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Criminal Revision Application No. 423 of 1965, decided on 16th January 1967.

Ss. 107, 112 & 117‑ Security for keeping peace‑Conditions to be imposed not to be harsh and onerous though they may not be illegal or may be contemplated by law‑Persons called upon by District Magistrate to furnish sureties each in sum of Rs. 50,000‑‑Terms of order, held, onerous‑Notices under S. 111 ordered to be issued to such persons why they should riot furnish sureties in sum of Rs. 5,000 each to maintain peace for one year.

State v. Hyder P L D 1963 Kar. 673 and Bahadur and another v. The State P L D 1964 Kar. 85 ref.

Azizullah Shaikh for Applicants.

Qazi Essa and Murtuza Husain for Respondents.

Date of hearing: 11th January 1967.

'The applicants arc aggrieved with the order dated 26th of August 1965 passed by the District Magistrate of Kachi, directing that notices be issued against the two applicants and opponents 4 and 5, to show cause why each of them should not furnish surety each in the sum of Rs. 50,000 for a period of one year.

(2) The following fact, are relevant for purposes of this application. The opponent No.4, Mst. Rehmat Khatoon is the widow of one Sardar Gul Muhammad Magsi, who in turn was the son of Nawab Kaiser Khan Magsi. On the death of Nawab Kaiser Khan, a suit was filed for the partition of leis lands, which was prosecuted by Mst. Rehmat Khatoon but ultimately resulted in a compromise owing to the pressure of the elders of the locality according to Rehmat Khatoon. The compromise was effected with Rehmat Khatoon and her minor son Attaullah Khan on rune hand and Mahboob Ali Magsi, father of respondent No. 4 on the other on attaining majority, Attaullah Khan Magsi challenged the compromise, and appeared to the High Court, in consequence of which the compromise was canalled and an interim injunction wits ordered to issue against the defendants in that suit. In furtherance 6f the compromise, Rehmat Khatoon was given, cash and agricultural land which she continued to hold, and which consisted of

(1) Karaz with land situated in the village of Qabar in the tehsil of Thul:

(2) Land measuring 1,820 acres situated in the tehsil of Shahdadkot, in the district of Larkana; and

(3) Land in the tehsil of Tamber.

The suit was pending before the Deputy Commissioner, Kalat, and it is now stated at the bar, that the matter is now before the D: C. of the newly‑created district of Kachi. After the interim injection hail been granted, Rehmat Khatoon and Mir Attaullah Khan made an application to the District Magistrate of Kachi that on 16‑11‑1954 this High Court had granted an interim injection in spite of which respondent No, 4 Saifullah Khan, his wife and sister‑in‑law, who were influential people were interfering kith her possession of the suit land and had harassed and insulted her with the assistance of the two applicant and opponent No. 5 who belonged to the Magsi tribe. In J supporting statement made by Rehmat Khatoon in the proceeding she stated that after her son Mir Attaullah Khan had filed the suit challenging the compromise and in consequence of which she had been in possession of the suit land, the harassment by the applicants and two of the opponents continued, and at their instigation, the water of one Bardwani Karaz had been stopped, with the result that her standing crops had been badly damaged, arid that she apprehended danger to her own life and that of tier son, in that her property may be forcibly taken o; of, praying that the two applicants and opponents Saifullah Khan and Sadoro Magsi be bound down to maintain the peace be of good behaviour, and furnish sureties for this purpose. This statement was recorded on the 24th of August 1965, and on the following day the impugned order was passed.

3. The grievance against this order is that the two petitioners resided outside the jurisdiction of the District Magistrate of Kachi, and that the conditions imposed in it, namely of each of the person concerned having to furnish surety in the sum of Rupees fifty thousand, was onerous.

4. Mr. Azizullah Shaikh, learned counsel for the petitioner teas urged that the two petitioners do not reside at or near about the land in dispute in suit between the panics, and that they are not concerned in any way with the property in dispute. Emphasis has been laid that in the statement of Rehmat Khatoon of 24th August 1963, the contention is that the two petitioners Dil Murad and Gulab are the two "workers" of Mir Saifullah Khan and together with him, interfere with Rehmat Khatoon's possession of the: suit land. It was also urged that since the filing of the application and impugned order and 'without having to furnish sureties, no danger has accrued to Rehmat Khatoon and her son Mir Attaullah Khan and that even if ultimately final orders had been passed by the District Magistrate, Kachi, he could have r bound the applicants and their confederates for a maximum period of one year, which has now passed, and that, therefore, no cause of action has arisen for action against the applicants, and that the proceedings should therefore be quashed.

