1989 PLP 2657 (MLD)

(c) Criminal Procedure Code (V of 1898)

Ss. 107, 112, 117 & 561-A--Quashing of proceedings--Police report and order of Court passed under 5.112, Cr.P.C. not disclosing a case tin which proceedings under S.107/117, Cr.P.C. could be taken against accused--Proceedings drawn against accused were ordered to be quashed. Sardar Muhammad Ishaque for Petitioner. Nemo for the State. Date of hearing: 18th April, 1989. The petitioner is being proceeded against under section 107/117, Cr.P.C. Order under section 112, Cr.P.C. has been passed against lite appellant and he is aggrieved from it on the following grounds. Firstly, that he could not be detained and remanded to judicial custody and that the Court cannot ask the applicant (the word used in the petition is `opponent' which appears to be a typing error) to furnish surety. Secondly, the remand report discloses a dispute of civil nature which has been unnecessarily given a criminal twist. Counsel of the appellant has been heard and record perused. No one has appeared for the State although on the last date Mr. A.A. Mohammadally, AA.-G. was present.

2. I am of the view that no fault can be found against the order under section 112, Cr.P.C. passed by the Court on 26th February, 1989. It sets forth the substance of the information received, the amount of the bond to be executed, the term for which it is to be in force, and the number, character and class of sureties required. It says nothing more or less than what is contemplated by section 112, Cr.P.C. while it is true that order to furnish surety at once or face judicial remand in case of failure to furnish surety cannot be passed unless the requirements of section 117(3), Cr.P.C. are complied with as observed in Miral v. The State 1978 P Cr. L J 161 which was relied upon by learned counsel of the applicant, the applicant had failed to show that action under section 117(3), Cr.P.C. had not been taken by learned S.D.M.

3. I, however, agree with learned counsel of the applicant that the police report did not reveal such a state of affairs as to warrant an action under section 107/117/151, Cr.P.C. The applicant, his wife and wife's brother had together come to police station. They obviously did not take the law into their own hands; otherwise they would not have gone to police station. Besides the police report does in fact disclose a dispute of civil nature between the applicant on one hand and his wife and wife's brother on the other. The police report takes for granted what applicant's wife Parveen stated before the police. There was even no prima facie reason for the police to believe that Parveen was the third wife of the applicant and that applicant took two more wives after marrying Parveen. Even if there was any reasonable ground for the police to believe the story of Mst. Parveen, it does not disclose any offence. Our law permits a man to have four wives and per police report, Mst. Parveen did not state that the applicant, had all the five women as wives at one and the `same time. Even if applicant is guilty of such an offence, he should be proceeded with for it but no action under section 107/117, Cr.P.C. is called for. Besides, the police report does not disclose that the applicant is in the habit of fraudulently marrying different women without proper judicial process. It appears that learned Assistant Commissioner and S.D.M. Liaquatabad, Karachi did not apply his mind to the facts of the case and blindly signed on the order under section 112, Cr.P.C. placed before him for signature. It is a matter of regret that he should have taken the liberty of a citizen so lightly.

4. Since the police report and order under section 112, Cr.P.C. do not disclose a case in which 107/117, Cr.P.C. proceedings should be taken against the applicant. I would quash the proceedings drawn against the applicant. He had furnished surety in this Court. His bail bond stands discharged. H.B.T./M-116/K Proceedings quashed.