1. The petitioner has filed this Constitutional Petition seeking quashment of proceedings under the Sind Crimes Control Act, 1975 (Act IV of 1975) (hereafter referred to as the Act); pending against him before the Sub-Divisional Magistrate City and Tribunal, Hyderabad.
2. The facts leading to the filing of the petition are asunder.
3. On 9th December, 1980, S. H. O. Market Police Station, Hyderabad submitted a report under section 4/14 of the Act before the Tribunal against the petitioner. The substance of the complaint was
(1) that he is a great badmash and `goonda' and commits breach of public tranquillity.
(2) that he is a drunkard and deals .In country-made liquor and has no other source of living; (3)that he is a dangerous goonda and badmash and keeps dangerous weapons with him and that goondas from far-off places visa him and he sells charas;
(4) that because he is a dangerous goonda no one comes forward to depose against him, and (5)that he has backing of big persons and, as such, ordinary has no effect upon him.
4. The report mentions seven instances of acts with which the petitioner is charged which read as under :- (1)On 13th January, 1970 he caused knife injury to Khuda Bux Chandio, Crime No. 19)17 was registered and he was Challaned in the Court under section 324, P. P. C. On 9th February, 1970.
5. (2)On 5th August, 1970 Mr. Noor Nabi, Inspector Excise secured one maund charas from his house and Crime No. 61 of 1970 was registered for which he was challaned in the Court.
6. (3)On 8th November, 1972 S. I. P. Muhammad Saleem arrested him while gambling upon which he and other gooadas obstructed the S. I. P. In the discharge of his duty and, as such, Crime No. 37:/72 was registered and he was challaned in the Loam under sections 427, 353 and 188, C. P. C. And section 6 of Gambling Ordinance, on 20th August, 1978.
7. (4)That on 14th November, 1976 Inspector War Muhammad Khan sent up him under Sind Crimes Control Act, but however he was discharged.
8. (5)That on 13th March, 1979 Inspector Allah Bux Jiskani sent him up under section 110, Cr. P. C.
9. (6)That on 25th October, 1980 S. I. P. Ghulam Hussain, while patrolling during the night tried to apprehend him and one Babu alias War while he had liqour in his possession, ran away leaving the liquor which was seized and Crime No 208 of 1980 under section 314, Enforcement of Hudood Ordinance was registered.
10. An application purporting to be under section 5 of the Act was submitted alongwith the report stating that the petitioner was likely to repeat the commission of the acts complained against and in order to prevent him from doing so non-bailable warrants be issued for his arrest. The learned Sub-Divisional Magistrate-and Tribunal passed the following order on the aforesaid application :- ---From the perusal of the complaint under section 14 of the Sind Crimes Control Act, 1975 and grounds mentioned in the application under section 5 of the Sind Crimes Control Act and statement given by S. H. O. Market for issuing of non-bailable warrants against opponent Ashraf alias Taoo son of Allah Bux Silawat I am satisfied that the respondent is dangerous and desperate criminal and he would evade ordinary process. I, therefore, hereby order that N. B. W. Against the respondent Ashraf alias Taoo should be issued and given to the S. H. O. Market Police Station Hyderabad for execution.--- On 11th December, 1980 the petitioner was arrested by S. H. O. Market Police Station, Hyderabad and was produced before the Tribunal. After framing charge, the Tribunal passed an order under section 8 (3) (b) of the Act for his detention in judicial custody for two months.
11. On behalf of the petitioner the following contentions have been raised :- (1)That the allegations against the petitioner in the report are of a general nature and mostly do not fall within-any of the 35 counts mentioned in section 14 of the Act.
12. (2)That the very assumption of cognizance of the report and the subsequent proceedings are illegal being in violation of the mandatory provisions of sections 5, 6 and 8 of the Act.
13. (3)That the instances of criminal activities listed at S. Nos. 1, 2, 3 and 4 were considered when the petitioner was sent up under the Sind Crimes Control Act before the present proceedings and the petitioner had been discharged in the aforesaid proceedings on 20th November, 1980 by the same Tribunal.
14. (4)That on 23rd October, 1980 the petitioner had filed direct complaint against S. I. P. Ghulam Hussain and two Police Constables of Market Police Station, Hyderabad in the Court of the IIIrd Additional Sessions Judge, Hyderabad who had been pleased to issue process against them.
