MUHAMMAD ISHAQ Versus TRIBUNAL AND A. D. M., LARKANA

Z. A. CHANNA, J. ‑These three Constitutional Petitions seek. to challenge separate though practically identical orders passed, by the learned A. D. M. and Tribunal, Larkana, on 10th Feb ruary 1973, under section 5 of the West Pakistan Control of Goondas Ordinance, 1959, hereinafter referred to as the Ordinance, and the proceedings instituted by the Tribunal under the Ordinance against the three persons on whose behalf these petitions have been filed, hereinafter referred to as the detenus. The impugned orders and the proceedings in each case have been passed and initiated on the basis of identical information laid before the Tribunal by Mr. Inayatullah, Inspector of Police, Larkana. That information, apart from containing general and vague allegations that the detenus were disorderly and law disrupting persons and entered into affrays, particularised an incident, which is said to have occurred on 8‑2‑1973, in which it is alleged that they used abusive language to the public, uttered threats, caused fear and alarm to the general public, circulated false and alarming statements and rumours and, indulged in criminal intimidation. It may be mentioned that this incident ,vas the result of another incident which had occurred in Larkana Town a day earlier in which a shopkeeper is said to have been robbed. As‑ the Police had bean unable to apprehend the culprits, some of the shopkeepers were unhappy with the Police and the District Administration and to show their resentment against the antipathy or want of efficiency of the Police, a strike and procession was organized on 8‑2‑1973. According to the information laid before the Tribunal by the Inspector, quite a few of the shop keepers were reluctant to join the procession and close down their shops but the organizers of the procession, including the three detenus, not only ,extended threats to the reluctant shopkeepers but also forcibly entered their shops, hotels etc., broke their furniture, damaged their stocks and trade articles and forced them to join the procession. It may also be pertinent to note at this stage that an F. I. R. was lodged in respect of this very incident by the Police on the same date at 2 p.m. and as a result thereof the three detenus were arrested by the Police, but they were ordered to be released on bail by the learned Sessions Judge, Larkana, on 10‑2‑1973. It was on the same day that the Police laid information against the three detenus and 10 others with the Tribunal under the Ordinance and on the basis of that information they were arrested and produced before the Tribunal. Their request for grant of bail was rejected by the Tribunal on the ground that they were dangerous type of criminals and their remain ing out of jail would be hazardous to the public. Another circumstance which seems to have weighed with the Tribunal in rejecting their bail appli cations was that if set at liberty they were likely to tamper with the prosecution evidence. It was in these circumstances that the three detenus approached this Court in exercise of its constitutional jurisdiction.

2. We have heard Raia Haq Nawaz, who appears for all the three ,detenus, and also the learned Additional Advocate‑General. It has been urged by Raja Haq Nawaz that in taking cognizance of the complaint against the three detenus the learned Tribunal has acted in violation of the provisions of section 5 read with section 13 of the Ordinance and hence its orders in this behalf as well as the proceedings taken against the detenus by the Tribunal are invalid and without lawful jurisdiction. His precise argument is that a reading of section 5 together with section 13 of the Ordinance clearly indicates that action under the Ordinance cannot be taken on the basis of a solitary or single act or even two or more acts commit ted in the course of a single transaction, as this law is meant to apply to and control anti‑social elements and persons who generally or habitually commit infringement of laws, harass the public and commit the unlawful practices enumerated in section 13 of the Ordinance. In order to appreciate this argument it is necessary to refer both to the provisions of section 5 as well as section 13 of the Ordinance. Subsection (1) of section 5 of the Ordinance empowers the Tribunal constituted under the Ordinance to take cognizance of a case under the Ordinance against a person only if such person commits within the jurisdiction of the Tribunal any of the practices specified in section 13. Subsection (2) of section 5 lays down the nature of and particulars to be contained in the information which is the foundation for taking cognizance against the person complained. Such information is to contain among other matters‑

(a) the practices with which the person complained against is charged ;

(b) instances with details of time and place of such practices ; and

(c) a statement of any relevant general repute in which such person is held and any other ground on which the information is based.

