2001 PLP 2179 (YLR)

Date of hearing: 23rd May, 2001. Applicant Mst. Sajida Begum has sought quashment of the proceedings initiated against her by Sub-Divisional Magistrate, Eid Gah, Karachi under sections 107/117, Cr.P.C.

2. The case emanates from a written complaint, addressed to S.H.O., Police Station Napier, Karachi South, by Mst. Shehnaz Begum stating therein that her father Ashiq Hussain died on 10-4-2000 leaving behind three sons and five daughters and their mother. Her father had two flats in Sangeet Building, Thokhar Gali, Napier Road, Karachi. After the death of their father Mst. Sajida. Begum (the applicant herein) insulted her mother and when their brother Muhammad Aslam intervened she tiled a false Case against him at Napier Police Station which is pending in Court. She alleged that a dispute existed over these flats and it is apprehended that at any time a murder may take place. On 27-2-2001 S.H.O., Police Station Napier submitted a report under sections 107/117, Cr.P.C. alleging therein that there is a dispute between the parties over properties left by Ashiq Hussain and- their often quarrel among themselves whenever the share is demanded from Mst. Sajida Begum, the applicant, as such there is apprehension of breach of peace. Upon this report notice under section 112, Cr.P.C, was served on the applicant on 28-2-2001 calling upon her to show cause why she should not be ordered to execute a personal bond in the sum of Rs.10,000 for keeping good behaviour for a period of one year.

3. The applicant has challenged the above proceedings, inter alia, on the ground that there existed no dispute of the kind alleged in the application and that the order under section 112, Cr.P.C. was illegal. According to applicant the matter is purely civil in nature and the Magistrate has signed a photostat copy/pro forma order. The learned Sub-Divisional Magistrate has stated in his comments that notice under section 112, Cr.P.C. has been served upon the parties to maintain peace and tranquillity and inquiry is being conducted under section 117, Cr.P.C.

4. A bare perusal of the R & Ps. shows that the proceedings are based, primarily on the written complaint of Mst. Shahnaz Begum sister of applicant Mst. Sajida wherein it is admitted that there is dispute between the parties over the properties including two flats left by their father. Mst. Sajida allegedly, used abusive language on one occasion and when their brother took an exception to it she lodged report with Napier Police, which according to Mst. Shahnaz Begum, was false. It has specifically been stated in the complaint that quarrels ensue on very trifling matters and as such there is apprehension of breach of peace. In her statement recorded at police station on 25-2-2001 she reiterated the same facts and expressed that they are peace-loving persons but Mst. Sajida often quarrels with them on very small matters and there is apprehension of a serious incident. This is the entire material that has led to launching of the proceedings under section 107 read with 117, Cr.P.C.

5. Learned counsel for applicant, vehemently argued that there is no substance on record to warrant aforementioned proceedings and the learned S.D.M has in mechanical manner acted upon police report. Learned State Counsel was of the view that small quarrels are likely to result in bigger incidents and there is no harm if the parties are called upon by the Magistrate to keep peace and execute a bond in that behalf.

6. The contention of learned counsel for applicant is founded on the predominant essentials of the concept of apprehension of breach of peace envisaged under section 107, Cr.P.C. which according to him are badly lacking. The contention is not without force. In such proceedings the prime factor is the satisfaction of Magistrate, based on information that a person is likely to commit a breach of the peace or, disturb the public tranquillity or to do any wrongful act that may probably occasion a breach of peace, or disturb the public tranquillity. But, it may be emphasized that such information must show strong probability of breach of peace and not mere possibility. It should not be vague and general but noticeably distinct and definite, disclosing tangible facts and details coupled with evidence of some specific conduct showing that the person is likely to commit breach of the peace. The Magistrate is not supposed to act unscrupulously on police report if the afore-mentioned essential ingredients are lacking.

7. In the instant case admittedly, the differences between the parties relate to civil dispute, precisely concerning the question of inheritance. Small quarrels among sisters and brothers do occur on such matters; mere use of harsh or insulting words by one party shall not by itself lead to a conclusion that there was apprehension of breach of peace. If one of the parties, earlier, lodged a report with police and such case was pending decision in the Court, the lodging of report shall not justify initiation of proceedings under section 107, Cr.P.C. From the contents of the complaint it can only be gathered that the complainant wants to shift the civil dispute to Criminal Court in the first instance and then get it resolved. Indeed, the 'material on the basis of which action under section

107. Cr.P.C. could justifiably be initiated is not enough with instant case to satisfy the requirements as discussed above and warrant such an action.

8. In consequence of the above discussion, I am inclined to hold that the proceedings are not only a futile exercise but amount to abuse of process of Court and are without legal basis. As a result the application is allowed and the proceedings are quashed. H.B.T./S-135/K Application allowed.