HUSSAIN BUX Versus DISTRICT MAGISTRATE, LARKANA

1. ABDUL QADIR HALEPOTA, J.‑This constitutional petition is directed against the proceedings initiated against one Qalandar Bakhsh (herein after referred to as the detenu) under the Sind Crimes Control, Act 1975 (hereinafter referred to as the said Act).

2. The allegations against the detenu, are contained in the complaint under section 14 of the said Act, filed by Station House Officer, Town Police Station, Larkana on 24th April 1975. It is alleged therein, that the detenu is disorderly in public or behaves riotously in public by entering into affrays or otherwise disturbs public peace ; that he is in the habit of making livelihood, or extorting money or other property or receiving any con cession or favour from any one by any form of intimidation or influence ; that he frequently trespasses upon or illegally takes possession of private property by show of force and retains such property by force and lastly that he is so desperate and dangerous as to render his being at large without security hazardous to the community. In support of these allega tions five instances were quoted in the body of the said complaint. The first four instances related to the registration of first information reports against the detenu under sections 324, 326, 307, 302 of the Pakistan Penal Code and under section 13‑D of Arms Ordinance, during a period commencing from 5th April 1971, to 3rd April 1975. It appears that during this period the detenu was named as an accused in Crime Nos. 63 of 1971, 177 of 1973, 27 of 1975 and 43 of 1975. The fifth instance related to an incident which took place on 28th February 1975, at Station Road, Larkana at 7‑00 p.m., when the detenu, who was drunk, was disorderly in public and he was issuing threats to the public to disturb their peace. Out of the six witnesses named in the complaint, only two were private persons. The remaining four witnesses belonged to the Police Department.

3. We have heard Mrs. Salima Nasiruddin the learned counsel for the petitioner and Mr. Abdul Hafeez Lakho the learned Additional Advocate - General for the State.

4. The only contention raised by the learned counsel for the petitioner was that none of the alleged acts of detenu fell within any of the clauses of section 14 of the said Act so as to warrant an enquiry against him under the said Act.

5. We have noticed that the allegations of general nature contained in the complaint filed against the detenu are almost verbatim reproduction of clauses (vi), (viii), (xviii), (xxxiii) and (xxxiv) of section 14 of the said Act. The important question which requires consideration is whether, the acts complained against the detenu have any nexus with the above allegations and bring his case, within the scope of any of the clauses of section 14 of the said Act. So far as cases under various provisions of Pakistan Penal Code and under Arms Ordinance are concerned, they do not fall within any of the above five clauses or any other clause of section 14 of the said Act. The learned Additional Advocate‑General contended that since the detenu, was named as an accused in crimes registered under sections 324, 326, 307 and 302 of Pakistan Penal Code, he was covered by clause (vi) of section 14 of the said Act. We do not see any force in this submission. Clause (vi) deals with a person who is frequently drunk or disorderly in public or behaves riotously in public by entering into affrays or other wise disturbs public peace. In order that this clause be made applicable, it is to be shown that the person complained against was either frequently drunk or disorderly in public or behaved riotously in public, by entering into affrays or otherwise disturbed public peace. When two or more persons by fighting in a public place, disturb the public peace, they are said to commit an affray. Section 160 of the Pakistan Penal Code pres cribes punishment for committing affray. We are of the view that none of I the acts of the detenu in respect of which reports regarding substantive offences under Pakistan Penal Code, were registered, fall within clause (vi) and that none of these acts, have any nexus with the allegations made against him. We are then left only with a solitary incident which took place on 28th February 1975, at Station Road, Larkana. Even if it be assumed, that this allegation is true, yet it cannot be said that this single act of the detenu, would bring his case within clause (vi) which as stated herein above, would come into play only if a person was frequently drunk or disorderly in public.

6. In view of the foregoing reasons, we hold that the proceedings taken against the detenu are without lawful authority and consequently of no legal effect. We therefore quash the proceedings pending against the detenu under the said Act. s. A. H. Proceedings quashed.