If someone wants to know the art of arguing matters in classical manners, it would be proper for such person to learn it from Mr. Nooruddin Sarki, one of the most respectable and learned Member of the Bar at Karachi. His arguments left no choice for me but to write the following detailed judgment which would govern the disposal of following 4 Criminal Miscellaneous Applications for quashment in the proceedings started against the petitioners under the Sindh Crimes Control Act, 1975 (hereinafter referred to as the Act) already disposed of by this Court by passing short orders.
(i) Ghulam Hussain v. The State Criminal Miscellaneous Application No.395 of 1994.
(ii) Syed Muhammad Kazmi v The State Criminal Miscellaneous Application No.589 of 1994.
(iii) Raees Khan Muhammad Rind v. The State Criminal Miscellaneous Application No.81 of 1994 and
(iv) Faqir Muhammad Rind v. The State Criminal Miscellaneous Application No.86 of 1994.
2. Mr. Nooruddin Sarki, the learned counsel for the petitioner has referred the cases reported as Haji Amir A.I Magsi v. The State 1984 PCr.LJ 1259 and Sohail Shahzad v. The A. C. And S. D. M., Karachi 1994 M LD 1100 in which the petitioners had been represented by me when I was serving as Advocate. The classical arguments advanced by the learned counsel were that his arguments for quashing the proceedings were the same as were done in those referred case. As the proceedings in those cases were quashed therefore, there could be no justification not to quash the proceedings in these cases too. Hence all the four petitions were allowed and the proceedings were quashed as prayed. I have however no hesitation to hold that the conduct of the learned S.D.Ms./Tribunals in Sindh, as observed by me in the past in the cases under the Act amounts to make mouths at the decisions of the High Court of Sindh on account of the reasons that although different Benches of this Court always quashed the proceedings by now and then yet the learned S.D.Ms./Tribunals (with no exception) always ignored these judgments. In support of this reality I would like to refer the following cases:----
(i) In Sohail Shahzad's case 1994 M LD 1100, proceedings were initiated by S.D.M./Tribunal Jamshad Quarters, Karachi.
(ii) In Aftab Alam alias Matoo's case PLD 1979 Kar. 645 (D.B.) proceedings were initiated by S.D.M./Tribunal (Central), Karachi.
(ii-A) In Krishan's case 1980 PCr.LJ 1198 proceedings were initiated by Tribunal and S.D.M., City Hyderabad.
(iii) In Haji Amir A.I Magirs' case 1984 PCr.LJ 1259 proceedings were initiated by S.D. M., Shahdadpur.
(iv) In Amir A.I and 22 others' case 1986 PCr.LJ 30 22 Criminal Miscellaneous Applications belonging to different districts of Sindh were disposed of by a common judgment.
(v) In Shah Nazar Khan's case PLD 1977 Kar. 582 (D.B.) proceedings were initiated by Tribunal/D.M.
Of District East, Karachi.
(vi) In Shero alias Sher Muhammad's case PLD 1978 Kar. 368 proceedings were initiated by S.D.
M./Tribunal, Kotri.
(vii) In Gulzar's case 1993 PCr.LJ 100 proceedings were initiated by S.D.M., Rohri.
(viii) In Tariq Aziz's case 1993 PCr.LJ 2499 proceedings were initiated by S.D. M./Tribunal, S.I.T.E., Karachi.
(ix) In Muhammad Aslam Gujar's case 1993 PCr.LJ 1389 proceedings were initiated by S.D.M./Tribunal, Jamshad Quarters, Karachi.
(x) In Muhammad Alam's case 1993 PCr.LJ 489 proceedings had been started by S.D.M., Liaquatabad, Karachi.
(xi) In Abdul Waheed Bajwa's case 1993 PCr.LJ 1382 proceedings were started by S.D.M./Tribunal, Airport Karachi.
(xii) In Sikar's case 1993 PCr.LJ 2292 proceedings were started by S.D.M./Tribunal, Rohri.
(xiii) In Afzal Khan's case 1993 PCr.LJ 455 proceedings had been initiated by S.D.M./Tribunal, S.I.T.E., Karachi.
