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Criminal Reference No. 237 of 1962, decided on 16^th November 1962.

Prevention of breach of peace‑Immediate measures by way of detention in custody or interim bond‑To be taken after inquiry-- Evidence of witnesses sufficient for final order under S. ,118 may not always justify order under S. 117 (3) ‑ Order passed under S. 117 (3) found unjustified‑Quashed in revision by High Court.

Conditions for sureties‑Requiring sureties to be of certain class and financial status, paying certain amount of land revenue, residing within certain geographical limits and being in position to control activities of person proceeded against‑Not illegal‑Such conditions although not illegal, held, in circumstance of case, onerous, harsh and difficult of performance.

Ali Mohammad and others v. The State Criminal Revision Application No. 475 of 1960 ;State v. Mohammad Rahim and others Criminal Reference No. 194 of 1961 ; State v. Mataro and others Criminal Reference No. 410 of 1961 ; Syed Bunyadul Haque v. The State Criminal Revision Application No. 394 of 1961 ;

Emperor v. Din Mohammad 3 S L R 168 ; Jan Mohammad v. The Crown 3 S L R 239 ; Imperator v. Piral 5 S L RIO ; Mohammad Ibrahim v. The Crown and Junto v. The Crown 8 S L R 173 and 229 ; Allahdad and others v. The Crown 1924 Sind 120 ; Queen‑Empress v. Rahim Bakhsh I L R 20 All. 206 ; Emperor v. Nabbu Khan I L R 24 All. 471 ; Sheikh Zikri v. Emperor 12 Cr. L J 472 and Narain Sahai and others v. Emperor A I R 1946 All. 333 ref.

Lalu Bux v. The State Criminal Reference No. 193 of 1962 and Criminal Revision Application No. 394 of 1962 reconsidered.

Order made for period of 12 months‑Person proceeded against continuing to remain in custody for 16 to 17 months pending proceedings‑Order quashed.

A. K. Shaikh Asstt. A. G. for the State.

Nemo for Respondent.

Date of hearing : 9th November 1962.

This is a suo motu reference made by Khamisani, J. who in the course of his recent inspection of the Subordinate Courts in Mirpurkhas District came across this case pending on the file of the S. D. M., Mirpurkhas and directed that the papers in this matter be taken to Karachi and placed before the High Court to examine whether the order under section 117(3), Cr. P. C. is a proper order.

2. This matter came up for hearing in Court before one of us sitting singly on 1‑11‑1962 when the learned Additional Advo cate‑General expressed a desire that it be placed before a Division Bench. Accordingly, the matter was adjourned on that day and after obtaining the orders of the Senior Judge this matter was placed before the present Division Bench.

3. It appears from the Inspection Note of the visiting Judge that this case started with a report under section 110, Cr. P. C. submitted by the S. H. O. Jhudo against the present. respondent Hyder son of Sono Chandio in the Court of the S. D. M., Mirpur khas on 26‑7‑1961. An order under section 112, Cr. P. C. was made by that Magistrate against the present respondent which is undated and which is in these words :‑

"Order under section 112, Cr. P. Code

Where it has been reported by the S. H. O. Jhudo that you, Hyder son of Sono Chandio r/o Nakot Taluka Dagri commit thefts, habitual thief, receive and dispose of stolen property, harbour thieves and dacoits and that your remaining at large is hazardous to the public peace and tranquility, you are therefore called upon to show cause why you should not be required to execute a bond in the sum of Rs. 5,000 along with two sureties solvent in the like amount to be of good behaviour for a period of 12 months. The sureties should be of Zamindari class paying land revenue not less than Rs. 5,000 annually and residing within a radius of five miles from you to be able to control your movements and activities.

(Sd.)

Sub‑Divisional Magistrate,

Mirpurkhas."

4. Thereafter an application was submitted by the same S. H. O. requesting for an order under section 117 (3), Cr. P. C. and in pursuance thereof such an order was made by the same Magistrate on 30‑8‑1961 and which is in these words

"Order under section 117 (3), Cr. P. Code :‑

This is an application from the S. H. O. Jhudo requesting for proceeding under section 117 (3), Cr. P. Code against Hyder son of Sono Chandio, Near Noakot Taluka Dagri.

