Find a Lawyer

Criminal Revision No. 21 of 1963, decided on 20th May 1963.

, S. 107‑"Likelihood of breach of peace"‑‑Condition precedent for demanding security ---Magistrate failing to record any finding that person proceeded against was "likely to commit breach of peace or do any other acts" stated in S. 107‑Demand of security, held, wholly unjustified ---Mere "danger" or "possibility of breach of peace"‑Not sufficient for initiating proceedings‑Provisions of section can be invoked only on finding based on legal evidence that breach of peace is imminent or probable‑Burden of proof lies on prosecution.

Qasim Imam for Petitioner.

S. Usman Ali Shah for Respondent.

Sher Bahadur Khan A. A.‑G. for the State.

Date of hearing: 20th May 1963.

The question in this case is whether an order ought to have been made against the petitioner under section 107, Cr. P. C., when there is no finding whatsoever by the learned Magistrate demanding the penalty of the security that there was any "likelihood" of breach of peace, and the order is founded on the events that had been the subject of judicial pronouncement on the complainant under section 420, P. P. C. which resulted in the acquittal of the petitioner, and when on appeal the learned District Magistrate held "that the relations between the parties are still strained and danger of breach of peace exists."

2. The admitted facts giving rise to this revision petition are that the petitioner bad obtained a provisional transfer order in regard to house No. 3115 situated in Kehal, Abbottabad. The petitioner allegedly approached Mst. Iqbal Begum (hereinafter to be referred to as the complainant) and expressed his willingness to transfer half of the house to her for Rs.26,000 on the assurance that the value of the house was Rs. 52,000 and believing in the assurance of the petitioner she paid Rs. 26,000 for one‑half share of the house. Later on, she came to know that the reserved price of the house was Rs. 16,800. The y complainant on 15th December 1960, moved the Deputy Commis sioner, Hazara, that the petitioner bad committed an offence under section 420, P. P. C. The Deputy Commissioner, on 17th January 1961, recorded the following endorsement :‑

"Illaqa Magistrate will look into this and take necessary action in accordance with law."

Treating the application as complaint, proceedings under section 420, P. P. C. were initiated against the petitioner, but on 15th December 1961, Mr. Mohib‑ur‑Rehman Kayani, section‑30 Magistrate, acquitted the accused with the following obser vation :‑

"Taking into view all these facts, I find that the complainant has hopelessly failed to bring the charge home against the accused. The allegations seem to be the result of some grudge over the common use of the house in dispute between the parties."

3. Khanzada Abdus Salam Khan, Assistant Commissioner and Magistrate, 1st Class, Abbottabad, suo motu treating the appli cation dated 15th December 1960, as the basis of information (which had been treated as a complaint under section 420) issued a show‑cause notice against the petitioner under section 107, sub section (1). The learned Magistrate examined the complainant and Ghulam Husain, brother of the husband of the complainant, in support of the initiation of the proceedings under section 107. The complainant after reiterating the story that she had been cheated by the petitioner by getting more money for the price of the house stated that the petitioner teased her and pelted stones at her and that the petitioner was dangerous and he should be bound down. The petitioner examined Litafat Khan, Malik Jehandad, Chairman, Union Council, Kakul, and Sardar Muhammad Anwar in defence, all of whom gave a good chit to the petitioner and said that he was a peace‑loving person and that there was no apprehension of breach of peace. Sardar Muhammad Anwar, after confirming the statements of other D. Ws. that there was no apprehension of breach of peace, went to the extent of saying that the real object of the complainant was to coerce the petitioner.

4. The learned Magistrate by his order dated 20th August 1962, ordered the petitioner to furnish security to keep peace in Rs. 2,C00 with two sureties for a period of one year. The reason which found favour with the learned Magistrate in recording the order may be better reproduced in the language of the Magistrate, when he observed

"From the statement of the petitioner I am convinced that the respondent received a sum of Rs. 26,000 from her by fraudulent means and certainly when the actual cost of the house is far less than the transacted amount, Ijaz Ali Shah would have been chasing her."

