Find a Lawyer

Criminal Reference No. 31 of 1968, decided on 8th April 1969.

Ss. 107, 112 & 117(3) Magistrate in inquiry under S. 107 calling upon opposite party to show cause why he should not furnish security and execute bond in amount of Rs. 20,000‑Opposite‑party instead of making appearance and showing cause rushing to superior Courts com plaining that amount of bond was excessive and therefore order illegal and should be quashed‑Held : Order passed was one under S. 112 and not under S. 117(3) and aggrieved party should have made appearance before trial Court and objected there that security demanded was excessive‑Rushing straight .to superior Courts‑Not justified.

State v. Hyder P L D 1963 Kar: 673 rel.

Kazi Akhtar, A. A.‑G. for the State.

Shahabuddin for Respondents Nos. 1 and 3.

Date of hearing :. 3rd April 1969.

The facts relevant to this reference are that a case has been registered in the Court of S. D. M., Civil Lines, Karachi under sections 107 and 117, Cr. P. C. against the applicants and by his order dated 8th September 1967 the S. D. M. called upon the applicants to show cause why each of them should not execute a bond in the sum of Rs. 20,000 with one surety in the like amount for the period of one year to keep peace under section 107, Cr. P. C. Instead of appearing and showing cause against this order, the applicants, who are Dhobis, filed an application in the Sessions Court, Karachi in which they prayed that the question of the legality of the S. D. M.'s order be referred to this Court with recommendation that the said order be quashed as onerous and illegal. By his order dated 27th March 1968 the Additional Sessions Judge, Karachi, who heard this application, held that the security demanded from the applicants in the impugned order was "highly excessive", therefore, he has made a recommendation to this Court for the modification of the said order of 8th September 1967 and has allowed the applicants to remain on bail in the sum of Rs. 2,000 each.

2. In support of his submission, learned counsel for the applicants has stated that the applicants are Dhobies, therefore, the order to furnish security in the sum of Rs. 20,000 wigs not an order, which the applicants, in view of position in life, would be able to comply with, therefore, on the basis of a judgment of this Court in State v. Hyder (P L D 1963 Kar: 673) learned counsel argued that the order was illegal and should be quashed. On the other hand the Additional Advocate‑General opposed the reference on the ground that the application was premature and that the applicants should first exhaust their remedies before the S. D. M.

3. The order of the S. D. M. is an order under section 112, Cr. P. C. and not under section 117(3), Cr. P. C. and there is no reason why the applicants should not first seek relief in the trial Court. Learned counsel for the' applicants was apprehensive that unless the order of the S. D. M. was quashed, similar orders might later be passed against the applicants under section 118, Cr. P. C. But as I have observed, the applicants are entitled to show to the S. D. M. that in view of their situation in life, the security demanded in the order of 8th September 1967 was inconsistent with the principles laid down by this Court in State v. Hyder. Further if any order is passed under section 118, it will only be after hearing the applicants. The apprehension of the applicants are; therefore, not well founded. There is no merit in this reference, which is rejected, subject to the observations made herein.

Reference rejected.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.