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Criminal References Nos. 207 to 211'of 1975, decided on 13th June 1977.

‑‑ Ss. 112 & 117(3) read with S. 561‑A‑Quasbment of proceedings --Two orders under Se. 112 & 117(3) passed on same day after recording evidence of two prosecution witnesses and opponents remanded to custody for want of surety‑Contention that serious prejudice caused to opponents by such orders as no reasonable opportunity wag given to cross‑examine witnesses and furthermore proceedings were banging on for last 2 years‑Contention, held, correct and proceedings quashed, in circumstances.‑[Quashment of proceedings‑Delay].

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

Nooruddin Sarki for the State.

Date of hearing: 13th June 1977.

These three references have been made by the learned 11 Additional Sessions Judge Larkana. They involve common points of law, hence they would be disposed of by this single order. The main point on which the refe rences have been made is that the order under section 112, Cr. P. C. and the order under section 117 (3), Cr. P. C. were passed on the same day by the learned S. D. M., Larkana in the proceedings under section 110 initiated by police against the opponents. The order under section 117 (3). Cr. P. C. was however, passed after recording the evidence of S. H. O. and Police Constable Mohammad Urs of Naudero Police Station on the same day after the order under section 112, Cr. P. C. was pasted. The opponents were remanded to custody for want of surety. The opponents filed separate revision applications in the Court of Session, Larkana and the learned II Additional Sessions Judge, after hearing the Advocates of the parties, has made three separate references for quashment of the entire proceedings. The main ground urged in the references is that the evidence of two witnesses was recorded on the same day on ONO the orders under sections 112 and 117 (3), Cr. P. C. were passed hence the opponents were not given a "reasonable opportunity" to cross‑examine the witnesses. It may, however, be pointed out that the provisions of section 117, Cr. P. C. do not lay down that a "reasonable opportunity" to cross‑examine the witnesses should be given to the person before an order under subsection (3) of section 117, Cr. P. C. could be passed against him. Subsection (3) lays down that "pending the completion of the inquiry under subsection (1) the Magistrate, f he considers that immediate measures are necessary for the prevention of a breach of peace-----------or for public safety, may for reasons to be recorded in writing direct the person in respect of whom the order under section 112, Cr. P. C. has been made to execute a bond, with or without sureties, for keeping the peace or ------until the conclusion of the inquiry and may detain him in custody until such bond is executed". In the light of the above provisions of law no illegality has been committed by the learned Magistrate. It is not clear from the record whether any application was made by the opponent to the Court for adjournment to engage a counsel and cross‑examine the witnesses. However, considering the general principles of the law of evidence ft the deposition of a witness is recorded without affording a reasonable opportunity to the person against whom it is used, it is of no legal consequence and no action could be based on it. A serious prejudice has been caused to the opponent by tide order passed under section 117 (3), Cr. P. C. as every thing was done on the same day and no reasonable opportunity was given to the opponent to cross‑examine the two witnesses examined against him. There is also reason of inordinate delay to quash the proceedings pending against the opponent. The proceedings have lingered on for over two years hence the reference bas been correctly made.

The learned Additional Sessions Judge, has relied on the two rulings of this High Court reported in P L D 1975 Kar. 90 and P L D 1974 Kar. 85 (sic).

The learned State Counsel, Mr. Sark, supports the references and submits that the entire proceedings under sections 110, Cr. P. C. pending against the opponents in the Court of S. D. M., Larkana, may be quashed as there was no justification for passing the order under section 117 (3) or 112, Cr. P. C. against them.

The facts of the instant case and the precedent case as reported in P L D 1975 Kar. 90 are identical. In the precedent case also the orders under sections 112 and 117 (3), Cr. P. C. were passed on the same day after recording the evidence on some witnesses to the effect that the accused were habitual offenders and their remaining too bail without sureties would be hazardous to the peace and tranquillity of the society. It has been observed by his Lordship as under: ‑‑

"In the first place it seems that no opportunity was given to the respon dents for cross‑examining the witnesses. The depositions of the witnesses in regard to which an opportunity for cross‑examination has not been given is not real evidence at all."

It is, therefore, obvious that the order passed by the learned S. D. M. was not proper, and it must be quashed. A delay of more than 2 years has already occurred and this would bean additional ground for quashing the proceedings.

I, therefore, quash the proceedings pending against the opponents before the learned S. D. M. Larkana and discharge the ball bonds executed by them separately.

Reference accepted.

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