Find a Lawyer

Criminal Revision No. 416 of 1557, decided on 15th May 1958, from the order of the District Magistrate, Jhelum, dated the 7th May 1957.

Criminal Procedure Code (V of 1898), S. 107‑Object is to prevent person from commission of offences involving breach of peace‑Expression "breach of peace" means breach of public peace as well as breach of peace of individual.

The object of requiring security from a person under section 107, Cr. P. C., is to prevent him from commission of offences involving breach of the peace during the period fixed for the purpose. If during this period, he commits an offence which does not involve a breach of the peace, his bond cannot be forfeited.

The expression "breach of the peace" is a very wide term and it clearly includes breach of the public peace as well as the breach of the peace of an individual.

The breach of the peace contemplated by section 107, Criminal Procedure Code is not necessarily a breach of the public peace. The peace of an individual is as much the concern of the State as the peace of the public in general.

The expressions "breach of the peace" and "disturbance of the public tranquillity" are not synonymous. A breach of the peace is to be regarded as something distinct from a disturbance of the public tranquillity.

The use of violence or physical injury to another member of the State amounts to the commission of the breach of the peace, even though the violence or the, physical injury may have been used in privacy. But if a person acts in exercise of his right of private defence, it cannot be said that he has committed any offence involving breach of peace.

Naziruddin and others v. Emperor A I R 1933 All. 609 ; Hayat Khan v. Emperor A I R 1932 Lah. 435 and In re Ganti Veera Reddi and others A I R 1938 Mad. 615 rel.

Sh. Muhammad Shafi for Petitioners.

Mushtaq Ahmad, A. A. G. for State.

Date of hearing ; 8th May 1958.

The material facts giving rise to this revision petition are as follows. On the 28th of September 1954, Farman Khan and Ghulam Haider petitioners were bound down under section 107 of the Code of Criminal Procedure to keep the peace for a period of one year. They were‑ required to furnish security in the sum of Rs. 1,000, with one surety in. the like amount. They executed bonds (Exs. P. A. and P. B.) respectively. Muhammad Feroze and Sajawal Khan petitioners stood surety for Farman Khan and Ghulam Haider petitioners respectively and executed surety bonds incorporated in Exs. P. A. and P. B. by which they bound themselves to pay a sum of Rs. 1,000 each to the Pakistan Government in case their principals committed any breach of the peace during the aforementioned period. Some members of the opposite party were also similarly bound down.

2. Only four days later, a clash occurred between the parties in which a member of the opposite party was killed and several members of both the parties received simple and grievous hurt. Both the parties were challaned. Farman Khan and Ghulam Haider petitioners, along with Sajawal and Fazal Husain, were convicted by the Sessions Judge, Jhelum, of offences under sections 325 and 323, read with section 34, P. P. C. and were sentenced to undergo four years' rigorous imprisonment each on the first count and to six months' rigorous imprisonment each on the second count. On their appeal to the High Court, their sentences under section 325 read with section 34 of the Pakistan Penal Code were reduced to nine months' rigorous imprisonment each. Yaqub Ali, J. while reducing the sentence observed as follows :‑

"The participation of those accused who bear injuries on their persons is proved beyond doubt and the only question which arises for determination is whether they played the aggressive role in the fight. I have noticed above that the occurrence took place near the house of Farman Khan accused, which would show that initially the accused were not the aggressors in this case. Their fault lay in accepting the challenge thrown by the opposite party although it cannot be said with certainty that the deceased and his companions would have left the scene of occurrence without pursuing their challenge to a concrete result, even if the accused did not accept it there and then. I, therefore, affirm the convictions of the appellants, but, in view of the initial aggression displayed by the deceased and his partisans, reduce their sentences under section 325 read with section 34, P. P. C. to nine months' rigorous imprisonment each".

3. Thereafter, at the instance of the police, forfeiture proceedings under section 514 of the Code of Criminal Procedure were initiated against the petitioners, in the Court of Mr. Saeed ul‑Hamid, Magistrate 1st Class, Jhelum. who by his order, dated the 2nd of January 1957, ordered the petitioners to pay a sum of Rs. 250 each out of the amounts of their respective bonds by way of penalty to the Government of Pakistan. Their appeal from this order having been dismissed by the District Magistrate they have now come up in revision before this Court.

4. Sheikh Muhammad Shafi, the learned counsel for the petitioners, raised the contention that the offences which were committed by Farman Khan and Ghulam Haider petitioners did not involve a breach of the peace and consequently the order of the forfeiture of the petitioners' bonds was illegal. The point raised is somewhat interesting and requires a fuller consideration.

5. In order to appreciate the point raised, it is necessary to find out the meaning of the expression "breach of peace". Unfortunately, the expression is not defined in the Code of Criminal Procedure. Its meaning, therefore, shall have to be gathered from other sources. Security for keeping the peace can be required under section 106, Cr. P. C., when a person is convicted of certain offences enumerated in the section, which include an offence of assault or other offence involving a breach of the peace. It can also be required under section 107, Cr. P. C., when though the person is not convicted of any offence, there is reason to apprehend that he is likely to commit or provoke a breach of the peace. The object of requiring security from a person under section 107, Cr. P. C., is to prevent him from commission of offences involving breach of the peace during they period fixed for the purpose. If during this period, he commits an offence which does not involve a breach of the peace, his bond cannot be forfeited.

