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Criminal Reference No. 39 of 1973, decided on 8th July 1976.

----S. 117(3) read with S. 340 and Constitution of Pakistan (1973), Art. 10(1)-Security for keeping peace-Magistrate, while examining witnesses on oath, not affording person proceeded against opportu nity to cross-examine them-Procedure adopted by Magistrate totally derogatory to very basic and fundamental rules of judicial process- Order of Magistrate under S. 117(3), Cr. P. C. founded on such evidence, held, must necessarily be struck down.-[Security for keeping peace].

State v. Ghulam Ali P L D 1975 Kar. 90 ref.

Nooruddin Sarki for the State.

Nemo for Respondents.

Date of hearing : 8th June 1976.

This is a reference under section 438, Cr. P. C., by First Additional Sessions Judge, Larkana, recommending the quashment of the interim order dated 8-7-1972 passed by the Sub-Divisional Magistrate, Larkana under section 117 (3), Cr. P. C., whereby the learned Magistrate had directed respondents Muhammad Jaffer, Gul Hassan, Ali Gauhar. Raza Muhammad, and Ghazi to execute a bond in the sum of Rs. 5,000 with one surety in the like amount for keeping peace till the conclusion of enquiry under section 107, Cr. P. C.

2. A police report by S. H. O., Ratto Dero was submitted in the Court of S. D. M., Larkana against the aforesaid persons on 5-7-1972 along with the respondent in custody. The p dice Report stated that Gahi Khan son of Karam Khan Jalbani had reported to the police that he had land in Deh Dero whic'a was cultivated by him. It was alleged by Gahi Khan that on 4-7-1972 at about breakfast time while he was at his lands, respondent Ghazi and Raza Muhammad came there for cutting grass. On this the complainant prevented them which annoyed them and they went away threa tening him. Thereafter, when the complainant was returning alongwith witnesses the rest of the respondents armed with lathis approached biro and remonstrated with him as to why he had prevented Ghazi and Raza Muhammad from cutting grass. They assaulted the complainant and threatened him with dire consequences but on account of intervention of witnesses the complainant vas saved. Based upon this incident the police report showed apprehension of breach of peace.

3. The learned Magistrate appears to have been out of station on tour therefore the case was put off to 8-7-1972. On 8-7-1972, the respondents were produced in custody before the learned Magistrate and he pasted an order under section 112, Cr. P. C. Learned Magistrate immediately there after entertained the application of S. H. O., Ratto Dero under section 117(3), Cr. P. C. and recorded the evidence of witnesses Nawab, Gahi, and S. H. O. Abid Ali Shah. On the same day the learned Magistrate passed the impugned order under section 117 (3), Cr. P. C. directing the respondents to execute a bond in the sum of Rs. 5,000 with one surety liable in the like amount for their keeping peace till the enquiry under section 107, Cr. P. C. was concluded. The surety was required to be a respectable person belonging to land owning class paying land revenue not less than Rs. 500 per annum, and residing within the radius of five miles from the ordinary residence of the respondents. The respondents being unable to furnish the required surety were remanded to custody.

4. Being aggrieved by this order the respondents moved the Court of Session, Larkana under section 435/438, Cr. P. C. for making a reference for quashment of the proceedings. By his order dated 19-2-1973 the learned Additional Sessions Judge, Larkana has recommended the quashment of the order under section 117 (3), Cr. P. C. passed by the learned Sub-Divisional Magistrate, Larkana.

5. The only ground upon which the learned Additional Sessions Judge has founded his reference is that in proceeding with the recording of evidence for the purpose of passing the impugned order immediately after the passing of order under section 112, Cr. P. C., the learned Magistrate violated the mandatory requirement of law that opportunity of cross-examination must be given to the respondent. There is a precedent of this Court directly on the point in the case State v. Ghulam Ali (P L D 1975 Kar. 90). In this case it was observed as follows:-

"The order under section 117 (3), however, suffers from other defects as well. In the first place it seems that no opportunity was given to the respondents for cross-examining the witnesses. New the deposition of a witness in regard to which an opportunity for cross-examination has not been given is not really an evidence at all. I can of course entirely understand that the gravity and emergency of the situation may be such that long adjournment for the purpose of engaging an Advocate might not, in a given case, be possible but some reasonable opportunity must be given."

I have perused the record and proceedings of the case and I find that no opportunity of cross-examination was given to the respondents for the three witnesses examined by the learned Magistrate. The right to be defended by a legal practitioner is enshrined in the constitution in the chapter relating to fundamental rights. Article 10 (1) provides as follows :-

"No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practi tioner of his choice"

Section 340 of the Code of Criminal Procedure provides that any person accused of an offence before a criminal Court, or against whom proceedings are instituted in any such Court, shall have a right to be defended by a pleader. The consensus of opinion has all along been that reasonable opportunity must be afforded to the person proceeded against in a Court of law to defend himself. It is too late in the day to think of recording of evidence in a judicial proceeding without affording opportunity of cross examination to the person proceeded against. I am quite unable to understand why the learned Magistrate while examining the witnesses on oath in presence of the respondents did not think of affording them opportunity to question the truthfulness of the statement made by the witness before him. I am therefore constrained to conclude that the procedure adopted by the learned Magistrate was totally derogatory to the very basic and fundamental rules of judicial process. The order founded on such evidence must necessarily therefore be struck down. The learned Advocate for the State also supports the reference and submits that the impugned order be quashed.

6. In the result, the impugn-.d order under section 117 (3), Cr. P. C. is set aside. If the respondents are in custody on account of this order for their failure to furnish surety, they shall be released forthwith.

S. Q. Reference accepted.

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