On 24-11-1991 an information was laid by S.H.O. Saeedabad Police Station before S.D.M./Tribunal, Baladia Town, Karachi, to the effect that the applicant herein is in the habit of unauthorisedly occupying or in any other manner encroaching upon the lands belonging to Government and he is so dangerous as to render his being at large without security hazardous to the community. An action under section 14 of the Sindh Crimes Control Act, 1975, was, therefore, prayed against the applicant. The Tribunal took cognizance against the applicant and issued warrant of arrest against him. The applicant has now questioned the legality of the proceedings drawn against him through this application filed under section 561-A, Cr.P.C, with a prayer that the same maybe quashed.
2. Mr. Ameer Ahmed Khan, learned counsel for applicant has raised various points but he eventually 'confined his arguments in main to the following contentions:-
(i) that the warrant of arrest against the applicant was issued by the Tribunal in violation of the provisions of section 5 of the Sindh Crimes Control Act, 1975.
(ii) that the report of S.H.O., Saeedabad Police Station was in complete disregard of the provisions of section 6 of the Sindh Crimes Control Act, 1975, and consequently the Tribunal acted without jurisdiction.
(iii) that the applicant having no previous criminal record and there being no evidence available against him that he frequently indulged in activities within the meaning of section 14 of the Sindh Crimes Control Act, 1975, the cognizance taken against him was void ab initio.
3. As regards the first of his contentions reliance is placed upon the cases of Jan Muhammad v. The State, reported in PLD 1981 Kar. 682, Mst. Zareena alias Zohra v. Tribunal/S.D.M. Liaquatabad and another, reported in 1987 P Cr. L J 55, and Inayat v. The State, reported in 1989 P Cr. L J 1115. In the last cited judgment which was passed by me, the proviso to section 5 of the Sindh Crimes Control Act, 1975, was examined and it was held:- "A bare perusal of the proviso to section 5 of the Sindh Crimes Control Act, 1975, would show that issuance of warrant is an independent legislative provision made dependent upon the following exigencies:-
(i) satisfaction of the Tribunal, upon the report of a Police Officer or upon information,
(ii) the substance of such report or information shall be recorded by the Tribunal,
(iii) that there is reason to apprehend the commission of the act complained against, and
(iv) that such commission of the act cannot be prevented otherwise than by the immediate arrest of such person.
It is unnecessary to state how important and how valuable for the liberty of a subject the provisions with regard to arrest are. The satisfaction of a Tribunal for the issuance of warrant is not an empty formality. The issuance of warrant by the Tribunal in disregard to the above requirements was thus illegal."
4. No material is available on record which could justify the issuance of warrant of arrest against the applicant by the Tribunal. A brief statement made by S.H.O. Concerned alone was not sufficient.
Admittedly, the applicant was not prosecuted at any time for having committed trespass on the lands belonging to Government.
5. Section 6 of the Sindh-Crimes Control Act, 1975, provides:- "Delivery of copy of report.-- Every summons or warrant issued under section 5 shall be accompanied by a copy of the report and such copy shall be delivered by the officer serving or executing such summons or warrant to the person served with, or arrested under the same: Provided that the report shall briefly state:
(i) the acts with which the person complained against is charged,
(ii) the details of time and place of such acts,
(iii) general repute of person complained or such other allegations made against him."
6. The report filed by S.H.O. Saeedabad Police Station did not state:-
(i) acts with which the applicant is charged,
(ii) details of lime and place of such acts, and
(iii) general repute of applicant or any other allegation against him.
As observed in Jan Muhammad v. The State, reported in PLD 1981 Kar. 682, the order of Tribunal based on such report is without jurisdiction.
This question was also examined by me in Inayat v. The State, reported in 1989 P Cr. L J 1115, and was answered in the following words:- "Like proviso to section 5, the proviso to section 6 of the Sindh Crimes Control Act, 1975, was not really a proviso in the accepted sense, but an independent legislative provision laying down the contents of the report to be served upon the person proceeded against. On the face of it the report filed by S.H.O. Sujawal Police Station, against the applicant does not satisfy the requirements of the proviso to section 6 of the Sindh Crimes Control Act, 1975. The S.H.O. Sujawal Police Station has tried to bring the case of the applicant within the mischief of clauses (xix), (xx) and (xxxi) of section 14 of the Sindh Crimes Control Act, 1975, but only vague allegations have been made with no details of time and place of such acts, as required under section 6. The report which is again the basis of proceedings under section 8 of the Sindh Crimes Control Act, 1975, is intended to give sufficient notice to the person against whom the proceedings are drawn, of the accusation made against him. Therefore, the report must set forth the substance of accusation alleged against the person proceeded with. If this is not done, the person proceeded against, cannot know till he comes to Tribunal precisely what he is charged with, and as no charge is drawn up in such proceedings, he may not know till the final order is passed, what his alleged fault is."
7. The perusal of section 14 of the Sindh Crimes Control Act, 1975, again makes it clear, that the person complained against must act `frequently' or `habitually' in order to bring his case within the mischief of this provision of law. The word `frequently' as defined in the New Oxford Dictionary means habitually too. The word `habitually' was examined in the case of Qasim and 2 others v. The State, reported in PLD 1971 Kar. 473 and it was held that:- "Habitually must be taken to mean repeatedly or persistently. Habit implies a tendency resulting from the frequent proof by adducing evidence of commission of a number of similar acts. It, therefore, follows that a stray actor two are not enough in proof of habit."
8. The word `habit' was also interpreted in the case of Mazan alias Mazno v. The State, reported in PLD 1975 Kar. 1035 and it was observed:-- "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."
9. The word `habit' was again considered by a Division Bench of this Court in the case of Aftab Alam alias Matoo v. Province of Sindh and 2 others reported in PLD 1979 Kar. 645 and it was observed that:-- "The word `habitually' required a continuous and permanance of criminal tendency, something that has developed into a propensity that is present from day to day. Its presence is demonstrated by the frequency of acts that by repetition have acquired the characteristic of being customary or usual behaviour that is to be regarded as almost inevitable when the appropriate conditions are present. 1n other words, a habitual offence or a person habitually addicted to crime repeats on committing of offence/offences whenever appropriate conditions are present. It becomes habit on account of frequent repetition to commit offence."
10. The report filed by S.H.O. Saeedabad Police Station is against the spirit of section 14 of the Sindh Crimes Control Act, 1975, which requires frequent repetition of the offences. No such instance has been quoted in the report and quite admittedly the applicant is not involved in any case of trespass. The pendency of a case under section 151, Cr.P.C. Does not serve the required purpose.
Thus, this important ingredient of section 14 is missing in this case.
11. Faced with the above situation, the learned counsel for State has also not supported the impugned action taken against the applicant. In this view of the matter, the application made under section 561-A, Cr.P.C. Is allowed and the proceedings pending against the applicant under section 14 of the Sindh Crime Control Act, 1975, before the S.D.M./Tribunal, Baldia Town, Karachi, are hereby quashed.
N.H.Q./W-74/K