"S. H. O., Jhudo requests that immediate measures are necessary for the prevention of disturbance of the public tranquillity and commission of offences because he is a habitual thief, receiver of stolen property, bhung taker and during night hours threatens public with dire consequences and his remaining at large without sureties as laid down under section 112, Cr. P., Code is hazardous to the public. Witnesses Abdul Shakor, Dado Bijar and Noor Muhammad have been examined today. , They have cited instances of theft, bhung against the present respondent and have deposed that the ‑ respondent is very dangerous and his being at large without sureties is hazardous to the public interests.

In view of the statements of the witnesses cited above I am satisfied that immediate and emergent measures are necessary to prevent disturbance to the public tranquillity in commission of cognizable offences by the respondent in the interests of the public safety and do direct the above named respondent to execute in the sum of Rs. 5,000 with two solvent sureties in the 5,000 each during the pendency of the enquiry for maintaining good behaviour until the conclusion of the enquiry or execution of such binding whichever is earlier. I also direct him further that the sureties be of Zamindar class paying land revenue of about Rs. 5,000 annually residing within the radius of five miles from him and be able to keep control over his activities during the above order.

(Sd.)

(Mian Basharat Rasool) C. S. P.

Sub‑Divisional Magistrate, Mirpurkhas. Camp Jhudo 30‑8‑1961.

The contents of the above order are read out to the respon dent. He is not able to furnish the required sureties in terms of the order at the moment. He is therefore remanded to custody.

(Sd.)

(Mian Basharat Rasool) C. S. P. Sub‑Divisional Magistrate, Mirpurkhas. Camp Jhudo 30‑8‑1961."

5. Between 30‑8‑1961 and 20‑3‑1962 there were fifteen dates of hearing, the 16th date of hearing being on 20‑3‑1962. On none of these fifteen dates of hearing was any progress made in this case and the case diary shows that the respondent, who on 30‑8‑1961 pursuant to the order under section 117 (3), Cr. P. C. made on that day was remanded to custody, was present in custody on each of these fifteen dates but no prosecution witness was examined. Three prosecution witnesses were examined on 20‑3‑1962 and one or two prosecution witnesses on the subsequent dates till 30‑4‑1962 after which there is no further date of hearing as the papers in this matter were brought to this High Court.

6. It is apparent from a recitation of the above facts that for almost seven whole months from 30‑8‑1961 to 20‑3‑1962 no progress at all was made in this matter. A perusal of the case diary of this case shows that during this period the R & P of ‑this case had been called for by the Sessions Court, Mirpurkhas and was not returned to the Court of S. D. M., Mirpurkhas till 20‑3‑1962. This would explain why the proceedings in this case were at a standstill for this long period. After the return of the R & P to the trial Court, some progress was made in this case on each subsequent date of hearing. The respondent was released on bail by this High Court in May 1962 as soon as the papers in this matter were received by this Court.

7. The order under section 117 (3), Cr. P. C. made by the S. D. M. in this matter on 30‑8‑1961 was passed after examining four witnesses namely Abdul Shakoor son of Mohammad P. W. 1 Dodo son of Jurio P. W. 2, Bijawar son of Ghulam Nabi P. W. 3 and Noor Mohammad son of Ilyas P. W. 4. We have perused the evidence of these four witnesses but we do not find that it contains any material that could call for an emergent order under section 117 (3), Cr. P. C. An indispensable ingredient of an order under subsection (3) of section 117, Cr. P. C. is an emergency necessitating immediate measures for the prevention of a breach of the peace or disturbance of the public tranquillity or for the public safety etc. In order to determine whether such an A emergency exists an enquiry is to be held, but no such enquiry seems to have been held in this matter. The evidence of the above four witnesses, although it may form the basis of final order under section 118, Cr. P. C., yet, it does not justify an order under section 117 (3), Cr. P. C.