5. Two affidavits have been filed in this Court, the first by applicant Dil Murad dated 1st of November 1965, and the second by Gulab Khan dated the 30th of October 1965, both of them stating that they had no concern with the land situated in Deh Thul or Tehsil Tamber, that they are neither Kamdars nor Karao nor lessees nor in any way concerned with the cultivation of the suit lands. In addition petitioner Gulab Khan has produced an identity card for members of the Electoral College of Pakistan in 1964, to show that he is a resident of Piaro Khan Tehsil in a District of Larkana. Dil Murad has iii addition produced a certificate from the Mukhtiarkar of Shahdadkot that he is working, and is a permanent resident of ShahdadKot.

6. I have also heard Mr. Qazi Issa for opponents Nos. 2 and 3 and Murtaza Hussain for the State.

7. It must be stated at the very outset that the petitioners have come to Court without the notice under section 112, Cr. P. C., the impugned order having been served on them, and it is urged that in the circumstances the order of the learned D. M. of Kachi is without jurisdiction, and should be quashed. It is conceded at the bar by Mr. Qazi Issa for oppon ents two and three and by the learned counsel for the State, that the impungned order in its terms is onerous, and it is contended by both the learned counsel appearing for the opponents that the trial Court is a proper forum for the consideration of the grounds other than the onerous terms of the impugned order. I feel that there is force in these contentions for it would be immaterial at this stage for this Court to inquire into the actual places of residence of the two petitioners and also whether even though they may not be rodent at or round about the suit land, they are workers in the sense that they are the henchmen or supporters or strong man of Mir Mahboob Ali Khan Magsi and whether he coerced or‑ harassed Rehmat Khatoon and her son opponent No. 3. I therefore propose to leave these circumstances for consideration of the learned District Magistrate, Kachi who has passed the impugned order

8. The terms of the impugned order are clearly onerous. The two petitioners and opponents 4 and 5 have each bee called upon to furnish sureties each in the sum of Rs. 50,000 It has been held time and again by these Courts that for the, a purposes of peace and order under Chapter VIII Proceedings, although conditions may be imposed, they should not be onerous and harsh, even though they may not be illegal and or contem plated by law. In State v. Hyder (P L D 1963 Kar. 673) a Division Bench of this Court on a consideration of conditions to be imposed under Chapter VIII of the Cr. P. C. under sections 112, 117 and 110, where the trial Court had required sureties to be of a certain class and financial status, paying certain amount of land revenues, and Fee residing within certain geographical limits and being in addition in position to control the activities of the person concerned and proceeded against, held that although these conditions were not illegal, they were in the circumstances 'of the case, not only onerous and harsh, but difficult of performance; In the citation in point, the initial order under section 112, Cr. P. C. had been made for period of 12 months during which the person concerned had continued to remain in custody for 1b‑17 months pending proceedings, it being finally decided that the orders initially passed be quashed. In Bahadur and another v. The State (P L D 1964 Kar 85) Raymond, J. sitting singly, also considering a matter in similar conditions under sections 110, 112 and 117, Cr. P. C., held that the condition imposed, though not illegal and contemplated by law, were harsh and onerous.

9. In the present case, as earlier stated, the two petitioners and respondents 4 and 5 have not been served with the notice of the impugned order under section 112 and the matter remains at that stage. The additional consideration for the trial Court will he, as urged by Mr. Qazi Issa for opponents 2 and 3 whether under subsection (2) of section 117, Cr. P. C., proceed ings shall not be taken under this section, unless either the person informed against, or the place where the breach of peace or distrubance, is apprehended, is within the local limits of such Magistrate's jurisdiction. It is further contended that even though two petitioners and the opponents 4 and 5 do not or may not reside within the jurisdiction of the District Magistrate, Kachi, action can be taken against these persons if interference front them is apprehended at a place which is within the local limits or jurisdiction of the learned Magistrate.

10. For these reasons I allow the revision to the extent that the impugned order is onerous and harsh in its terms, and modify it to the extent that the notices under section 112 do issue to the petitioners and opponents 4 and 5 why they should not furnish sureties each in the sum of Rs. 5,000 to maintain' peace and be of good behaviour for a period of one year.

11. The result is that the matter will now go back to the Court of the learned District Magistrate, Kachi, with the modifi cation as detailed earlier, and with a further direction that the matter do proceed and be disposed of expeditiously.

Petition partly allowed.

Case remanded.

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