1. This Constitutional Petition is directed against the proceedings under section 14 of the Sind Crimes Control Act, 1975 (hereinafter referred to as the Act) initiated on the basis of report dated 12-1-1977 made by S. H. O. Baghdadi Police Station against the petitioner who is stated to be doing business as a fisherman. The petitioner is also directed against all the subsequent orders finally culminating in the order dated 8th December, 1980 of the District Magistrate and Tribunal (South) Karachi under which the petitioner was ordered to furnish two sureties of Rs. 5,000 to keep good behaviour for a period of two years failing which he has to remain in Jail custody till he furnishes the sureties or till the period of the bond expires.
2. The facts of the case leading to the filing of the petition are as under :- On 12-1-1977 S. H. O. Baghdadi, Police Station, Karachi filed report in the Court of District Magistrate and Tribunal (South) Karachi which reads as under :- "In the Court of District Magistrate and Tribunal Karachi Case No. 3/77 Dated 12-1-1977.
3. SectionClauses (II) (X) (XX) (XXXIV) of S. 14, Sind Crimes Control Act, 1975.
4. Name of Complainant :S. I. Saleh Muhammad Khan, S. H. O. Baghdadi, Karachi.
5. Name of Respondent Muhammad Siddique son of Usman resident of House in Gali No. 10,Kara Bai Karimji Road, near Cafe Adam, Karachi.
6. It is submitted hint respondent Muhammad Siddique son of Usman resident of House in Gali No. 10, Kara Bai Karimji Road, near Cafe Adam, Karachi is residing within the jurisdiction of this Police Station. He is very desperate and active criminal. He is not rious pick-pocket, thief and also indulges in charas, interferes with the discipline and performance of Govern--ment duty and having conviction and committing cognizable offences and also enjoys bad reputation in the locality. Due to his nefarious activities the life and property of the general public is unsafe. The details of criminal instances committed by the respondent up til now is as under S. No.Case No. And sectionCourt No.Summary Order 1.322/72 under S. 307/333, P. P. C.SessionPending trial Court No. 3 2.323/72 under S. 13-D,DoDo Arms Ord., P. S. Baghdadi.
7. 3.41/73 under S. 43 (3), ExciseA. C. M.Sentenced till rising Act, P. S. Baghdadi No. 23of the Court and fine of Rs. 50 in default undergo one month R. I. on 28-4..1973.
8. 4.362/75 under S. 324, P. P. C.A. C. No. 13 P. S. BaghdadiSouth.
9. 5.363/76 under S. 382/34,DoPending trial P. P. C., P. S. Baghdadi 6.364/76 under S. 382/34, P. P. C.A. C. M,Pending trial No. 13 South The . Respondent enjoys bad reputation in the locality committing cognizable offences. He is nefarious and hazardous person. He indulges pick-pocketing, charas and theft cases. He is very desperate person and nuisance for the general public. Due to which the life and property of the general public is unsafe.
10. The respondent is a very cunning man ; it is therefore, requested that people of the vicinity may kindly, be saved from his ruthless clutches.
11. (Sd.) Saleh Muhammad Khan, S. I. S. H. O. Baghdadi, P. S. Karachi." 12-1-1977 It is the case of the petitioner that he had a dispute with one Haji Abdullah who wanted him to vacate the house which is in his possession and on his refusal to comply Haji Abdullah had instigated filing of several false cases against him. It is the case of the petitioner that the proceedings against him were started by the S. H. O. Baghdadi on the instigation of aforesaid Haji Abdullah.
12. On 12-1-1977 the S. H. O., Baghdadi in his report had requested that non-bailable warrants be issued against the petitioner. The Tribunal had ordered the issue of non-bailable warrants against him on 16-5-1977. He was kept under detention and Commissioner, who was approached, after the period of first detention was over, ordered his further detention on 23-9-1977 which order expired on 22- 10-1977. After that on 23-10-1977 the Tribunal again passed an order asking the detenu petitioner to furnish surety and execute personal bond. Finally, after holding the enquiry, the Tribunal passed order dated 8th December, 1980 asking the detenu to furnish two sureties in the sum of Rs. 5,000 each for keeping good behaviour for a period of two years failing which he would remain in jail till the period expired.
13. I have heard Mr. S. Nasiruddin, the learned counsel for the petitioner and Mr. M. I. Memon, the learned A. A: G. On behalf of the petitioner the following contentions have been raised,.
(1) That the report/complaint under section 4/14 of the- Act contains vague and general allegations to which the instances/acts complained against cited numbering six have no nexus. -
(2) That the complaint did not mention any 4ct 'complained of which would fall within the 35- items of habitual action mentioned in section 14 of the Act.
(3) That there is contravention of the mandatory provisions of sections 4, 5, 6 and 8 of the Act.
(4) That the successive orders for binding down a person to furnish sureties are not envisaged by the Act, and the total period for which under section 14 a person can be required to furnish bond shall not exceed three years.