(xiv) In Muhammad Yousuf's case 1993 PCr.LJ 1374 proceedings were started by S.D. M./Tribunal, Nazimabad, Karachi.
3. The Sindh Crimes Control Act was introduced in the Province of Sindh on 27th March, 1975 with laudable purposes to control anti-social elements by preventing them from repeating their anti- social activities which could affect the society at large. This Act could provide a sigh of relief to the law abiding citizens of this Province but most of the Police Officers used it as a weapon of torture under the protection of Tribunals established under section 3 of the Act in violation of the Human Rights for the last 20 years in the shape of stereotype reports submitted by police officials and the same type of procedure adopted by the Tribunals. It has become a routine that police submits a report that Mr. So and so supports offenders and his past shows' that he was challaned in so many cases. Due to his fear no private person is daring to give evidence against him and his remaining at large will be dangerous for the general public. Hence the report is submitted under section 14(4) of Sindh Crimes Control Act with a request to issue his warrant of arrest.
4. Now on the basis of the report if it is not defective the Tribunal is bound to issue a summons requiring the person complained against to appear if he is not in custody. In case the person is in custody or if there is apprehension of commission of an offence which cannot be prevented otherwise except by the immediate arrest of the said arrest then warrants for his production or arrest, as the case may be, can be issued by Tribunal instead of issuing a summon. In other words, issuance of non-bailable warrants in the first instance, if there is no apprehension of commission of an offence, would be without jurisdiction. Reliance in this regard can be placed on the case of Wahid Bux v. The State reported in 1977 PCr.LJ 2577 and on the case of Haji Amir A.I Magsi 1984 PCr.LJ 1259.
However it has been observed by this Court that mostly a warrant of arrest is issued at the request of the concerned police official in violation of section 5 of the Sindh Crimes Control Act, 1975 even though nothing is shown in the report that there is an apprehension of the commission of an offence. It becomes one of the main grounds to quash proceedings started by any S.D.M.
It is necessary to point out that an Authority taking cognizance of a case under section 3 of the Act, may he/she be District Magistrate, Additional District Magistrate, Sub-Divisional Magistrate or a Magistrate of First Class especially empowered by the Government in this behalf, but he/she shall take cognizance in capacity of a Tribunal because section 4 of the Act starts with the words "A Tribunal shall take cognizance ... "The word "shall" used with the word "Tribunal" is of great importance. At present, mostly the S.D.Ms. In Sindh are acting as Tribunals. But, it has been observed in most of the cases that the Police Officers submit their reports to the S.D.Ms. And not to the Tribunals. Similarly the S.D.Ms. Also put the seal of S.D.Ms. On their orders instead of putting the seal of Tribunal. Although such technicality may not be treated a sufficient ground to strike down all proceedings taken by the police officials or the S.D.Ms. Only on this ground yet such as objection, if taken by the learned counsel for the petitioner cannot be ignored. This point can be explained with the help of an example. Most of the First Class Senior Civil Judges in Sindh act as Assistant Sessions Judges as well as Rent Controllers. It would become a matter of laughing stock if any Rent Application is filed before any such Court with a title "Before the Honourable Assistant Sessions Judge ... " and the Court also puts a seal of A.S.J. While passing an order of ejectment or dismissing the said application. Such type of technical mistakes cannot be ignored by the Appellate Court or by this Court. On the strength of this explanation I am of the view that an Authority taking action in the proceedings under section 4 of the said Act, may she/he be a District Magistrate, Additional District Magistrate, Sub-Divisional Magistrate or a Magistrate of the First Class, specially empowered by Government in this behalf under subsection (2) of section 3 to act as Tribunal within local limits of his/her jurisdiction, the said Authority shall deal with the cases of the Sindh Crimes Control Act only in capacity of a Tribunal as is clear from section 3(1) of the Act. If any such Authority does not sign the order in capacity of a Tribunal then such an order may be stricken down by the High Court of Sindh for the purpose of quashing these proceedings. The summary of the above discussion is that sections 4, 5 and 6 are connected with one another in such manners that none can be separated from the other. These sections require the following steps for starting any proceeding under the Sindh Crimes Control Act.
