P L D 1964 (W (PLP)

State v. Hyder P L D 1963 Kar. 673 ref. Pir Illahi Bux and Aziz‑ullah Sheikh for applicants. Zahoorul Haq for A. A.‑G. for the State. Date of hearing : 30th September 1963. This order will dispose of Criminal Reference No. 322/1963 and Criminal Revision Application No. 569 of 1963.

2. The facts giving rise to these two matters are that on 16‑2‑1963 the S. H. O. Rukhan filed a complaint under section 110 Cr. P. C. in the Court of the S. D. M. Dadu, against the four respondents, namely, Bahadur son of Dhani Bux, Umedali son of Abdul Hadi, Tooh son of Bhaikhan and Fakiro son of Sohrab. That same day, the S. D. M. Dadu, passed an order under section 112, Cr. P. C., against the four respondents calling upon them to show cause why they should not be ordered to execute a bond each in the sum of Rs. 2,000 for maintaining good behaviour for the period of twelve months with two sureties each solvent in the like amount and for the said period. It was further ordered that the sureties should be respectable persons of land holding class, paying land assessment not less than Rs. 500 per annum, residing within the radius of five miles of the respondents and able to control their movements to the satis faction of the Court making the order. It further appears that on that same day 16‑2‑1963 the complainant, namely, the S. H. O. Rukhan filed a complaint under section 117(3), Cr. P. C., praying for emergent orders under the provisions of this sub section of section 117, Cr. P. C. He was examined on oath by, the S. D. M. Dadu when he repeated the very allegations contained in his original complaint. An order was then passed under section 117(3), Cr. P. C., by the Magistrate concerned setting out again these same allegations as contained in the original complaint and in the evidence recorded by him that day of the S. H. O., Rukhan, against which a revision application was preferred by Umedali alone before the Sessions Judge, Dadu, resulting in the present reference being Criminal Reference No. 322/1963. The learned Sessions Judge has recommended that the order under section 117(3), Cr. P. C., be quashed as it has been written in a haphazard and routine manner and the conditions imposed therein are unwarranted by law.

3. Soon after this reference was admitted to a regular hearing in this Court, Criminal Revision Application No. 569 of 1963 on behalf of Bahadur and Tooh was filed by Mr. Azizullah Shaikh Barrister‑at‑law, in this High Court praying for the quashment of the order made against them by the S. D. M. Dadu, under section 117(3), Cr. P. C. It is also prayed that this revision application be heard along with Criminal Reference No. 322 of 1963.

4. I have heard today Mr. Zahoorul Haq on behalf of the State, Pir Illahi Bux on behalf of Umedali and Mr. Azizullah Shaikh on behalf of Bahadur and Tooh.

5. The State counsel does not support the reference and opposes the criminal revision application. According to him, the order sought to be quashed is not a haphazard or routinous order but one containing almost the entire deposition of the S. H. O. in support of his application under section 117(3), Cr. P. C. On the other hand, the two learned Advocates have pointed out that the order sought to be quashed is a repetition of the complaint and of the evidence of the comp lainant recorded in Court that same day by the learned S. D. M. Dadu, in support of his application under section 117(3), Cr. P. C. They have also submitted that the evidence of the S. H. O. is directed principally against the respondent Bahadur and that it contains a list of his previous convictions and cases sent up against him in which he has been acquitted. They contend that no enquiry as contemplated by section 117(3), Cr. P. C. has, in fact, been held by the Magistrate and they rely upon para. 7 of the judgment of a Division Bench of this Court in the case of The State v. Hyder (P L D 1963 Kar. 673). Mr, Azizullah has further pointed out that the learned Magistrate has not considered the case as against each accused and has not applied his mind to the fact whether an emergency as contemplated by this subsection does, in fact, exist necessitating immediate measures.

6. I have perused the complaint of the S. H. O. the order under section 112, Cr. P. C., the evidence of the S. H. O. as recorded on that day in support of this application under section 117(3), Cr. P. C., and the order of the S. D. M. made under this subsection. To me, it is apparent that the first ground urged by the learned Sessions Judge, Dadu, in support of his reference, namely, that the qualifications imposed by the S.D.M., Dadu, upon the sureties are unwarranted by law is a ground that has amply been answered by the judgment of this High Court in the case of The State v. Hyder referred to above. It has clearly been pointed out in that case that such conditions though onerous and harsh are yet not illegal and are contemplated by law. There remains, however, the second ground urged by the learned Sessions Judge in support of this reference, namely, that the order under section 117(3) Cr. P. C, passed by the S. D. M., Dadu, has been written in a haphazard and routine way without the learned Magistrate applying his mind to the facts of the case. Here, I observe that the Magistrate has not discussed the case as against each of the four respondents. He has contented himself by merely setting out in his order the gist of the evidence of the S. H. O. which, I find on comparison, is a mere repetition of his original complaint. One isolated incident of theft is alleged against Umedali and Tooh and similar by another incident of theft alleged against respondent Fakiro. Then comes a long list of the misdeeds of respondent Bahadur but no attempt has been made to analyze the evidence against each respondent showing the necessity for taking immediate measures against him. In the case of The State v. Hyder mentioned above it was held by a Bench of this High Court :‑ "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 breach of the peace or disturbance of the public tranquillity or for the public safety etc. In order to determine whether such an emergency exists an enquiry is to be held." According to me, merely recording the statement of the complainant S. H O. in which he repeats his complaint without examining some independent witnesses of the locality is no enquiry as contemplated by the provisions of this subsection. I would; therefore, accept the reference, allow the revision petition and set aside the order under section 117(3), Cr. P. C. of the S. D. M., Dadu, in this case. These papers may be returned to the Court concerned for further proceeding with the case under section 110, Cr. P. C., against these respondents. In the meanwhile, the respondents will continue to be on the same bail granted to them by the Sessions Judge and this High Court. S. Q./K. B. A. Reference accepted. Revision allowed.