ASIF NOMAN vs GUL SHADI KHAN KHATTAK and another

' ATTAULLAH KHAN, J.---Asif Noman petitioner has filed this criminal revision under section 19 of the West Pakistan Control of Goondas Ordinance, 1959 read with section 561-A, Cr.P.C. Against the order dated 23-11-2009 passed by the learned Judicial Magistrate D.I. Khan, whereby he has been bound down under sections 13/14 of the Ordinance ibid to furnish surety bond of Rs,50,000 with two sureties each in the like amount for keeping peace and tranquillity for a period of one year, in default to suffer one year imprisonment.

2. The allegation against the petitioner is that he was running a gambling den within the premises of Police Station City D.I. Khan due to which he was arrested on 22-11-2009 by the respondent/S.H.O.

On 23-11-2009, when he was produced before the Judicial Magistrate for obtaining judicial remand, a complaint under sections 13/14 of the aforesaid Ordinance was filed before the Senior Civil Judge/Judicial Magistrate so as to bind him for three years for keeping good behavior, who without fulfilling the requisite formalities served him with a notice under section 112, Cr.P.C. And without explaining its legal position took his signature thereon when he was in police custody and showed that he was willing to execute surety bond which followed the passing of the impugned order.

3. The thrust of the arguments of the learned counsel for the petitioner is that the lower Court has failed to comply with the requirements of law and, therefore, the impugned order is illegal.

4. I have carefully examined record of the case and anxiously considered the arguments advanced at the bar.

5. Section 5 of the West Pakistan Control of Goondas Ordinance, 1959 is relevant in this regard which provides that the complaint shall briefly contain all the details of time and place of such practice and statements of relevant general reputations of the person.

6. The complaint reveals that this provision has not been complied with in toto. Moreover, the petitioner has been condemned unheard. Section 14(2) of the Ordinance contemplates that opportunity of hearing must be given to the petitioner before passing order. The entire record is silent in this regard which could prove that opportunity of hearing was given to the petitioner. The impugned order has been purportedly passed under sections 13/14 of the West Pakistan Control of Goondas Ordinance, 1959, according to which the petitioner should have been heard before passing the impugned order. An order passed in violation of this provision was declared illegal in the case of Mian Muhammad Ayub v. State reported in PLD 1982 Peshawar 130, wherein it has been held that:-- "That impugned order suffers from another legal infirmity too, namely, an order was passed against the petitioner under section 14 subsection (1) clauses (e) and (i) but no opportunity of being heard as contemplated by section 14(2) of the Ordinance was afforded to the petitioner before passing this order. Such an order was nullity in the eye of law as observed in Ch. Ghulam Muhammad v. The State and 3 others (PLD 1969 Lah. 767), Haji Muhammad Hussain v. The State (PLD 1970 Pesh. 58) and Abdul Samad alias Dadda v. Khan Iqbal Ahmad Khan Lodhi, PCS District Tribunal. Lahore and another (PLD 1972 Lah. 41)" .

7. If viewed the case of the petitioner in the light of the above observations, one would reach to the conclusion that the process of Court has been abused. The object of West Pakistan Control of Goondas Ordinance, 1959 is not to harass people and use it as an instrument of operation against the person for ulterior motive. The main aim of the Ordinance was to control disorderly people and take action against them who are known to be Goondas.

8. I have come across nothing in this regard to show that either the petitioner was a known Goonda or has acted in such a way to be determined as Goonda. The Court is required to satisfy itself before adjudging a person to be Goonda after recording evidence. In case of no evidence, there can be no satisfaction of the Court for declaring a person as Goonda. There is no evidence in this case. The record reveals that a complaint was produced to the Court on 23-11-2009 by the S.H.O.

Police Station City, D.I. Khan and the Court bound down the petitioner.

9. In the complaint, as provided in section 5 of the Ordinance, the details regarding time and place of such practice and statements of relevant general reputation of the petitioner are not provided.

This complaint is in violation of the prov. Ion of section 5 of the Ordinance and is thus not maintainable.

10. No evidence was recorded though two witnesses were mentioned in the complaint. No opportunity has been afforded to the petitioner for declaring him as Goonda. Therefore, the impelled order being patently illegal is set aside and the revision petition is accepted accordingly.