue of the nature of compliance of the provisions of the Act, observed :- "The said Act is a special Act which gives wide powers for the prevention of crimes. Since the said Act, though enacted for a laudable purpose, is a special Act which affects the liberty of citizens, its provisions prescribing the circumstances and the mode in which the proceedings thereunder are to be initiated and taken, and orders passed, would be deemed to be mandatory and have thus to be strictly followed."
11. Although under the Act the Tribunal is empowered to take cognizance of a case upon the twin requirements being met that the person complained against resides or the act complained against is alleged to have been committed within its jurisdiction, and a report in this behalf has been made to it, in writing, by a police officer not below the rank of Sub-Inspector, C the report must disclose the commission by the person complained against of a course of conduct which brings him within the mischief of one or the other clause of section 14. It is not enough for the report to merely repeat with certain variations the language of one or the other clauses of section 14 of the Act. As pointed out in Uris v. Tribunal and Sub-Divisional Magistrate, Kotri (PLD 1977 Kar. 506)
Tribunal cannot be said to have acted legally in taking cognizble there was no specific material before it and the only contents of the police report were a mere reproduction of the language used in some clauses of section 14 of the Act".
12. The serious defect from which the report against the petitioner suffers is that it does not give particulars of the acts complained against him and the details of time and place of such acts as required by section 6 of the Act. No doubt, the report does mention three cases in which the petitioner is alleged to have been involved. However as already indicated in two of these cases, the petitioner was merely suspected and it is not even known whether he was in fact challaned, and if so, with what results. So far as the third case is concerned, which was under section 110, Cr. P. C., that case also is stated to be pending and has not been concluded. In Noor Muhammad v. State (1975 P Cr. L J 1025), it was held that mere statement made by the S. H. O. In his report that the petitioner had the reputation of a notorious and hazardous criminal, without specifying instances of his being involved in any incident or breach of peace or acting in a desperate and dangerous manner mentioned in the report, and the mere citation in the report of five cases in which the petitioner was involved without indicating their result or stage, was not sufficient to bring the case of the petitioner under section 110, Cr. P. C. In my humble view, these observations apply with equal force to reports under the Act because such reports are required to contain particulars of the acts complained against the person concerned as also the details of the time and place of such acts.
The mere mention in the police report of the cases in which a person is involved has likewise not been considered to be a requirement of the law for the purposes of action under the West Pakistan Control of Goondas Ordinance, 1959. See Nizamiddin v. State (1976 P Cr. L J 650).
13. It was submitted by she learned Advocate-General that there was a distinction between taking of cognizance of a case under the Act and the furnishing of copy of a report to the person complained against and that the only requirements of the law for taking cognizance of a case under the Act by the Tribunal were that the person complained against was residing or the act complained of was committed within the jurisdiction of the Tribunal and that there was a report from a Police Officer, not below the rank of S. H. O., against the person concerned. The learned Advocate---General sought support for his contention from the decision in the case of Abdul Karim v. Tribunal and S. D. M. (PLD 1978 Kar. 496), but in my humble opinion that decision is of no assistance to the learned Advocate-General in regard to the point canvassed by him, as all that it decides is that unlike detention cases, if some of the acts complained of fall within the mischief of section 14 of the Act, action could be taken under the said section, even if some of the allegations against the person complained against either are not established or do not strictly fall within the purview of section 14. It is true that section 4 of the Act, which specifically deals with the taking of cognizance of cases by the Tribunal, does not specify the requirements of the report, but section 6 lays down the particulars which are to be contained in the report. The report referred to in section 6 of the Act is obviously the same report upon which cognizance alone can be taken by the Tribunal.
It thus seems clear that the report in order that the Tribunal may take cognizance thereupon, must contain the particulars specified in section 6 of the Act.