5. It will be manifest from a reading of the operative part of the order of the learned Magistrate that

(1) the Magistrate conspicuously omitted to address himself to the question of likelihood of breach of peace, which is a condition precedent for demanded security,

(2) the only basis for demanding the security is the complaint under section 420 instituted against the petitioner by Mst. Iqbal Begum, which, as already indicated, resulted in the acquittal of the petitioner, and

(3) the learned Magistrate, contrary to the order of the acquittal, recorded a finding that the petitioner "received a sum of Rs. 26,000 from her by fraudulent means."

6. On appeal by the petitioner the learned District Magis trate, while maintaining the order of furnishing the security, reduced the number of sureties from two to one, as he thought that the relationship between the parties was strained and "danger of breach of peace exists".

7. Mr. Qasim Imam, the learned counsel for the petitioner, complained that security under section 107 could not be demanded unless the Magistrate had recorded a finding that the person is "likely" to commit a breach of peace or do any of the other acts mentioned in the section, and that in the instant case the learned Magistrate had taken the allegation of the complainant of being cheated as a basis for ordering security without recording a finding which is a "must" before any person can be bound down that the petitioner was "likely to commit breach of peace." It was also argued that the learned District Magistrate had failed to appreciate the real point that proceedings under section 107 could be taken only when it has been clearly proved by the prosecution that a breach of peace or disturbance of public tranquility was likely and the mere "danger" or possibility of breach of peace could not be made a ground of ordering a party to be bound over to keep peace.

8. S. Usman Ali Shah, the learned counsel for the respon dent, on the other hand, to justify the order of the learned Magistrate, argued that the complaint had been cheated of money and the relation between them was strained and as such the impugned order was well‑founded.

9. Since the question raised in the petition was of consider able importance, I directed that notice be issued to the Additional Advocate‑General. Mr. Sher Bahadur Khan, learned A. A.‑G., frankly conceded that on the facts and circumstances of the instant case, the order of furnishing the security was not justified, in that the learned Magistrate altogether failed to record any finding whatsoever in regard to the breach of peace, and the learned District Magistrate in appeal had not held that there was "likelihood" of breach of peace, but had proceeded to take action against the petitioner under the mistaken belief that possibility, or danger of breach of peace was sufficient ground for instituting proceedings under section 107.

10. On a careful review of the evidence and giving the arguments addressed at the Bar my anxious consideration, I have formed the opinion that in the instant case the order of the learned Magistrate demanding security was wholly unjustified for the short and good reason that he failed to record any finding whatsoever that the petitioner was "likely to commit a breach of peace or do any other acts", stated in section 107, and that such a finding is indispensable preliminary of demanding security.1 As regards the order of the District Magistrate on appeal, the learned District Magistrate appears to be labouring under the mistaken view of law that a "danger of breach of peace or possibility of breach of peace" could be considered sufficient ground for initiating proceedings under section 107 and justify order of demand of security. The provisions of section 107 are at times not fully appreciated. Some of the Magistrates, without realising the full import of the language of section 107, call in aid the provisions of section 107 on the mere fact that enmity or ill‑feelings exist between the two parties or because the ill‑feelings between the parties are running high or because there is bare possibility or danger of peace. It is important to point out that the provisions of section 107 can be invoked only when there is a clear‑cut finding based on legal evidence that a breach of peace is imminent or probable. It is also important to note that the burden of proof in proceedings under section 107, like a case under the Pakistan Penal Code, lies on the prosecution and the prosecution alone, to give a clear proof of the acts or specific conduct on the part of the person proceeded against from which a reasonable immediate inference can be drawn that a breach of peace or disturbance of public tranquility is likely. The Magistrates who are entrusted with the responsible duty of initiating proceedings under section 107 should well remember that the provisions of section 107 are a curtailment of the liberty of the citizen and it is, therefore, incumbent upon them that while demanding security from any citizen they must be fully satisfied on legal evidence, like any other offence under the Penal Code, that a breach of peace is imminent or probable, and that they should not be carried away by administrative or executive consideration or propriety to out step the provisions of section 107 or permit private individual, or for the matter or that police, to use section 107 as an instrument of harassment or coercion.

11. For all the foregoing reasons, I accept the revision petition, set aside the orders of the Courts below and discharge the petitioner from his bond.

K. B. A. Petition accepted.

Find a Lawyer Near You

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