ASSADULLAH Versus SUB-DIVISIONAL MAGISTRATE/ TRIBUNAL, RATODERO

1. This matter is fixed for regular hearing today. In this petition under section 561‑A, Cr.P.C. filed by the petitioner, the proceedings pending and orders passed in case No. 140/87 before S.D.M~. Ratodero have been challenged. I have heard learned counsel and learned A.A.‑G. Pursuant to the order passed on 26‑9‑1987, Mr. Abdul Razzaq Qureshi, S.D.M./Tribunal Ratodero is also present in person. R & P has also come.

2. Perusal of the R & P of Case No. 140/87 shows that an order under section 8(3)(b) of the Sind Crimes Control Act, 1975 had been passed by the learned S.D.M. to the effect that the petitioner be kept in detention from 1‑7‑1987 to 30‑8‑1987. Admittedly the inquiry has not been concluded but even after the expiry of the detention of two months, the petitioner has not been released. Under section, 8(3)(b), pending the inquiry, instead of taking a bond for appearance, S.D.M./Tribunal can pass an order for detention of the person complained against for such period as may be specified in the order of the S.D.M./Tribunal or till the conclusion of the inquiry. There is, however, a proviso in that subsection and that is to the effect that such detention shall not exceed two months unless his case has been referred to the Commissioner and the Commissioner has, for reasons to be recorded in writing, agreed to such detention for a further period not exceeding four months. On a question from the Court, learned S.D.M./Tribunal states that the matter had been referred to the Commissioner but for want of papers the Commissioner has not agreed to the extension of the detention period. On a further query from the Court as to why the petitioner had not been released after the expiry of the detention period of two months on 30‑8‑1987, the reply of the learned S.D.M. was that as no surety had been given the applicant had not been released. In view of the clear provisions of section 8 of the Sind Crimes Control Act, 1975, the petitioner could not have been detained by the learned S . D . M . / Tribunal after 30‑8‑1987 but he should have been released forthwith on 30‑8‑1987 and then the inquiry could have been concluded and after the conclusion of such inquiry further action could have been taken under section 16 of the Act of 1975. I am, therefore, of the view that even if the cognizance has been taken by the learned S.D.M./Tribunal properly, the detention of the petitioner after 30‑8‑1987 is wholly illegal and not permitted by law.

3. On perusal of the report of the S.H.O. on the basis of which action and proceedings have been taken by the learned S.D.M. it follows that even the mandatory requirements of section 6 of the Act 1975 have not been complied with. There are general and vague allegations about the petitioner which may, by some stretch of imagination, comply with clause (iii) of section 6 of the Act, 1975, but clauses (i) and (ii) of section 6 had not been complied with by the S.H.O. i.e. acts with which the person complained against is charged have to be stated specifically and then the details of times and places of such acts have also to be specified in the report made by the S.H.O. The report not complying with the mandatory requirements of section 6 of the Sind Crimes Control Act, 1975, the learned S.D. M./Tribunal should not have entertained such report. The actions and proceedings taken by the learned S.D.M./Tribunal on such incompetent and illegal report, as a necessary consequence, are also illegal and no effect.

4. In the circumstances Cr.Misc. Application 944/87 is allowed and the proceedings taken against the petitioner and the orders passed against him in case No. 140/87 in the Court of S.D.M. Ratodero under the Sind Crimes Control Act. 1975 are hereby quashed. The petitioner will be released forthwith today before 5‑00 p.m. This order has been passed in the presence of Mr. Abdul Razak Qureshi, I learned S.D.M./Tribunal Ratodero, who has noted the same.

5. The learned S.D.M. states that he has not gone through even one of the various judgments passed by the superior Courts of this country on the interpretation of the various provisions of the Sind Crimes Control Act, 1975. On the points involved in the present petition, Mr. Ali Nawaz Ghanghro. learned counsel for the applicant, has referred to five judgments of this Court reported in 1987 PCr.LJ at pages 55, 335, 1231, 1346 and 1387. Photostat copies of these judgments are being supplied to the learned S.D.M. today by Mr. Ghanghro. It is expected that the learned S.D.M. will go through these judgments of the Sind High Court and in future if any case comes up before him under the Sind Crimes Control Act, 1975, he will take action and pass orders in such cases in the light of the principles laid down in the aforesaid judgments.

6. M.Y.H./A‑171/K Proceedings quashed.