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Criminal Miscellaneous No. 585 of 1985, decided on 19th October, 1985.

‑‑ Ss. 107/151 & 561‑A‑Complaint‑Neither residents making any complaint to police under S. 107/151, Cr. P. C. nor Police recording their statements in that behalf‑Mere report of Police against a citizen, held, was not sufficient ‑Police was required to prove com plaint by any material whatever‑police report against accused not supported by any material, proceedings quashed in circumstances.

‑‑ Ss. 107/151 & 112‑Notice, service of‑Name of only one accused written in portion of notice (meant for name of accused) but signatures; thumb‑impression of all accused persons obtained on said notice‑Only one accused, held, could be said to have been examined on behalf of all accused persons ‑All accused persons, therefore, could not be found guilty under S, 107/151, Cr. P. C. in circum stances.

‑‑‑ Ss. 107/151 & 112‑Portion of notice meant for name of opposite party left unfilled as if nobody had brought any allegation against accused persons ‑yet Magistrate was satisfied that accused persons were anti‑social elements ‑Merely because it was brought to notice of Magistrate that accused was a man of bad character, Magis trate, held, was not bound to require accused to furnish bail bond for keeping peace.

---Ss. 107/151 & 112‑Answers to questions in notice under S. 112, Cr. P. C. already recorded in rubber stamp as if Magistrate was aware beforehand about answers that accused would confess guilt Held, objection could be raised in circumstances that accused were not examined and Magistrate himself answered questions for holding them guilty‑Such form of notice ordered to be cancelled and a proper notice be drafted according to law leaving answers to ques tion in statement of accused blank.

Tasleem Hussain for Petitioners.

Shahab‑ud‑din for the State.

Date of hearing :19th October, 1985.

The police made a report to the Magistrate that the petitioners are gamblers and have disturbed the peace of the locality. The learned Magistrate served notice upon the petitioners under section 112, Cr. P.C. to show cause as to why they should not be bound down under section 107/151, Cf. P. C. for keeping peace by furnishing bail bond each in the sum of Rs. 10,000. In reply, the petitioners did not produce any defence and consequently the learned Magistrate released them on bail each in the above amount. The petitioners are aggrieved by this order of the learned Magistrate, therefore, they have filed this application for quashing the proceedings against them.

Learned counsel for the petitioners and learned State counsel heard. The allegation of the police against the petitioners is that the residents of the locality had made a complaint to them about the gambling of the petitioners in the locality. The residents asked them to give up gambling in the local ity, but they threatened theta with dire consequence of killing them. There is no written complaint made by the residents to the police against the petitioners nor has the police recorded their statements in this behalf. There is also nothing on record to show that the petitioners are professional gamblers. I, therefore, do not see as to how the learned Magistrate was satisfied with the report of the police which was not supported by any material. While passing order under section 112, Cr. P. C., the Magistrate must satisfy himself on the basis of reliable material in support of the report made to him by the Police and should not allow himself to pass al mechanical order barren of reasons, as it will otherwise means that subjective satisfaction of the Court is sufficient for passing an order which is not countenanced by the law. If the impugned order is maintained, I will be laying down a law that the mere report of the police against a citizen in a case of this nature is sufficient and there is no need to require the' police to prove the same by any material whatever. I have to observe that in law the police is not exempt from furnishing proof before the Court in support of its allegations against anybody. Nobody before the Court is sacrosanct to take his claim a gospel truth. Everybody is required to furnish positive data and material in support of his claim for the satisfaction of the Court. The test to judge the veracity of a claim in civil and criminal cases is that the Court will examine the claim of a party to the proceeding in the light of what is brought on record and if his claim is found bereft of reliable evidence from independence source, the Court will be justified to strike down his defence. Now as in the present case, the report of the police against the petitioners is not supported by an material whatever, I consider it a fit case for interference. Consequently I allow this application and quash the proceedings against the petitioners.

Before parting with the case, I take note of the notice served in this case upon the petitioners under section 112, Cr. P. C. by the learned Magistrate. This notice is a prescribed notice drafted by the District Authorities of Peshawar according to their dictates of their own heads without taking help from the law of criminal procedure and is in force in the type of the present cases in the Courts of the District Magistrates in Peshawar District. The notice is in vernacular consisting of two parts. The first part is the notice simpliciter and its second part consists of two questions which are put to the accused in trial and it is strange that the answers to the said questions have already been recorded in rubber stamp, as if the Magistrate is aware before hand about the answers that the accused would confess to the guilt. This notice may be reproduced :

This notice has been served jointly upon all the petitioners in the present case. However, it would appear that the learned Magistrate had served the notice only on petitioner Muhammad Iqbal, as his name has been written in the blank place meant for the name of the accused. But e curiously, the signatures/thumb‑impressions of all petitioners were obtained on the notice. This means that only petitioner Muhammad Iqbal was examined on behalf of the other petitioners and in the result all were found guilty under section 107/151, Cr. P. C. Again, the blank place of the notice meant for the name of the opposite party has been left unfilled, as though nobody had brought any allegation against the petitioners and yet the Magistrate was satisfied that the petitioners were anti‑social elements. This would signify that the Magistrate in a case of this nature is not bothered about to take account of the allegation against the accused ands, merely because it was brought to his notice that the accused is a min of bad character, the Magistrate is bound to require him to furnish bail bond for keeping peace. It appears that the author who drafted the notice lacks knowledge of criminal law and procedure, as the above stereotyped notice enforceable in the Courts of Magistrates of Peshawar District is not a sensible and reasonable notice to satisfy the requirements in criminal cases. If an accused is brought to the Court to face trial on the allegation against him, it is the duty of the prosecution to support its allegations by evidence and the accused has the right to rebut the same. In the present case, as the notice reproduced above would show, the prosecution did not furnish any proof in support of its allegations against the petitioners nor were the petitioners supposed to rebut the allegations, as their answers to the question in the notice were already recorded as if they would confess to the guilt. In this state of record, an objection can be raised that the petition were not examined and the Magistrate himself answered the questions for holding them guilty. I direct that this notice must at once be cancelled and a proper notice be drafted according to law in which inter alia, answers to the question in the statements of the accused must be left blank and be filled in by the answers of the accused when he is asked by the Court in trial to meet such questions.

M. A. K. Proceedings quashed.

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