' This is a Revision Application under subsection (2) of section 22 of the Sind Crimes Control Act, 1975 (hereinafter referred to as the Act) against the order of Commissioner, Hyderabad, refusing to grant bail to the petitioner.
2. S. H. O., Market Police Station, Hyderabad, lodged a complaint against the present petitioner under section 4 read with section 14 of the Act alleging that the petitioner was a desperate person, in the habit of fighting with respectable inhabitants of the area and that be behaved riotously. It was also alleged that he is a pimp, a tout of prostitutes who lives on the earnings of prostitutes and !Takes livelihood by corrupt and dishonest means. A list of 8 instances were quoted basing on which the S. H. O. Made a prayer before the Tribunal that proceedings under the Act may be taken against the present petitioner. The Tribunal issued warrants against the petitioner on 19-4-1975. He seems to have been produced before the Tribunal on 26th June, 1975, when, upon an application under section 8 (3) (b) of the Act moved by the S. H. O., the Tribunal ordered as follows :- "It appears from the above report of the S. H. O. Police Market, Hyderabad that the accused is likely to repeat commission of the acts complained against if released from Jail and that immediate measures are necessary to prevent commission of the said acts. I accordingly order that the accused he detained in prison for a period of two months during which period the inquiry will be completed.
(Sd.)
26-6-1975. S. D. M. & Tribunal City Hyderabad."
' The application for the release of the petitioner on bail was moved on 28th June, 1975, which was rejected with a short order of the Tribunal that his detention orders under section 8 (3) (b) had already been passed therefor, question of grant of bail did not arise. An appeal against this order before the Commissioner was heard on 10th July, 1975, and learned Commissioner inter alia rejected the bail application with the following observation :- "So far the material placed before the lower Court, on the face of it, justifies the impugned order.
Question of bail does not arise in view of the detention order passed under section 8 (3) of the Sind Crimes Control Act."
3. Learned Additional Advocate-General has taken a preliminary objection that the scope of subsection (2) of section 22 is more limited than even that of section 435 of the Cr. P. C. Inasmuch as that under this provision of the Act the only question which can be gone into is the legality of any order passed by the Commissioner under section 21(1) of the Act. There cannot be any quarrel with this argument. The question, however, is if the order passed by the Commissioner is legal in terms of the provision of the Act.
4. Subsection (3) of section 8 empowers the Tribunal to take measures for prevention of the commission of the act complained against. These steps are of the nature of obtaining a bond with or without surety for maintaining good behaviour. Under clause (b) of this subsection, however, the Tribunal has the discretion for reasons to be recorded in writing to detain a person instead of demanding bond for good behaviour. This provision cannot be pressed into service mechanically.
Conditions precedent for invoking powers of detention are that the tribunal has to come to a conclusion that such immediate measures are necessary for the prevention of the commission of the Act. In the present case, the Tribunal has acted on a mere application of the S. H.
0. Which is not sworn and A for whose truthfulness there was nothing before the Tribunal. In an unreported judgment of this High Court (Allah flux v. Government of Sind-Civil Petition 764 of 1973) a Division Bench of this Court held :- "We have shown earlier that the 'Tribunal may, when the person complained against appears before it take from him a bond for his appearance during the enquiry or when called upon and may also require him to furnish a bond to be of good behaviour until the conclusion of the enquiry '.
The power to order detention is conferred on the Tribunal under subsection (2) of section 8 which follows the words quoted. Therefore, as the power to detain is not conferred by an independent section as a penal provision has to be construed strictly, section 8 has to be read as a whole, and this means that the guidelines for the exercise of the power under subsection (2) are contained in subsection (1). The result is that even when an information falls under section 13, the Tribunal can detain a person pending the enquiry, only if it is satisfied that the person complained against will not appear before it or will not be of good behaviour until the proceedings against him are decided. And further the satisfaction of the Tribunal about the existence of these conditions must be an objective satisfaction. No doubt the question of satisfaction must depend on the facts and circumstances of each case. But we would reiterate here that a Tribunal cannot detain a person after his conviction under section 13, therefore, in our humble opinion, on a proper construction of the Ordinance, the power of detention under section 8 can be exercised only if there is a reasonable and imminent apprehension that the person complained against will not appear before the Tribunal, so as to prevent the enquiry against him, or that he will misbehave during the pendency of that enquiry ; and further, in view of subsection (1), the detention is to be resorted to only if the Tribunal is satisfied that the purpose of section 8 will not be served by taking a bond with or without sureties from the person complained against. It is only when all these conditions are satisfied that a Tribunal can pass an order of detention, and this implies that there must be material to support its conclusion.