1st step: A Police Officer, not below the rank of S.-I., has to make a report under section 4(b) of the Act against a person who is alleged to be involved in unsocial activities. This report must be completed in all respect as discussed earlier.
2nd step: When the report is submitted before the Tribunal in whose jurisdiction the person complained against resides or the act complained against is alleged to have been committed (section 4(a) of the Act), the Tribunal must see that the report of the Police Officer is complete in all respect. After this satisfaction the Tribunal shall proceed further.
3rd step: On receipt of the report and satisfaction, the Tribunal shall issue summon and not warrant. If there is need of issuing warrants, then reasons must be brought on record in writing.
Violation of any of the above step would justify the High Court to quash the proceedings.
5. Besides the illegalities or irregularities committed in respect of sections 3, 4 and 5 of the Act as pointed out in the preceding paragraph, section 6 of the Act is also usually violated in all such proceedings. This section contains the word "shall" thrice in it. A bare perusal of this section makes it mandatory that:--
(a) Every summon or warrants issued under section 5 shall be accompanied by a copy of the report, and
(b) such copy shall be delivered by the officer serving or executing such summons or warrants 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 the time and place of such acts;
(iii) the general repute of person complained or such other allegations made against him.
It has been mostly observed that neither the Police Officer who submits the report nor the Tribunals take pain to satisfy themselves regarding the requirements of the abovementioned proviso to section 6 of the Act. It has become a routine of Police Officers to submit such report before the Tribunal which contains vague and general allegations and lacks material particulars such as the time and the place of acts with which the alleged persons are charged with as per requirements of section 6(l)(ii) of the Act. Moreover, such reports have no mention of general repute of the person charged with as required under section 6(iii) of the Act.
6. Next comes the requirements of section 8 of the Act.
Before touching section 8 of the Act, it is necessary to point out that a Tribunal constituted under section 3 of the Act shall be deemed to be a Court and the proceedings before the Tribunal shall be deemed to be judicial proceedings (section 12 of the Act). It is also necessary to point out that although a Magistrate of First Class who is muchless in powers as compared to a District Magistrate yet, in capacity of a Tribunal, such Magistrate shall have all powers of a District Magistrate for the purpose of (i) issuing summons and warrants, (ii) compelling attendance of witnesses, (iii) production of documents, (iv) examination of witnesses or issuing commissions for examination of witnesses, (v) inspection of sites, and (vi) such other matters not provided for in this Act but may be necessary for completion of the inquiry (section 10 of the Act). For the purpose of collecting evidence to reach any conclusion the Tribunal has certain powers under section 13 of the Act which powers are not possessed by other Courts.
While construing section 8 of the Act, I am of the view that the Tribunal must keep before its eyes the requirements of sections 10, 12 and 13 of the Act which leave no doubt that enquiry to be conducted under section 8 of the Act must reflect judicial proceedings and not administrative measures. If the enquiry conducted by the Tribunal is devoid of the spirit possessed by judicial proceedings then the High Courts cannot put a seal of legalization on such enquiry except to quash the proceeding pending before that Tribunal. In the light of this dictum, section 8 of the Act can be fully understood with reference to its requirements.
Although subsections (1) and (2) of section 8 of the Act contain the word "shall" and subsection (3) contains the word "may" yet none of these subsections can be read in isolation of the other. Under section 8(1) of the Act, the Tribunal shall proceed to inquire into the truth of the report upon which action has been taken and to take evidence as may appear necessary. This enquiry cannot be made in the air without any evidence. The enquiry has to be done to find out the falsehood or truth of contentions of the report. Therefore, it would be totally illegal to accept the report as to be based on truth without holding an enquiry. On account of this reason if no enquiry has been done then any action taken by the Tribunal, in absence of any enquiry as required under section 8(1) of the Act, would be void.
Subsection (2) of section 8 of the Act further confirms the above proposition by the use of word "shall" that inquiry shall be made as may be practicable, in the manner for conducting trials and recording evidence in summons cases under the Code of Criminal Procedure, 1898.