8. Moreover, the conditions imposed upon the sureties both in this order and in the order under section 112, Cr. P. C. called for comment particularly in view of the recent rulings of this High Court in Ali Mohammad and others v. The State (Criminal Revision Application No. 475 of 1960) decided on 16‑1‑1961, in State v. Mohammad Rahim and others (Criminal Reference No. 194 of 1961) decided on 19‑6‑1961, in State v. Mataro and others (Criminal Reference No. 410 of 1961) decided on 22‑1‑1962 and in Syed Bunyadul Haque v. The State (Criminal Revision Application No. 394 of 1961) decided on 9‑10‑1962. Mr. Abdul Kadir Shaikh, the learned Assistant Advocate‑General addressed us at length upon these conditions contained in these two orders particularly the conditions requiring the sureties to be of a certain class and financial status, paying a certain amount of annual land revenue, residing within certain geographical limits and being in a position to control the activities of the respondent. Mr. Shaikh also referred us to a wealth of case‑law on the question of the propriety and legality of these conditions which cases we propose to consider in detail below.

9. The first and the earliest of the reported case cited before us is to be found in Emperor v. Din Mohammad (3 SLR 168). In this case it was held by a Bench of the former Court of the Judicial Commissioner for Sind that a Magistrate may in proceedings under Chapter VIII of the Criminal Procedure Code fairly demand that the sureties tendered should be possessed of a reasonable degree of social importance and influence to control the accused and if not so satisfied he may reject them under section 122, Cr. P. C. Again at page 239 of the same Report in the case of Jan Mohammad v. The Crown (3 SLR 239) it was held by a Bench of that Court that the condition imposed by a Magis trate in an order under section 112, Cr. P. C. that the sureties should belong to a class of Zamindars holding not less than 20 acres of land round Larkana was not an illegal condition.

10. In Imperator v. Piral (5 SLR 10), the S. D. M., Larkana ordered the accused to enter into a bond along with sureties bound in the like amount who should be men of good character, means and standing, living near the accused, and either possessed of consider able landed property or else paying income‑tax. The accused went in revision against this order which was upheld by the Court of the Judicial Commissioner for Sind with the only modification that the amount of the security required was reduced in view of the provisions of proviso 2 to section 118 which required that the amount of the bond should not be excessive or prohibitive. The Court required that the amount should be fixed after considera tion of the station in life of the accused.

11. Mr. Abdul Kadir Shaikh then referred us to two cases of Mohammad Ibrahim v. The Crown and Jumo v. The Crown (8 S L R 173 & 229). The first of these cases is not very much in point as it deals with the discretion to be exercised by a Magistrate when rejecting sureties under section 122, Cr. P. C. Nevertheless, it was held in this case that‑

"the object of Chapter VIII of the Criminal Procedure Code is not to consign bad characters to jail, but to prevent their committing offences, and to allay public apprehension."

The High Court went on to suggest in this case that‑

"it is sufficient that the proposed surety is in a position to ascertain how the accused is behaving and to be of such character and standing as not to hesitate to apply for cancella tion of his bond if he saw risk of forfeiture."

In the case reported at page 229 of ,this book (8 S L R) a Bench of that Court held that‑

"an order under section 112, Criminal Procedure Code, requiring the accused to find sureties, who shall be neighbour ing Zamindars paying certain assessment, is valid."

12. The last of the Sind cases referred to by the A. A. G. is to be found in Allahdad and others v. The Crown (1924 Sind 120) where it was stated‑

"the conditions that the sureties asked for should be Zamindars owning certain amount of land or paying a certain amount of income‑tax and living in the neighbourhood were not so severe that the accused would have difficulty in obtaining them. Such conditions are common in Sind and they are not unreasonable."

13. Mr. Shaikh then referred us to four cases from Allahabad the first of which is Queen‑Empress v. Rahim Bakhsh (I L R 20 All. 206). The point emphasised in this case was that the sureties to be furnished in cases under Chapter VIII should not be from such a distance as would make it unlikely for them to exercise control over the man for whom they were willing to stand surety. Similarly in Emperor v. Nabbu Khan (I L R 24 All. 471) it was held that‑

"a Court in ordering security for good behaviour to be given with sureties is competent to assign some geographical limits within which the sureties required must reside."

In Sheikh Zikri v. Emperor (12 Cr. L J 472) the view was expressed by a Single Judge of the Allahabad High Court that it was unnecessary to demand that the surety should be a resident of any particular r place provided the Magistrate was satisfied that he could exercise proper influence over the person who had been bound over. But, it seems to us, that unless the sureties reside within certain geographical limits of the person bound over, it would be extremely difficult if not altogether impossible for them to exercise control over his activities.