In Uris's case, to which I have already made reference, this point as well as the contention that the requirements of section 7 as to particulars was a mere matter of form and not substance were examined, and it was observed as follows :- "The Act places a duty on the Tribunal to supply a copy of the report to the person against whom the complaint is made. The person is not required to obtain such a copy, nor shall he have to pay for that. If this copy is to contain any particulars as specified in section of the Act, the same must already exist in the original. In such circumstances to imagine of a procedure or even possibility where the prosecution could supply particulars to a Tribunal after it has taken cognizance of a case, would be imagining a state of liaison between the two, which is not known in judicial proceedings."
14. The next patent error committed by the Tribunal in the instant case was that on receipt of the report from the S. H. O., it issued a non--bailable warrant against the petitioner without complying with the provisions of section 5 of the Act. The said section requires that ordinarily the Tribunal should issue a summons requiring the person complained against to appear. However, the Tribunal is empowered to issue a warrant for his arrest only if (i) it appears to the Tribunal upon the report of a Police Officer or upon other information that there is reason to apprehend the commission of the such act cannot be prevented otherwise than by the immediate arrest of such person, and (Iii) the substance of the report or information on the basis of which the warrant is issued is recorded by the Tribunal. In the instant case, no order complying with the aforesaid provisions has been passed by the learned Tribunal, who has simply passed a routine order in the diary directing the issuance of a non-bailable warrant against the respondent. It has neither recorded the reasons which raised the apprehensions in its mind about the probability of the petitioner committing the act complained of nor has it even so much as indicated that in its opinion the commission of such act cannot be prevented otherwise than by the immediate arrest of the petitioner. Moreover, the substance of the report or infor--mation, on the basis of which the warrant was issued against the petitioner, has not been recorded. In Abdul Hamid's case, to which I have already made a reference, I had occasion to consider this issue and observed as under :----- "There appears to us to be another violation of the provisions of the said Act. Section 5 of the said Act requires that before issuing a warrant against the person reported, the Tribunal shall record the substance of the report or information upon which the warrant is being issued. Such substance must relate to the offence or act which it is proposed to prevent through the issuance of the warrant. In the instant case, the learned Tribunal has failed to record the substance of the report or information by the police in his order directing the issuance of the warrant and has merely stated therein that there was reason to apprehend the commission of the act complained against, without mentioning that act or the allegations on the basis of which the warrant was being issued.
The order thus cannot be considered to be in compliance with the provisions of section 5 of the said Act."
15. A similar view as taken by me in Abdul Hamld's case was take.- ; another Bench of this Court in the case of Sirajuddin v. Tribun, S. D. M. (1977 P Cr. L J 724 ), wherein it was observed as follows :- "There appears to us to be another violation of the provisions Act. Section 5 of the Act requires that before issuing warrant against the person reported, the Tribunal shall record the substance of the report or information upon which the warrant is being issued. Such substance must relate to the offence or act which it is proposed to prevent through the issuance of the warrant. In the instant case there is nothing on record to indicate that the learned Tribunal recorded the substance of the report or information by the Police in his order directing the issue of warrant. The order thus could not be considered to be in compliance with the provisions of section 5 of the Act."
16. Coming next to the actual trial of the case before the learned Tribunal, I find that only the S. H. O.
And his A. S. I. Were examined. In fact, they alone had been cited as witnesses in the report of the S. H. O. Their evidence, which is practically identical, is a reproduction of the general allegations made in the original complaint. 1t is pertinent to note that in their evidence the police officers have made no mention of the three cases in which, according to the report, the petitioner was involved. No attempt was made by the learned Tribunal to elicit from the two police officers particulars of any specific instances having nexus with any of the clauses of section 14 of the Act or even the general allegations made in the report against the petitioner. The question of relevancy of general reputation and the type of evidence required in this behalf have been considered by this Court in a number of recent cases arising under section 110, Cr. P. C. The first of the cases to which I would refer is that of Khuda Bux v. State (PLD 1974 Note 85 at p. 133). In that case there was evidence of the S. H. O. And one other witness who gave testimony of a very general character without mentioning specific instances or else gave instances but with no proof. It was observed that the prosecution case amounted to saying that police believed the accused guilty of various offences but since details of those offences have not been given or else such cases had not been successfully prosecuted, such statement may indirectly mean that police had no evidence against the accused. In the circumstances, it was held that there was no justified ground for action under section 110 read with section 117(3), Cr. P. C.
