P L D 1975 Karachi 90 (PLP)

... 117(3)‑Security for good behaviour‑Application of mind by Magistrate upon evidence properly recorded and recording of reasons for order‑Necessary pre‑requisite to taking action under S. 117(3) Bald statement of his satisfaction by Magistrate‑Mere perfunctory attempt at compliance of section and no substitute for reasons. Usman Ghani Rashid, Asstt. A.‑G. for Applicant. Nemo for Respondents (absent). Date of hearing : 28th May 1974. On the 27th November 1972, the S. H. O., C. I. A., Larkana laid information in the Court of the Mukhtiarkar and 1st Class Magistrate, Kambar asking ‑for action to be taken against the respondents under section 107, Criminal Procedure Code. In this information it was alleged that the respondents were .causing a breach of the peace since they had a dispute with one Mashooq over land who on that account apprehended danger to his life. Upon the same date the learned Magistrate passed an order under section 112, Criminal Procedure Code calling upon the respondents to show cause why they should not be ordered to execute a bond in the sum of Rs. 2,000 only for keeping the peace for a period of twelve months. He then examined on the same day two witnesses namely Mashooq and Piral and went on to pass an order under section 117(3), Criminal Procedure Code requiring them to furnish a bond immediately and, this not being furnished, they were remanded to custody.

2. An application for revision was made to the Court of Session and learned 1st Additional Sessions Judge, Larkana has recommended to this Court that the order under section 117(3), Criminal Procedure Code be set aside. The first reason that the learned Judge assigns for thinking that the order is illegal is that there was no separate inquiry held by the Magistrate for the purpose of passing an order under section 117(3). He, no doubt examined witnesses in the course of the inquiry under section 112, Criminal Procedure Code and as to the merits of that evidence I am not at present making any comment. The learned Judge, however, appears to be of the view that a prerequisite for an order under section 117(3) is that there must be a separately conducted inquiry as a result of the consideration of the evidence in which the learned Magistrate must come to such a conclusion as is contemplated by section 117, Criminal Procedure Code for the making of an order under subsection (3). Reliance for this purpose is placed by him upon a Division Bench case of the Karachi Bench of the former West Pakistan High Court reported as State v. Haider (P L D 1963 Kar. 673). In this case after an order was made under section 112 upon some subsequent date an order was also made under section 117(3). Four witnesses had been examined in the case but the High Court came to the conclusion that the order under section 117(3) was not justified. Clearly the reason which appealed to the learned Judges was, as they themselves say, that the evidence of those witnesses did not "contain any material that could call for an emergent order under section 117(3), Criminal Procedure Code". They then went on to observe "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 disturbance of the public tranquility or for the public safety etc. In order to determine whether such an 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 sec tion 117(3), Cr. P. C."

3. The rest of the judgment in that case dealt with the question as to what kind of conditions can be imposed as to sureties and is not material for my present purposes. I am entirely unable to see in this passage or in the provision of the law itself which contemplates that a separately conducted inquiry and evidence recorded therein is necessary before an order under section 117(3) can be passed. That order is clearly in the nature of an interlocutory order in the course of the proceedings under section 112 and I can see no reason at all why the evidence recorded in the main case should not be used for the purpose of grounding the reasons which are necessary before an order under that subsection can be made. If this were all I would reject this reference.

4. The order under section 117(3), however, suffers from other defects as well. In the first place it seems that no opportunity was given to the respondents for cross‑examining the witnesses. Now the deposition of a witness in regard to which an opportunity for cross‑examination has not been given is not really evidence at all. I can of course entirely understand that the gravity and the emergency of the situation may be such that a long adjournment for the purpose of engaging an Advocate might not, in a given case, be possible but some reasonable opportunity must be given. Since, however, the record of the case is not clear upon this point I do not found this judgment‑upon that point either.

5. A bare reference to the language of section 117(3) shows that an order under that provision can only be made if the Magistrate "considers that immediate measures are necessary for the prevention of a breach of the peace or disturbance of the public tranquility or the commission of any offence or for the public safety". It is certainly not an order that can be passed in routine. Time and again this Court has pointed out the require ments of section 117 and it is to be regretted, that despite these pronounce ments of the High Court, Magistrates continue to pass orders of this kind in complete disregard of the language of the section and of the judgments of this Court. It is necessary that the Magistrate should apply his mind and, c upon evidence properly recorded, come to this conclusion and moreover, as is required by subsection (3), record his reasons, before taking action under this provision. The only reasons which the learned Magistrate assigns in his order are these:‑ "Whereas from the evidence on record I am satisfied that the complainant and his P. Ws. apprehend danger of their lives and property at your hands. Therefore I find that there is every likelihood of breach of peace and public tranquillity. In order to prevent any breach of peace and disturbance of public tranquillity in general, I pass order under section 117(3), Cr. P. C. against you all respondents present in the Court." Now this is very far from being any record of reasons at all. It is merely an attempt perfunctorily to comply with the section.

6. I have, therefore, come to the conclusion that the order under section 117(3) of the Criminal Procedure Code passed in this case is bad and, therefore, set it aside. If the respondents are in custody on account of this order and their failure to furnish sureties they shall be released forthwith. S. A.H. Reference accepted.