14. Before the above contentions are discussed, it may here be stated that Mr. M.
1. Memon, the learned A. A.-G. Raised a preliminary objection that this petition is not entertainable in exercise of discretionary jurisdiction under the Constitution as the petitioner, had alternate remedy by way of filing appeal against the impugned order under section 21 and revision under section 22 of the Act.
15. Mr. S. Nasiruddin, the learned counsel for the petitioner, has however relied on the decision of this Court in, Abdul Hamid v. Sub-Divisional Magistrate City and Tribunal, Hyderabad and another (PLD 1977 Kar. 575,in which it was inter alia held that the contention that the petitioner had alternative and efficacious remedy by way of appeal and revision to Commissioner under sections 21 and 22 was not sound as the case did not fall within the scope of Act VI of 1975, and the petitioner could approach the High Court in exercise of constitutional jurisdiction. The learned A. A.-G. On the other hand, has pointed out that in the case referrer! To, a final order requiring furnishing of sureties had not yet been passed, however, in view of the observations already referred to, by the Division Bench which are in respect of the alternate remedy by way of appeal anti revision, the contention of the learned A. A.-G. Cannot be accepted. In Syed Ali Abbas and others v. Vishan Singh acrd others (PLD 1967 SC 294) in the case where the Authority had passed order in excess of jurisdiction, it was inter alia observed that "there had been in the relevant respect, an excess of jurisdiction, and the affected party could not be penalised for not throwing themselves again at the mercy of the Authorities who were responsible for such excess. The proper and indeed the only Authority which possessed power to correct the legal wrong thus done was the High Court acting in its jurisdiction under Article 98 of the Constitution." In view of the reasons given and the authorities quoted, the objection raised by the learned A. A.-G. Cannot be sustained.
16. A perusal of the report/complaint which has been reproduced above shows that the instances of actions committed by the petitioner upto the making of the report are mostly of pending cases.
17. The reference to F. I. R. Nos. 372 of 1972 and 323/72 is in two cases still pending trial. The reference to cases at S. Nos. 4, 5 and 6 is again to cases pending trial in the Court of A. .C. M. Karachi and while the case at S. No. 4 is of 1975, the two cases at S. Nos. 5 and 6 are of 1976. There is only one single conviction in Case F. I. R. 48/1973 under section 43/3 of the Abkari Act in regard to recovery of one chattak of charas, and the petitioner was sentenced to imprisonment till rising of the Court and fine of Rs. 50, as far back as 1973. The instances given, as already stated, also have no nexus with the allegations against him in the report. Moreover, one isolated case of conviction for 1A petty offence cannot be considered as indicating habitual or frequent commission of the acts complained of as is required in respect of all the clauses from 1 to 35 in section 14. The report/complaint, as submitted before the learned Tribunal, was therefore not such as could have been considered sufficient for proceedings under the Act and for the Tribunal to take cognizance of. The same under section 4 thereof. It is also clearthat the issue by the Tribunal of non-bailable warrants against the petitioner, in the first instance, was in clear contravention of the provisions of section 5 of the Act which provides for issue of summons requiring the .Persons complained against to appear, and it is only whenever it appears to the Tribunal that there is reason to apprehend the commission of the acts complained against and that such commission of the acts cannot be prevented otherwise than by immediate arrest of such person that the Tribunal may; after recording the substance of such report or information, issue warrants of arrest. In the instant case, no such information was placed before the Tribunal in respect of any particular act complained against, and the reasons for the issue of warrants for arrest of the petitioner were not specifically stated as provided for by the section.
18. Section 6 of the Act provides that every summons or warrant Issued under section 5 shall be accompanied by copy of the report which should briefly state (1) the acts with which the person complained against is charged ; (2) the details of time and place of such acts, besides the general repute of such person. In the instant case details of time and place of the acts was not mentioned and, therefore, there is obvious contravention of the provisions of section 6.
19. During the pendency of the proceedings action under section 8 (3) (b) can be taken and the detention of the person complained against order only if the Tribunal considers that immediate measures are necessary again for prevention of the commission of the acts complained against, and the reasons have to be recorded in writing. In the instant case the particulars act complained of against the petitioner has not been specifically stated in the impugned order with regard to his interim detention during the proceedings.
20. Under the circumstances stated, it :s apparent that cognizance of the report taken under section 4 of the Act and the subsequent proceedings which culminated in the passing of the impugned order dated 8-12-1980 were without jurisdiction and null and void.
21. The learned counsel for the petitioner has relied on the decision of the Supreme Court in Yousuf Ali v. Muhammad Aslam Zia and 2 others PLD 1958 SC (Pak.) 104,in which it was observed that "if on the basis of a void order subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders together with the super structure of rights and obligations built upon them must fall to the ground because such orders have as little legal foundation as the void order on which they are founded". Initially cognizance of the report being wrong all the proceedings and the orders C passed therein are also null and void. The proceedings under sections 41 and 14 of the Act and the impugned orders are, therefore, hereby quashed. The detenu is ordered to be released forthwith if he is not required in any other case,