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Criminal Miscellaneous Application No. 361 of 1976, decided on 27th August 1976.

-- Ss. 107, 112 & 117(3)-Security proceedings-Information laid before Magistrate, relating to a single instance of a non-cognizable offence and nothing further to indicate that petitioner had any design to commit any cognizable offence-'Magistrate proceeding to issue notice and requiring sureties on same date of hearing- Magistrate, _hold, had no basis for commencing or continuation of proceeding. and orders passed were in complete disregard of statutory provision_-- Proceedings quashed, in circumstances.-[Quashment of proceedings].

Muhammad Ali Shaikh for Applicant.

Muhammad Ramzan Qureshi for the State.

Date of hearing : 24th August 1976

This is an application for quashment of proceedings initiated against the applicant under section 107/151, Cr. P. C. in which orders under section 112, Cr. P. C. and under section 117 (3), Cr. P. C. were passed. These proceedings are pending before the Mukhtiarkar and F. C. M., Shahdadpur.

The facts of the case are that the S. H. O., Shahdadpur led information before the above-said Magistrate on 5-4-1976 to the effect that the applicant Ghulam Ali Shah resided within the local limits of the Court but was a goonda and badmash type of a man against whom many cases were pending and that he had a bad reputation. On 4-4-1976 one Muhammad Anwar had lodged a report that the applicant has met him near Latif Park where he spoke to him about Muhammad Ishaque Advocate. Upon this the applicant had beaten him and after abusing had attacked him with a knife but witnesses Khan Mehrani and Allah Ditto Brohi intervened and separated them. In this information it was further stated that tile applicant also came up to the police station and had filed a complaint, which was registered under section 32 3, P. P. C. by the A. S. I. Muhammad Ismail. As Muhammad Anwar com plainant apprehended danger to his life and property at the hands of the applicant and as it was likely that some cognizable offence may be committed by the latter or that he would create a breach of the peace, he was arrested under section 151, Cr. P. C. and was produced before the Court for action.

The Magistrate on receiving the above information passed an order under section 112, Cr. P. C. which is reproduced hereunder:

"Whereas it appears to me from the report No. 2083 dated 5-4-76 of S. H. O., Shahdadpur that there exists a dispute between you the above opponent and the applicant Muhammad Anwar. On 4-4-1976 you abused and attacked with knife and beaten him severely near Latif Park. That you are dangerous type of person and Muhammad Anwar apprehends danger of life and property from you and there is every likelihood of breach of peace.

You are therefore, called upon to show cause why you should not be ordered to execute bond in the sum of Rs. 2,000 with two sureties each solvent in the like amount to keep the peace for a period of 12 months.

The sureties should be respectable persons and be able to control your activities, to the satisfaction of this Court."

On the same date the order is alleged to be read over and explained to the respondent who is said to have pleaded not guilty. Again an application was made by the S. H. O. on that very day i. e. 5-4-1976 requesting for an action under section 117 (3), Cr. P. C. on the ground that the applicant was a dangerous type of a man and history sheeter, badmash and a goonda and if he was released he would tamper with the witnesses by putting pressure on them and also by threatening then, on which account there was likelihood of the breach of peace. The Magistrate proceeded to examine Muhammad Anwar who deposed to what was already stated by the S. H. O. in the complaint under section 107, Cr. P C. He thereafter passed an order under section 117(3), Cr. P. C. calling upon the applicant to furnish two sureties as mentioned in the order under section 112, Cr. P. C. for keeping the peace pending comple tion of the enquiry.

The learned counsel for the applicant has contended that the case of the applicant has a chequered history inasmuch as he was arrested and sent up in December, 1975 under the Sind Crimes Control Act which proceedings he challenged in this Court and he was granted bail on 29-3-1976. Immediately on being released in pursuance of the writ issued by this Court from Khipro Jail where he was confined, he was taken in a Jeep by one Allah Dad A. S. I. and kept in custody which fact was communicated to the authorities by sending them telegrams. An application for bail was also moved in the Court of Session and a Notice was issued to the Public Prosecutor for hearing on 6-4-1976. According to the learned counsel, the impugned proceedings were initiated on 5-4-1976 only to frustrate the above-said bail application and also to give a cover to the unlawful custody in which the applicant 11ad been detained in violation of the orders of the High Court.

I have heard the learned counsel for the applicant and Mr. Ramzan Qureshi appearing for the State at considerable length. Mr. Ramzan Qureshi has very candidly and fairly conceded to the position that a single instance of fight involving a non-cognizable offence referred to in the complaint would not justify the action under section 107 or 117 (3), Cr. P. C. The learned counsel for the applicant has further pointed out that there was no material, pith the police which could authorise the arrest o .' the applicant under section 151, Cr. P. C. as the same is attracted only when a design to commit any cognizable offence is brought to the knowledge of a Police Officer and it appears to that Police Officer that the commission of the offence cannot be prevented other wise than by the arrest of the person so designing.

Indeed in the information led before the Magistrate there is no indication of any such design and if the applicant himself had come to file a report there could hardly be any reason for the Police Officer to exercise his powers under section 151, Cr. P. C.

The allegations of fact, that the proceedings under section 107 had been initiated on account of some District Authorities who were interested to keep the applicant under detention in spite of the orders of release passed by this Court, or to give a cover to his unlawful detention subsequent to his release pursuant to the writ issued by this Court, would, if proved lead to an undeni able conclusion that the impugned proceedings are mala fide. But if the proceedings are liable to be quashed otherwise than going into, these allega tions, I think the merits of these allegations need no examination. It is sufficient to say as has been conceded by the learned counsel appearing for the State that there is no proper basis for commencing or continuation of the proceedings against the applicant. The applicant has already been released on bail under the orders of this Court dated 12-4-1976, which were later on, confirmed on 26-4-1976. The Magistrate appears to have acted unscrupulously taking action on the information laid before him, without proper applica tion of mind. In passing an order under section 117(3), Cr. P. C. on the same date he has obviously acted in complete disregard of what has been repeatedly. held by this Court in such matters, so has he acted in recording the plea of guilt of the applicant after reading the order under section 112, Cr. P. C.

In view of the above, the pending proceedings under section 107, Cr. P. C. against the applicant and subsequent orders passed by the Mukhtiarkar and F. C. M., Shahdadpur are ordered to be quashed and this application allowed.

Petition allowed.

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