' This quashment petition under section 561-A, Cr.P.C. Arises out of the following circumstances: that on 18-7-1989, Mst. Anwar Begum, herein the petitioner, Resident of Mauza Haveli Tara Kalan Tehsil Kamalia District Toba Tek Singh, was hauld up by A.S.I. Police Station Saddar Ahmadpur East under section 54/109 of the Code of Criminal Procedure on account of concealing her identity behind a kikar tree when she saw a female police party approaching her and that she did not give any explanation in respect of her living within that area.
2. A complaint (kalandra) under section 55/109 ibid was filed before the learned Ilaqa Magistrate by the S.I. Of the same police station. The Magistrate gave a notice under section 112 of the Code of Criminal Procedure to the petitioner who refused to be released on bail by any person, hence this quashment petition.
3. Learned counsel for the petitioner in support of this petition raised the following points:
(a) It was contended that the A.S.I. Had no authority to effect arrest under section 54 ibid. The apprehension of the petitioner by the A.S.I. Was, therefore, illegal and without lawful authority.
(b) It was contended that section 55 of the Code of Criminal Procedure as well as section 109 ibid were applicable to vagrants and suspected persons and were not available against the law- abiding female citizens of the country. The object of arrest under section 55 ibid and taking of security for good behaviour was to prevent the commission of offence or for good behaviour from vagabonds and loafers. It had hardly any application in respect of females against whom there was no allegation of intention of committing any offence.
(c) That the provisions of section 54 of the Code of Criminal Procedure were not applicable to the facts of the case.
(d) It was next contended that mere act of temporary concealment or giving no explanation for ostensible means of subsistence do not come within the mischief of section 109 ibid. According to learned counsel, the circumstance of concealment and giving no explanation for livelihood is to be examined in the context of intention to commit offence. It was contended that the preventive measures are taken against such persons in such circumstances to take precautionary measures against commission of offence. Reliance was placed on Abdul Aziz Lahari v. The State PLD 1962 Dacca 611, The State v. Abdul Hakim and another PLD 1964 Karachi 384 and Muhammad Sharif v.
Superintendent, New Central Jail Multan 1971 P Cr. L J 12.
4. Learned counsel for the State opposed the petition supporting the proceedings pending before the Ilaqa Magistrate.
5. The purpose and object of proceedings under sections 54, 55 and 109 of the Code of Criminal Procedure came into consideration in a number of cases a few of which may be noticed.
6. In Abdul Aziz Lahari v. The State PLD 1962 Dacca 611 it was held that section 109 of the Code of Criminl Procedure contemplates continuous act of concealment and does not apply to momentary efforts to avoid detention or arrest.
7. In the State v. Abdul Hakim and another PLD 1964 Kar. 384 it was laid down by Inamullah Khan, J.
That:- "The provision of section 109 is of a penal nature and if there are two reasonable and possible interpretations of 'who cannot give a satisfactory account of himself the one which is more favourable to the accused should be accepted. To my mind, the interpretation put by the majority of the Judges of the Allahabad High Court is more favourable to an accused person. It should be given preference to restricted interpretation of the said phrase."
8. In Muhammad Sharif v. Superintendent New Central Jail, Multan 1971 P Cr. L J 12 while dealing with the case of a female under sections 55 and 109 of the Code of Criminal Procedure it was observed: "Sections 55 and 109, Cr.P.C. Deal with vagabonds and suspected persons. In this case there were no circumstances to show that the girl was a vagabond or was about to commit an offence. She was just accompanying a young man and the circumstances under which she was ccompanying him were still to be examined. I, therefore, quash the proceedings in so far as the girl is concerned and direct that she be handed over to her father."
' Reference may also be made to a case Sheikh Piru v. King Emperor AIR 1925 Cal.
616. This case related to the apprehension of a previous convict in a circumstance wherein he tried to conceal his identity from the Police and did not gave a satisfactory reply in respect of his means of livelihood. In this case it was observed that: "I regret to say that I have often found the salutary provisions of S. 109, Criminal Procedure Code turned into a sort of an engine of oppression upon old convicts who are thrown helpless upon the world with none to take them in their employ or help them to turn out an honest penny for their living. In the case of Queen-Empress v. Pooran Agarwalla (1900) 5 C.W.N.28, this Court pointed out that the fact that a man does not work or that he was convicted previously for bad livelihood does not justify a Magistrate, without being satisfied from the evidence that since his release he has no ostensible means of livelihood, to order him to furnish securities for good behaviour."
9. The ratio emerging from examination of sections 54, 55 and 109 ibid is as follows:-
(i) that these provisions are of a punitive nature and, therefore, arc to be given restricted interpretation.
(ii) that these proceedings are preventive in nature and are aimed at taking precautionary measures against the commission of offence by vagabonds and loafers they are not applicable to ordinary citizens.
(iii) that the circumstances of concealment or furnishing no explanation with respect to ostensible means of subsistence must be of a permanent character and must be with an object to commit an offence.
10. Applying the aforesaid principles to the facts of the case I am quite clear in my mind that the petitioner was neither a loafer ( ) nor a vagabond nor had any intention to commit an offence, that her effort to conceal her identity from the approaching police party did not constitute a circumstance of a permanent character and so her action of concealment did not fall within the mischief of sections 55 and 109, Cr.P.C. I, therefore, have no doubt in my mind that the filing of the complaint before the Ilaqa Magistrate and the pending proceedings are sheer abuse of authority.
11. There is yet another aspect to this petition, which merits notice. Initially the petitioner was arrested under section 54 ibid by the Police officer who had no authority to effect the arrest. Later on the Kalandra was filed under section 55 from a female without realising that it will tarnish her good name. Such acts are sheer abuse of authority and hardly inspire confidence.
12. For whatever has been stated above, I accept this petition, quash the proceedings under section 55/109 of the Code of Criminal Procedure pending against Mst. Anwar Begum, petitioner, in the court of E.A.C. Ahmadpur East. She shall be released forthwith if she is not required in any other case.