The applicant has filed this application under section 561-A, Cr. P. C. For quashing proceedings started against him under section 14 of the Sind Crimes Control Act, 1975 (hereinafter referred to as the Act) by S. H.O. Shahpurchakar in the Court of S. D. M., Shahdadpur.
2. The facts of the case are that on 13th August, 1981 the applicant was arrested by S. H.O.
Shahpurchakar and produced before S. D. M. Shahdadpur with a report under section 14 of the said Act alleging that the applicant is history sheeter, that he is a desperate, criminal, dangerous and by habit a Patharidar, keeping unlicensed arm and harbouring dacoits and also tampering public peace and tranquillity. In support of the above allegations the S. H.O. Mentioned in his report a list of 15 criminal cases in which the applicant was challaned. These cases were filed between the period 1963 to 1978. These cases were under various sections of Cr. P. C. And P. P. C. Namely, under sections 110, Cr. P. C., 430, P. P. C., 307, P. P. C., 364, P. P. C., 379, P. P. C.; 13-E, Arms Ordinance, 302, P. P. C. And section 148/149, P. P. C. It is not mentioned as to whether the applicant was convicted in any of the above cases. Nor it has been mentioned whether during the period 1978 to the date of the complaint i,e, 13th August, 1981 the applicant committed any of the acts complained against which necesitated action under the said Act.
3. The learned S. D. M. Entertained the complaint on the same day i,e, 13th August 1981 and passed an order for issuance of non-bailable warrant against the applicant. He did not mention any ground as to why non-bailable warrant was being issued in the first instance instead of summon as provided by section 5 of the said Act. The order under section 14 of the learned Magistrate appears to have been couched in mechanical language by repeating the allegations exactly in the same words as stated by the S. H.O. In his report.
4. It has been 'argued by Mr. Muhammad Shau Mohammadi learned counsel for the applicant that the allegations mentioned in the complaint do not fall within the preview of section 14 of the said Act and furthermore the order of the S. D. M. Issuing non-bailable warrant on the very first date of hearing is in contravention of section 5 of the Act. Again the complaint is vague because no particulars of time and place etc. Have been mentioned in respect of the allegations against the applicant as laid down in section 6 of the Act.
5. In support of the above plea the learned counsel has relied on the case of Syed Ghulam Ali Shah v. Commissioner, Hyderabad Division in which a learned Single Judge of this Court had, in exercise of powers under section 561-A, Cr. P. C. Quashed proceedings under the Act against Syed Ghulam Ali Shah with the following observations :- "The report contains general allegations that the petitioner's main profession is blackmailing ; that he blackmails Government officials in order to induce them to pay him hush-money. The instances that have been cited in this report are of some old cases of 1956 under section 353, P. P. C. 1959 under M. L. R. 8 of 1963 under section 302 and of a challan under the Goondas Ordinance. In none of the cases it has been shown that the petitioner was convicted or found guilty. Very likely he was discharged or acquitted in all these cases. Then it is mentioned that he has been suspected in certain crimes. Mere suspicion cannot be the basis of criminal proceedings. Lastly some instances are given in which he is supposed to have made applications against Government officers.
However, no action was ever taken against him for those applications, otherwise he might have been convicted for making false allegations against public servants. It has been argued by Mr. Muhammad All Shaikh that the provisions of section 6 of the Sind Crimes Control Act, 1975, have not been complied with as the acts with details of time and place etc. Have not been given in this report. Regarding evidence of general repute certain instances have been quoted which are actually more than 20 years old. It has accordingly been pointed out that there is hardly any basis for starting these proceedings and there is no evidence to establish the charge."
The proceedings were consequently quashed. Another case cited in support of the application is of Syed Abbas Ali Shah v. S. D. M./Tribunal Tando. Adam in which a D. B. Of this Court had quashed proceedings under section 14 of the Act against Syed Abbas Ali Shah. The allegations against the said petitioner were that he was a notorious and habitual offender involved in many criminal cases and non-bailable warrant was issued under section 5 of Crimes Control Act. It was further alleged that as many as six criminal cases were filed against the petitioner but without mentioning particulars as to time and place of acts complained against nor final result of the cases was mentioned. It was held by the Court in the above case that the Tribunal could not rely upon such report nor could it be made the basis for initiating proceedings under the said Act. With these observations the proceedings were quashed.
6. In the present case also no particulars of time and place have been given in respect of the various offences for which the applicant had been challaned. Some of the cases referred to in the report are about 20 year old. Moreover issuance of non-bailable warrant in the first instance without giving cogent reasons is also contravention of mandatory provisions of section 5 of the Act.
Mr. Ali Bux Leghari learned counsel for the State has conceded that the Tribunal had acted illegally in issuing non-bailable warrant in the first instance and in taking cognizance of the case under section 14 of the Act on vague allegations. But he stated that the order of the Tribunal was appealable under section 21 of the Act. Perusal of section 21 shows that only orders passed under sections 8, 14, 15, 16, 17 and 19 of the Act are appealable before the Commissioner. The impugned order has been challenged on the basis of violation of the mandatory provisions of sections 5 and 6 of the Act and it has been rightly argued that the order under section 5 of the Act is void ab initio and all proceedings taken on the basis of such order would also be void. Hence it was not necessary for the applicant to have resorted to the alternate remedy of appeal under section 21 of1 2 the Act. In the two Karachi cases above the petitioners had approached High Court direct for quashment of the order of the Tribunal passed under section 5 of the Act. When the initial order is void ab initio, then it is not necessary for the aggrieved person to first avail of the alternate remedy of appeal, revision etc. Which in circumstances of the case cannot be termed as efficacious.
The application is, therefore, allowed and the proceedings pending', against the applicant in the Court of S. D. M., Shahdadpur are quashed. 1978 P Cr. L 592 1979 P Cr. L J 303