7. Now the most satisfactory and obvious manner in which a Tribunal can satisfy itself about the necessity of a detention is by recording evidence, but this is not the only manner in which it may reach its conclusion about the necessity of a detention. What is to be remembered is that a Tribunal has to apply its mind to the facts and circumstances of the case, and we have to state with very great regret that we have recently come across many cases in which Tribunals have passed detention orders solely on the basis of the information's lodged under section 5 of the Ordinance. In the first place, we would repeat here that even if each and every allegation in an information is proved, the person proceeded against cannot be jailed. Secondly, a complaint is not oath and the allegations in it may be false, and on the other hand, if the Legislature had intended to give such sanctity to information's lodged under section 5 it would not have enacted section 8.
The object of enacting section 8 is to protect the liberty of the subject by imposing a duty on the Tribunal to satisfy itself that the detention of the subject is absolutely necessary. Therefore, if a Tribunal passes a detention order solely on the basis of the information lodged before it by the police, it is abdicating its own duties and responsibilities and acting illegally.
8. Yet another restriction on the Tribunal's power of detention is that a person can be detained only 'till the conclusion of the enquiry'. The liberty of the subject is precious and the words quoted cannot be treated as redundant, therefore, the submission before us was that as the Tribunal had not examined any witness whatever for more than two months, the detention order was mala fide.
We agree with this submission and we may point out here that matters affecting the liberty of the subject are always given priority in our Courts and decided expeditiously. That is the proud tradition of all common law Courts. It is also significant that the Legislature has expressly enacted that proceedings under the Ordinance 'shall be deemed to be judicial proceedings.' Therefore, bearing in mind the fact that a person convicted under section 13 cannot be jailed because of that conviction, a Tribunal is under an obligation to dispose of the enquiry before it expeditiously if it passes an order of detention, and its failure to do so would amount prima facie to legal mala fides.
' The only difference between the provision of section 8 of the West Pakistan Control of Goondas Ordinance. 1959 and subsection (3) of section 8 is that in the former law, an additional factor for empowering the Tribunal to detain a person was the apprehension that the person proceeded against would not appear before the Tribunal. With this exception the views expressed in the above quoted ruling apply mutatis mutandis to the present case. The Tribunal acting on a report of a police officer, and not trying to satisfy itself by recording the necessary evidence, is evidently abdicating its own duties.
5. Another obvious thing evident on record of this case is that the instances quoted in the report have no relationship with the allegations levelled in the early body of the complaint. The petitioner is alleged to be pimp and tout of prostitutes, a person who lives on the earning of the prostitutes and makes livelihood by corrupt and dishonest means. But instances quoted relate to commission of murder, attempts to commit murder, of causing hurt and the like ; and violation of curfew order imposed under rule 9(2), D. P. R. These instances have obviously no relationship with the main allegations. These facts obviously have not been gone into by the learned Commissioner and the Tribunal.
6.The order of detention under section 8 (3) (b) states that the "accused" be detained for a period of two months "during which period the enquiry i, ill be completed." Learned counsel for the petitioner has made a statement at the bar that as he is representing before the Tribunal as well, therefore, he would state that no evidence has been recorded against the petitioner before the Tribunal nor any proceedings in any other manner have taken place in that forum. This neglect on part of Tribunal has been held in the above quoted judgment of this Court to be legally mala fide and as the Act also does not envisage detention without enquiry, just as the Ordinance did not, such detention would be untenable in the eye of law.
7.In view of the above discussion I would accept the petition and direct that the order of the Tribunal passed under section 8 (3) (b) be suspended and the Tribunal, however, be at liberty to proceed with the enquiry in accordance with the provision of the Act.