A bare reading of the above provisions clearly suggests that it is not a single act or even two or more acts committed in the course of a single. transaction which can form the basis of any proceeding under the Ordinance. The object of the Ordinance, as we have been able to understand, appears to be to protect the society from persons who indulge in the nefarious and undesirable activities enumerated in section 13, by either requiring them to furnish a bond for good behaviour, or if necessary, even by detaining them in custody. The wording of the section clearly seems to suggest the exclusion of action under the Ordinance in respect of any solitary unlawful or illegal act which has prudently been left to be dealt with under the ordinary law. Reference may also be invited in this connection to the Preamble of the Ordinance and the object as set out therein, which is to consolidate and amend the law relating to the control of disorderly persons commonly known as Goondas. We find it impossible to accept the propo sition that a single lapse on the part of an individual, howsoever, improper or even illegal it may be, will justify in declaring him to be a Goonda under the Ordinance or bring him within the ambit of the Ordinance. The very term "Goonda" or "Disorderly person" would seem to suggest that the normal and usual conduct of the person to whom it is applied is such that he is excluded from desirable or useful groups of respectable members of the community and that he has habitually or willingly adopted a course of conduct which gives annoyance to or causes or tends to cause fear or alarm to the , general public or tends to create a law and order situation. This inference gains further support when we analyse the various grounds ~7 mentioned in section 13 of the Ordinance on the basis of which alone the Tribunal is entitled to declare a person to be a Goonda. Most of the clauses in that section employ words like "habitually", "frequently", "generally" or words of similar import. It is true that clauses (m), (n) and (o) of section 13, which could perhaps be pressed into service against the detenus, do not use the words habitually, generally, or frequently, but that does not mean that these clauses contemplate a single act or single instance or that they suggest that a single act or instance could be made the basis of proceeding under the Ordinance. Although each clause of section 13 deals with a different type of anti‑social activity, we consider that it would be appropriate to read the various clauses together to properly appreciate and co‑relate their effect. Clause (n) refers to a person who "behaves riotously in public by entering into affrays and causing fear or alarm to the public." The use of the word "behaves" suggests to us not an unrelated or a single act but a course of conduct which in turn would mean several instances or acts. Clauses (m) and (o) similarly refer to a series of acts or general conduct and not any solitary or unrelated act. The keyword "indulges" appearing in clause "(o)" also has a similar import.

3. The learned A. A.‑G., who appears for the State in all the three petitions, has conceded that apart from the material in the information laid before the Tribunal by the Police, which we have indicated refers to a solitary instance, there is no other material available to show that any of the detenus have been behaving in a riotous manner, or endangering the public peace or been indulging in criminal intimidation.

4. We are thus inclined to the view that the information laid by the Police before the Tribunal against each of the three detenus does not come within the mischief of section 13 of the Ordinance nor is it in compliance with the mandatory provisions of section 5 (2) thereof. The cognizance taken by the learned Tribunal and the proceedings initiated by him are thus, in our view, without jurisdiction and lawful authority. We may also mention at this stage that the other 10 persons who had also been proceeded against by the Police before the Tribunal under the Ordinance in respect of the very same incident and on the basis of the same allegations have been let off by the Tribunal as the cases against them were withdrawn under the orders of the District Magistrate. A photostat copy of the with drawal application and the order of the Tribunal thereon has been filed by the learned A. A.‑G. This would also suggest that the District Adminis tration had come to realize that the persons complained against were not persons who ought to have been proceeded against under the Ordinance nor in fact could the provisions of the Ordinance be rightly invoked against them at least so far as their involvement in the incident of the 8th of February 1973 is concerned.

5. For the foregoing reasons we hold that the cognizance taken under the Ordinance against the three detenus by the Tribunal and the proceed ings initiated by the Tribunal against them are without lawful authority and jurisdiction. We would accordingly allow the petitions but with no order as to costs.

K. B. A. Petition accepted.