17. In Mehar Khan v. State (1975 P Cr J 257), it was observed that though section 110, Cr. P. C., provides for admission of evidence of general reputation or conduct, but such evidence must be based on a sound foundation and ordinarily such evidence must be coupled with specific instances of overt acts committed by the person being proceeded with the particulars of the cases in which he was involved, challaned or convicted. It was further observed in that case that though a police officer was a competent witness to speak about the reputation of persons residing within his jurisdiction regarding whom he had occasion to make enquiries and observations in the course of official duties, yet such officers' evidence is to be strictly scrutinized in the light of circum-- stances forming the basis of his belief, and if the view of such police officer was not founded upon solid facts, it was unsafe to base an order upon such view alone.
18. In Mazan v. State (PLD 1975 Kar. 1035), my learned brother, Mushtak Ali Kazi, J., considered the connotation of the word "habit" and the proof required therefore for the purposes of section 110, Cr.
P. C. The learned Judge thus stated himself :- "Habit implies a tendency resulting from repetition of the same acts. It connotes depravity of character as evidenced by frequent repetition or commission of offences of theft, receiving of stolen property, etc. It does not mean mere inclination to commit such offences by temperament, but persistence capable of proof by evidence. Habit must be proved by aggregate instances and not on the basis of complicity in an isolated instance of theft or suspicion in respect of another such incident. Thus it is necessary that there should be evidence by large number of persons in respect of definite instances of theft, etc. In which the person complained against was involved."
19. The learned Judge, in the above case, further took the view that evidence of general repute, as a matter of practice, must come from respect--able persons living in the same locality, and that evidence of police officers or their subordinates in this b: half cannot be accepted unless they had special means and occasion to know the reputation of the person proceeded against. A similar view was expressed by the same learned Judge in State v. Hasad (P L JD 1976 Kar. 928), wherein he observed that mere oral word of a police officer giving his opinion that a particular person is a habitual thief or receiver of stolen property would be inadmissible as mere hearsay evidence.
20. No doubt, the petitioner, in his statement to the Tribunal, expressed his willingness to furnish securities, but such consent or willingness does not dispense with the necessity of the requirement of a proper inquiry as held in Hasad's case, referred to above.
21. Coming next to the proceedings before the learned Additional Commissioner, it may be mentioned that the memo of appeal to him raises a number of legal and other objections to the order passed against the petitioner. These were serious objections having great substance. It is a matter of concern that the learned Additional Commissioner failed to deal with any of these substantial .Questions and simply disposed of the appeal with the laconic order that the petitioner may furnish Pakka sureties to the satisfaction of the Tribunal. This brief order was passed presumably on the basis that the petitioner had contended before the learned Additional Commissioner that he was prepared to furnish Pakka sureties. This submis--sion of the petitioner, who was in custody and whose Lawyer was not in attendance, though he had engaged one, did not absolve the learned Additional Commissioner from his responsibility of examining the pleas raised in the revision application and recording his reasons for either accepting or rejecting the same. The learned Additional Commissioner should realise that he was acting in at least a quasi- judicial capacity and his order had a far-reaching effect on the liberty of a citizen. It was necessary for him under the circumstances to pass a speaking order which I regret to say he has failed to do.
22. For the foregoing reasons I am of opinion that the impugned orders of the learned Additional Commissioner and the learned Tribunal are patently erroneous. I would accordingly set aside both these orders. As the learned Tribunals and the First Appellate Authorities are continuing to make serious errors in the trial of cases and the passing of orders under the Act, despite number of decisions of the High Court pointing out the correct procedure, I direct that a copy of this judgment be sent to the Chief Secretary to the Government of Sind, with a request to send copies thereof to all the Tribunals and the First Revisional Authorities under the Act, for their information and guidance.
S. Q. Orderaccordingly.