15. (5)That as a counterblast of the filing of direct complaint, S. I. P. Ghulam Hussain engineered a false case under section 4 of the Enforcement of Hudood Ordinance against the petitioner in which he has got bail before arrest from the Court of Sessions Judge, Hyderabad, and finally.
16. (6)That the action on the part of the S. I. P. In making the report against him so soon after he had been discharged by the same Tribunal on 20th November, 1980 on the same instances on which he had been previously sent up shows that the action against him is mala fide.
17. I have heard Mr. Kamaluddin, the learned counsel for the petitioner and Mr. M.
1. Memon the learned Additional Advocate for the State. It is apparent from a perusal of the record that there was contravention of provisions of section 5 of the Act inasmuch as ordinarily on receipt of report the section provides that the Tribunal shall issue summons requiring the person complained against to appear, and it is only when it appears to the Tribunal upon the report of the Police Officer or upon other information that there is reason to apprehend the commission of the act cannot be prevented otherwise than by the immediate arrest of such person that the Tribunal may issue warrants for his arrest. However, even in such a case the substance of the report or information has to be recorded by the Tribunal before taking the extreme action of issuing warrants of arrest. In the instant case, there is no particular mention of any apprehended act and even in the report general allegations have been made. In any case, it is not apparent from the order passed as to what was the reason for apprehending the commission of an offence and also as to what was the act complained against. In Muhammad Ashraj alias Taoo v. The State (1980 P Cr. L J 94) A which was, a decision of Criminal Revision No. 1511978 filed on behalf of the petitioner in respect of earlier proceedings under the Act ; it had been observed that normal process to be issued was summons and not a bailable warrant, and further that action of the issue of non-bailable warrants, in the first instance, was not meant to be a punitive act of the Tribunal. It was further observed that the Legislature has granted the power to issue of warrant of arrest against the person proceeded against in certain specified conditions and unless those conditions were satisfied, the punitive action was totally unwarranted by the law.
18. The order issued by the Tribunal under section 5 and the issue of non--bailable warrants of arrest of the petitioner, therefore, was obviously not in accordance with the law.
19. Similarly, the action of ordering detention under section 8(3,) (b) of Act for a period of two months, in the first instance, was not justified as reasons for taking such action had to be recorded in writing showing that it was necessary for the prevention of the commission of the act complained against to take the interim measures directing the petitioner to execute a bond for maintaining good behaviour until the conclusion of the enquiry, and that it was necessary to detain such person in custody for two months. The normal course is that pending the completion of the enquiry only if the Tribunal considers that immediate measures are necessary for the prevention of the commission of act complained against to direct the person complained against to execute a bond. In the instant case there was absolutely no case for such drastic action as I s apparent from the record.
20. Further, it is apparent that there was contravention of the provisions of section 6 of the Act as details of time and place of the commission of the acts complained against were no given in the report. It is also apparent that once on a report of the same incidents mentioned as acts complained against the petitioner had been discharged by the same Tribunal a very short time before the fresh report was made, the same incidents could not possibly be considered against the petitioner a second time. It has also been pointed out by the learned counsel for the petitioner that in the case F. I. R. No. 264/1974 shown a S.No, 4, the petitioner was discharged by the learned IIIrd Assistant Sessions Judge, Hyderabad on 4th November, 1978. It is also apparent that the petitioner had been discharged in the earlier proceedings mentioned at S. No. 5 in the present report against the petitioner. With regard to the case under section 110, Cr. P. C. Shown at S. No. 5, the petitioner was discharged by the 4th Additional Sessions Judge, Hyderabad on 4th November, 1979. The only other instance shown at S. No. 7 was of a case not having been challaned in the Court and the petitioner is on bail before arrest granted by the learned Sessions Judge, Hyderabad.
21. In view of the circumstances stated, the proceedings against the peti--tioner under the Sind Crimes Control Act, 1975 before the Sub-Divisional Magistrate City and Tribunal, Hyderabad cannot be allowed to continue as the same amount to abuse of the process of the Court. Mr. M. I. Memon, the learned Additional Advocate-General has rightly conceded that the action taken and the proceedings cannot be supported.
22. The petition is accordingly allowed and the aforesaid proceedings are hereby quashed. The petitioner is present on bail and the bail bond shall stand cancelled.