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Criminal Miscellaneous Application No.516 of 1986, decided on 23rd October, 1986.
---Ss.561-A & 117(3)--Quashing of proceedings--Orders of Sub Divisional Magistrate purporting to have been passed under S.117(3), Cr.P.C. on the application of opposite-party, alleging apprehension of breach of peace and misbehaviour in Court by applicant--No such application, however, available on record of case nor any enquiry into allegations made by Sub-Divisional Magistrate before passing impugned orders--Orders of S.D.M., held, not sustainable and quashed, in circumstances.
Muhammad Rauf for Applicant.
A.A. Muhammadally, Asstt.A.-G. for the State.
Date of hearing: 23rd October, 1986.
This quashment application calls into question the order dated 5-11-1985 passed by SDM Civil Lines, Karachi, in Criminal Case No.462 of 1985 and the order dated 2-4-1986 of the learned Ist Addl. Sessions Judge (South), Karachi, dismissing Criminal Revision Application No.88 of 1985 filed by the applicant. The order dated 5-11-1985 of the SDM Civil Lines, Karachi, reads as follows: -
"Opponent (i.e. the applicant Muhammad Asad Khan) present. Other party (i.e. the private respondents) produced an application that the opponent is making apprehension of breach of peace and misbehaving in the Court. He is ordered a/s 117(3), Cr.P.C. to furnish fresh two sureties in the sum of Rs.10,000/- each as he has committed breach. The sureties should be of the same locality who could control from the apprehension of breach of peace on the disputed mosque.
The opponent failed to furnish surety and remanded to J. C. for want of surety. Case for 10-11-1985."
Against the said order, revision was filed which was dismissed, as observed earlier, by order dated 2-4-1986 of the Ist Addl. Sessions Judge (South), Karachi. I have heard Mr. Muhammad Rauf, learned counsel for the applicant, the private respondents who appear in person and Mr. A.A. Muhammadally, learned Asstt. Advocate-General for the State.
2. The R & P is here. The learned Asstt. Advocate-General has gone through the entire R & P and he states that there is no application on record to the effect that there is breach of peace and misbehaviour in Court on the part of the applicant as stated in the order dated 5-11-1985 of the SDM Civil Lines, Karachi.
It appears from the order dated 5-11-1985 that some application had been produced before the SDM on which the said order dated 5-11-1985 had been passed but no such application is on record. Even otherwise, if one party makes a statement that the other party is misbehaving in the, Court or has taken some action which amounts to breach of peace, same enquiry on the part of the SDM is necessary. He has apparently relied upon an application made by the private respondents making certain allegations against the applicant, but as observed earlier even no such application is on record.
3. In the circumstances, the order dated 5-11-1985 is not sustainable and is hereby quashed. Criminal Misc. Application No.516 of 1986 is disposed of.
S. G. D./M-137/K Order quashed.
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