1994 P Cr (PLP)

(b) Criminal Procedure Code (V of 1898)

Ss. 112, 107, 117, 151 & 561-A

Quashing of proceedings

Enquiry had not yet commenced and no occasion for passing an order under subsection (3) of 5.117, Cr.P.C. had arisen

Contention that the order under S.112, Cr.P.C. could not be passed by the Magistrate unless an order under S.117(3), Cr.P.C. was passed was a fallacious approach and could not be accepted

No reasonable grounds for interference with the order passed by the Magistrate under S. 112,- Cr.P.C. were made out

Proceedings pending before the Magistrate were not quashed in circumstances. Haji Ghulam Muhammad'and 6 others v. The State 1982 P Cr. L J 777 and Syed Ijaz Ali Shah v. Mst. Maqbool Begum P L D 1963 (W.P.) Pesh. 175 ref. Sardar Muhammad Ishaq for Applicants. M. Sarwar Khan, A.A.-G. for the State. Date of hearing: 8th September, 1993. Applicants Haji Khan and four others seek the quashment of proceedings under sections 107, 117 and 151 of Cr.P.C. pending against them in the Court of A.C. and S.D.M. Orangi Town, Karachi (West). These proceedings were initiated , against the applicants on the basis of a report submitted by S.H.O. Police Station Surjani Town in which it was stated that an application was addressed by one Peer Bux to the Deputy Commissioner, West and was accompanied by some telegrams alleging therein that the applicants herein had threatened said Peer Bux with dire consequences and also to forcibly occupy village Peer Bux. This application when received at the police station was enquired into and the parties were called and it was found that there was tension between the parties and also likelihood of breach of peace. On receipt of the said report the learned S.D.M. passed order under section 112 of Cr.P.C. calling upon applicants to execute personal bond in the sum of RsS,000 with one surety in the like amount for a period of one year. Applicants have sought quashment of the said proceedings pending against them in the Court of learned S.D.M. It has been contended .by applicants' learned Advocate that the order under section 112 of Cr.P.C. is not in line with accusation in the report, that no order under section 112 of Cr.P.C. could be passed unless an order under section 117 of Cr.P.C. was passed and lastly that the learned S.D.M. passed order under section 112 of Cr.P.C. on the same day when report was submitted before him by the S.H.O. In support of these contentions learned Advocate referred to the cases of (i) Haji Ghulam Muhammad and 6 others v. The State 1982 P Cr. L J 777 and (ii) Syed Ijaz Ali Shah v. Mst. Maqbool Begum P L D 1963 (W.P.) Pesh.

175. Thp, learned A.A.-G. has opposed this application and has argued that the order under section 112 of Cr.P.C. was passed by the learned S.D.M. in accordance with law and no illegality was committed while passing such order. It is also argued that an order under section 112 of Cr.P.C. is to precede the order under section 117 df Cr.P.C. and the approach of the learned S.D.M. is neither contrary to law nor to the facts given in the report. I have heard the learned counsel and perused the record. An order under section 112 of Cr.P.C. is to be passed by a Magistrate acting under section 107, section 108, section 109 or section 110 of Cr.P.C. and it is an order in the nature of a show-cause notice to the persons complained against calling of them to show cause why they should not be entered into the bond for a term to be fixed in the order. On such order being served against the persons complained against, a bond is to be executed during the pendency of the proceedings before the Magistrate. Such order is to precede an order under section 117(3) of Cr.P.C. which provides that if after an order under section 112 has been read or explained under section 113 to a person present in Court, during enquiry as to the truth of information, if the Magistrate considers that immediate measures are necessary for the prevention of breach of peace or disturbance of the public tranquillity or the commission of any offence or for the public safety, the Magistrate may for reasons to be recorded in writing direct the persons in respect of whom the order under section 112 of Cr.P.C. has been made to execute a bond with or without surety for keeping the peace and maintaining good behaviour until the conclusion of the enquiry. It further provides that the Magistrate may detain such persons in custody until such bond is executed or in default of execution, until the enquiry is concluded. The S.D.M. on having received information from the S.H.O. Surjani Town Police Station passed order under section 112 of Cr.P.C. Since the enquiry had not yet commenced and no occasion for passing an order under subsection (3) of section 117 of Cr.P.C. arose, the contention of applicants' learned Advocate that the order under section 112 of Cr.P.C. could not be passed unless an order under section 117 of CrY.C. is passed, is a fallacious approach and cannot be accepted. Case-law referred by applicants' learned Advocate is quite distinguishable on facts and is not applicable to the facts of the case in hand. No reasonable grounds for interference with the order passed by learned S.D.M. under section 112 of Cr.P.C. are made out. The application for quashment of proceedings in these circumstances being without merit is hereby dismissed. The R&P be sent back immediately to the learned S.D.M. with direction that he shall dispose of the proceedings against the applicants within a period of six months. N.H.Q./H-369/K???????????????????????????????????????????????????????????????????? Application dismissed.