6. The Oxford dictionary meaning of the word "peace" is freedom from civil disorder. It also means quiet and tranquillity. The King's peace means general peace of the realm as secured by law. According to Wharton's Law Lexicon, (14th Edition), the word "peace" means a quiet behaviour towards the King and his subjects, and the expression "breach of the peace" means "a violation of that quiet, peace and security which is guaranteed by the laws for the personal comfort of the subjects of the Kingdom". According to Black's Law Dictionary (3rd Edition) the word "peace" means "the tranquillity enjoyed by a political society internally by the good order which reigns among its members and externally by the good understanding it has with all other nations. Applied to the internal regulations of a nation peace imports in a technical sense not merely a state of repose and security as opposed to one of violence or warfare but likewise a state of public order or decorum, and the word "breach" means the breaking or violating of a law, right or duty either by commission or omission. The expression "breach of the peace" according to this dictionary is a generic term and includes all violations of public peace or order and acts tending to a disturbance thereof and a constructive breach of the peace is an unlawful act which though wanting the elements of actual violence or injury to any person is yet inconsistent with the peaceable and orderly conduct of society and an apprehended breach of the peace is caused by the conduct of a man who threatens another with violence or physical injury or who goes about in public with dangerous and unusual weapons in a threatening or alarming manner. From the above,, it appears to me that the expression "breach of the peace" is a very wide term and it clearly includes breach of the public peace as well as B the breach of the peace of an individual. In my opinion the contention of the learned counsel for the petitioners that it means only a breach of the public peace has no substance in it, firstly because the word "public" is not mentioned in it, and secondly because in accordance with the provisions of section 107, Crimi nal Procedure Code, a person can be required to furnish security to keep the peace, if he is likely to commit a breach of the peace or disturb the public tranquillity or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquillity. This obviously means that the expressions "breach of the peace" and "disturbance of the public tranquillity" are not synonymous. A breach of the peace is to be regarded as something distinct from a disturbance of the public tranquillity. Though a disturbance of the public tranquillity does involve a breach of the peace, the latter expression does not necessarily include a disturbance of the public tranquillity. It is important to note that in either case when a person is likely to commit a breach of the peace or disturb the public tranquillity, he is required to furnish security only to keep the peace. It con sequently follows that the breach of the peace contemplated by section 107, Criminal Procedure Code is not necessarily a breach of the public peace. The peace of an individual is as much the concern of the State as the peace of the public in general. In my opinion the use of violence or physical injury to another member of the State amounts to the commission of the breach of the peace, even though the violence or the physical injury may have been used in privacy. I am fortified in this view by a decision of a Division Bench of the Allahabad High Court in Naziruddin and others v. Emperor (A I R 1933 All. 609) where after reviewing the case‑law on the point involved, it was held that the causing of hurt to a person involved a breach of the peace and that it was not necessary that the public should be assaulted or hurt or that the offence should take place in public. It was further held that the offence of causing hurt itself is a breach of the peace whether it takes place in a private room or in 'the open street. I am in respectful agreement with these observations of the learned Judges of the Allahabad High Court. To the same effect is Hayat Khan v. Emperor (A I R 1932 Lah. 435). This view finds further support from a decision of the Madras High Court In re : Ganti Yeera Reddi and others (A I R 1938 Mad. 615). In this view of the matter I hold that Farman Khan and Ghulam Haider petitioners by committing offences under sections 325 and 323 read with section 34, P. P. C. did commit a breach of the peace, and consequently they and their sureties forfeited their bonds. The position would have been different it' they had merely acted in the exercise of their right of private defence. In view of the finding of the High Court it is clear, that although the complainants in that case had played an aggressive role by coming from a long distance to attack the petitioners, yet, the petitioners could have avoided the fight by not coming out of their house. They, however, accepted the challenge and came out of their house and attacked the opposite party. The finding of the High Court implies that it was a case of a free fight.

7. It was next urged by the learned counsel for the peti tioners that the members of the opposite party who had assembled outside the house of Farman Khan and Ghulam Haider petitioners, were armed with deadly weapons and had thrown a challenge to the petitioners and consequently they had already committed breach of the peace and, therefore, when the petitioners went out of their house to fight with them, they did not commit any fresh breach of the peace. This argument though ingenious is fallacious. I have already held that the breach of the peace does not mean necessarily the breach of the public peace. Though before the mutual attack, the complainant party was disturbing the public tranquillity and as such was committing breach of the pubilc peace, yet when both the parties clashed and caused simple and grievous hurts to each other, they did commit breach of the peace against each other, besides disturbing the public tranquillity.

8. Lastly, it was urged by the learned counsel for the petitioners that in view of the finding of the High Court, it was almost a case of the exercise of the right of private defence and, therefore, the penalty which has been ordered to be realised from the petitioners, is excessive. There is some force in this con tention. In the circumstances of the case, I think it will meet the ends of justice if the penalty is substantially reduced. I accordingly reduce the amount of the penalty to rupees one hundred in the case of each of the petitioners. Except for the reduction in the amount of the penalty, this revision petition is otherwise dismissed.

K. M. A. Petition dismissed.

Find a Lawyer Near You

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