7. It is only the result of inquiry under section 8 of the Act which warrants a Tribunal to pass an order under section 14 or section 15 of the Act. If on inquiry the Tribunal is satisfied that it is not necessary to require the person to execute a bond of good behaviour, it shall make an entry on the record to that effect and shall discharge the person and if he is in custody then the Tribunal shall release him as required under section 15 of the Act.
Contrary to the above, if on inquiry the Tribunal is satisfied that case of the person complained against is attracted by any of the 35 clauses, then the Tribunal shall require him to furnish a bond with one or more sureties for such period not exceeding three years and for such amount as may be specified to be of good behaviour as required under section 14 of the Act. It is most necessary to point out that section 14 of the Act contains 35 clauses most of which contain the words "frequently, in the habit of or habitually etc. "The word "habit" attracts a customary conduct of a person which arises from frequent petition or indulgence on such acts connoting depravity of character. Such character needs evidence and not mere allegation. In order to keep a check on habitually addicted offenders, the provisions for opening the history sheet and entering the names of such persons in surveillance register are provided for. It is, therefore, evident that mention of few cases in the report countable on finger tips would not justify any Tribunal to exercise its powers under section 14 of the Act. Similarly registration of large number of cases against any person may also be not a ground to start proceedings against him under the Sindh Crimes Control Act unless those cases attract any of the 35 clauses of section 14 of the Act and particularly when such cases are registered on the basis of general and vague allegations such as having no means of livelihood, thief, involved in gambling, desperate, dangerous etc. But without any evidence. Similarly if there is no nexus with the allegations made in the report to attract section 14 of the Act then all the steps taken by the Tribunal would be without any lawful authority Reference in this regard can be placed on the cases reported in PLD 1979 Kar 51 and PLD 1978 Kar. 368.
8. I have avoided to discuss other sections of the Act but it is necessary to point out that most of the sections of the Act contain the word "shall" and the implications of this word must not be ignored by any of the Tribunal. For the sake of brevity of the following few lines are referred hereinbelow from the Act:
(i) A Tribunal shall take cognisance section 4
(ii) On receipt of report, the Tribunal shall issue summon. section 5
(iii) The Tribunal shall proceed to inquire into the truth of the report.section 8(i).
(iv) Such inquiry shall be made section 8(2)
(v)It shall require section 14 (vi)It shall make an entry section 15
(vii) Shall be committed to prison section 16
(viii) Shall bind him section 18(1)
(ix) Shall be punished . section 18(2)
If the Tribunals ignore the implications of word "shall" while exercising their powers, the High Court would be bound to strike down all their acts.
9. On the basis of this discussion made hereinabove I perused the record and proceedings of the petitions in hand which unfolded that:--
(i) In the case of Ghulam Hussain (Criminal Miscellaneous 395 of 1994), the report of S.H.O. Bakrani (Syed Amjad A.I Shah) contains mention of several cases out of which, more or less 15 cases were registered one after the others without any break from F.I.Rs. Nos.2/94 to 23/94 in a serial but without any detail of time and places of the offences to be mentioned there or the fate of the pending cases.
(ii) In the case of Syed Muhammad Kazmi (Criminal Miscellaneous NO-589 of 1994) the report of S.H.O. Contains mention of 7 cases without any other detail as required by different provisions of the Sindh Crimes Control Act.
(iii) In the case of Raees Khan Muhammad Rind (Criminal Miscellaneous No.81 of 1994) the report of S.H.O. Muhammad Younus Jat of Police Station Shah Karim contains mention of 5 cases.
Proceedings in two cases were quashed. One case resulted in acquittal. One case is still pending while the fate of fifth case is not known to anyone. This situation does not attract the Sindh Crimes Control Act to be brought in operation against the petitioners, and
(iv) In the case of Faqir Muhammad (Criminal Miscellaneous No-84 of 1994) the S.H.O., Police Station Tando Muhammad Khan submitted a report which contains mention of only two cases without any information about their fate.
10. By my short orders I had allowed the petitions by quashing the proceedings on different dates and these are the reasons for passing those orders.