14. The fourth and the last case from Allahabad is a Full Bench judgment of five Judges of that High Court and it is the case of Narain Sahai and others v. Emperor (A I R 1946 All. 333). The Chief Justice Sir Iqbal Ahmad in the course of his judgment used these words :‑

"By virtue of section 112, Cr. P. C. a Magistrate is, however, authorised to prescribe reasonable geographical limits for the residence of the sureties or that they should be of respectable character and not men of doubtful social status."

His Lordship expressed himself in agreement with the view of the Calcutta High Court that‑

"the primary test as to the fitness of a surety is whether the surety can exercise proper control over the person who has been bound over."

15. In view of this position of the case‑law on this question of the conditions that can be required of a surety demanded under section 112, Cr. P. C. and we must express our gratitude to the learned Assistant Advocate‑General for his assistance to us in this case‑we feel that the conditions imposed upon the sureties in the two orders under sections 112 and 117 (3), Cr. P. C. now before us cannot be said to be illegal conditions. There is no doubt in our minds that these conditions are onerous and perhaps even difficult of compliance. But, nevertheless, such conditions having been accepted for a large number of years commencing with 3 Sind Law Reporter of 1909 and by different Courts as being within the competence of the language of section 112, Cr. P. C. we cannot now consistently with these reported cases hold that these conditions are beyond the scope of section 112, Cr. P. C. Such a view was no doubt entertained in several quarters and we find that in Lalu Bux v. The State (Criminal Reference No. 193 of 1962) decided by one of us on 20‑8‑1962 the same Assistant Advocate‑General Mr. Abdul Kadir Shaikh contended in that case that the same conditions were far beyond the scope of section 112, Cr. P. C. Again, one of us has in Criminal Revision Application No. 394 of 1962 held that these conditions are plainly beyond the scope of section 112, Cr. P. C. and are, therefore, illegal. It was to reconsider these earlier decisions that this Division Bench was constituted and having been taken through case law for the past almost 60 years on this subject we feel we cannot depart from the view consistently held that such conditions are within the compliance of an order under section 112, Cr. P. C.

16. Of course, as has been remarked by one of us in the judgment in Criminal Reference No. 193 of 1962‑

"the order should never be punitive because the object of proceedings under section 110, Cr. P. C. is to see that there is a check on the activities of the respondents and the idea is not necessarily to keep them confined in jail."

Orders made under section 112, Cr. P. C. should not contain conditions which are incapable of compliance and, therefore, only entail the enforced incarceration of the accused. Although section 112 Cr. P. C. deals only with "the number, character and class of sureties if any required" without imposing any restriction or limit thereon, yet proviso 2 to section 118 which is the section under which the final order is passed expressly requires "that the amount of every bond shall be fixed with due regard to the circumstances of the case and shall not be excessive". Since this proviso imposes a restriction on the amount of the bond to be required in each case it may be said that legally the only limit imposed by the law as it stands is upon the amount of the bond and not upon the number, character and class of sureties. We repeat. the whole purpose of proceedings under Chapter V III is preventive and not punitive and that the purpose of this Chapter would be defeated if by imposing harsh and inoperative conditions the accused is compelled to languish in jail and is thereby being punished for an offence that he has not committed.

17. In conclusion, then, we would hold that the conditions imposed upon the sureties in the two orders in this case although not illegal are yet onerous, harsh and difficult of performance. We have already in para. 7 above indicated that the order under section 117 (3), Cr. P. C. is unjustified on the facts of this case and we, therefore, quash this order. With regard to the order under section 112, Cr. P. C. we find that this order was made some 16 or 17 months ago and that it was for a period of only 12 months. The respondent having been throughout this time in custody until L his release on bail by this High Court in May of this year, we feel it would be futile to allow this order to continue. Accordingly, we quash this order under section 112, Cr. P. C. also. However, we leave it to the S. D. M., Mirpurkhas in case he should still feel it necessary to proceed against this respondent again under Chapter VI11, Cr. P. C. to institute fresh proceedings against him under this Chapter.

K. B. A.

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