' Z. A. CHANNA , J.-This constitutional petition is directed against the proceedings initiated against the petitioner, who is stated to be a contractor, under the Sind Crimes Control Act, 1975 (hereinafter referred to as the 'd Act), on the basis of a report, dated 4.11-1976, submitted against him by nspector Allah Bux liskani, S. H. O. Latifabad, to the S.
0. M. And the tribunal, Hyderabad.
2. In the report submitted against the petitioner by the Police, it is liege that the petitioner runs a well-known prostitution den induces destitute women for prostitution, has no other source of livelihood excepting hat of being a pimp, keeps unlicensed arms and has connections with thieves. t is stated in the petition that on the basis of the police report, the learned tribunal took cognizance of the matter and issued non-boilable warrant gains the petitioner which, however, has not so far been served upon him.
3. Section 6 of the said Act requires that the warrant against the person reported shall be accompanied by a copy of the report and such report shall briefly state- (0 the act with which the person complained against is charged ; (ii) the details of time and place of such act ; and (WI general repute of person complained against or such other allegations made against him.
4. The report against the petitioner, besides containing allegations of a general nature, makes mention of two cases in which the petitioner is said to have been involved. Even if mention of these two cases can be said to fulfill the requirements of clauses (i) and (ii) of the proviso to section 6 of the said Act, namely stating the acts with which the person complained against is charged and the details and time of such acts, the further question which requires consideration is whether the two cases in which the petitioner is said to have been involved have any nexus with the allegations made against him or bring him within the scope of the said Act. }loth the cases in which the petitioner is involved are said to have arisen out of an incident which occurred on 18-5-1973, at about 9-00 p m. Near bungalow No, 227/8 of Unit No, 9, Latifabad, Hyderabad. The first of these cases was under section 294, P. P. C. And the allegiant against the petitioner in that case was that he was committing indecent acts, namely kissing and embracing a woman, pop site the gate of the bungalow aforementioned. In the other case, the allegation against the petitioner was that at the time of his arrest in connection with the case under section 294, P. P. C. He was found in possession of a spring knife, having a blade of 54in contravention of the provisions of section 13 (d) of the West Pakistan Arms Ordinance, 1965. In both these cases the petitioner was discharged for want of attendance of the prosecution witnesses.
5. Now, so far as the case under the Arms Ordinance against the petitioner is concerned, it doe3 not fall within any of the clauses of section 14 A of the said Act, for the commission whereof action under the said Act can appropriately be taken Clause (xxx) of the said Act refers to frequent illegal possession or using of any bomb, stinging, machine-gun, automatic rifle, grenade, rocket, dynamite or other explosive. It does not refer to the possession or carrying of a knife Moreover, the case against the petitioned related to a single instance of being found in possession of a knife and not to his being in frequent possession of arms. In any ease, since the petitioner was discharged in that case, it could not be made the basis of proceedings against him under the s aid Act.
6. So far as the case against the petitioner under section 294, P. P. C is concerned, apart from the fact that it related to an incident which occu more than 3 years back and further the petitioner in that case was discharge it has, in our opinion, no nexus with clause (iv) of section 14 of the sai Act, which clause has been referred to in the report of the police, or in fact with any other clause of that section. The said clause (iv) reads as under : "(iv) frequents gambling dens or unlicensed places where illicit intoxicants are consumed or houses of prostitutes for immoral purposes."
' Reference may also be made to clause OM of section 14 which specifies ac of running a brothel, being a tout of prostitutes or living wholly or partly on earning of prostitutes. The act of kissing and embracing a woman, for which the petitioner was tried, clearly does not amount to any such act as I specified in either of the aforesaid clauses or the other clauses of section 14 of the said Act. The said Act is a special Act which gives wide powers for the prevention of crimes. Since the said Act, though enacted for a laudabl purpose, is a special Act which affects the liberty of citizens. Its provisio prescribing the circumctances and the mode in which the proceedings thereunder are to be initiated and taken, and orders passed, would be deemed to be mandatory and have thus to be strictly followed. The initiation of proceedings by the Tribunal on the basis of a report, which mentioned onl the above two cases, was thus in violation of the provisions of section of the said Act, and in our opinion, jurisdiction was assumed on a clear misunderstanding and misreading of the provisions of law. In Shabbir Ahmad v. Kabtr-un-nissa (1), it has been held : "An assumption of jurisdiction upon a clear misreading of the provisions of the law is an error apparent on the face of the record and such an error does furnish a ground for interference in the writ jurisdiction."
7. There appears TN us to be another violation of the provisions of the said Act. Section 5 of the said Act requires that before issuing a warrant against the person reported, the Tribunal shall record the substance of the report or information upon which the warrant is being issued. Such substance must relate to the offence or ace which it is proposed to prevent through the issuance of the warrant. In the instant case, the learned Tribunal has failed to record the substance of the report or information by the police in his order directing the issuance of the warrant and has merely stated therein that there was reason to apprehend the commission of the act complained against, without mentioning that act or the allegations on the basis of which the warrant was being issued.
The order thus cannot be considered to be in compliance with the provisions of section 5 of the said Act.
8. The learned Advocate-General, while not disputing the fact that the two cases mentioned in the report of the police against the petitioner, did not have nexus with the provisions of clause (iv) of section 14 or in fact with any other clause of the said section, contended that the petitioner had an alternative and efficacious remedy by way of appeal and revision under sections 21 and 22 of the said Act to the Commissioner. Since, in our opinion, the proceedings before the learned Tribunal on the basis of the police report, are without jurisdiction, the mere fact that the petitioner could
(1) PLD 1975 SC 58 ' approach the Commissioner for redress would not be considered an alternative and efficacious remedy. If the case of the petitioner does not fall within the scope of the said Act, he need not invoke the appellate or revisional jurisdiction of the Commissioner, and could under the circumstances directly approach the High Court in the exercise of its constitutional jurisdiction.
8. In the case of Ali Abbas v. Vishan Singh (1), Cornelius, C.
3. Observed as under "There is a perversion of procedure apparent on the face of the record, and it is in our view idle to suggest that against such a denial of rights, the proper remedy for the appellant to adopt was to move the Custodian for review or revision. There had been in the relevant respect, an excess of jurisdiction, and the affected party could not be penalized for not throwing themselves again on the mercy of the authorities who were responsible for such excess. The proper and indeed the only authority which possessed power to correct the legal wrong thus done was the High Court acting in its jurisdiction under Article 98 of the Constitution."
9. Since there has been, in the instant case, a violation of the provisions of sections 5 and 6 of the said Act and an assumption of jurisdiction upon a clear misreading or non-compliance of the provision of law, we hold that the proceedings taken against the petitioner are without jurisdiction and lawful authority. We accordingly quash those proceedings and would direct the recall of the non-bailable warrant issued against the petitioner.
(I)PLD1967SC294