1976 P Cr (PLP)

The brief facts of the case are that the petitioner had joined the Excise & Taxation Department to 1960‑

61. According to him, he worked on the Excise side only upto 1931. Subsequently, in 1972, pursuant to a quarrel with his officers he was charge‑sheeted for insubordination and transferred to Property Taxation Wing. Thereafter on 6‑11‑1974, he was arrested in connection with a case of supply of poisonous liquor to public which caused deaths of some persons. His arrest was challenged to this Court through a writ petition. However, subsequently the petition became infructuous as the detention orders were withdrawn by the Government. Despite it he was not released from the custody and the present proceedings were initiated against him on the grounds that he was involved in a case of supplying poisonous liquor to several persons which caused their deaths and that he used to support a group which indulged in this business. A report was lodged on 6‑11‑1974 and a notice under section 112, Cr. P. C., was issued calling upon him to show cause as to why he should not be bound down under sureties in the sum of Rs. 5,000 to keep good behaviour for a period of three years under section 110, Cr. P. C. The allegations mentioned in the notice were that the petitioner was a habituate mischief‑monger and he invariably indulged in the commission and abetment of offences involving the breach of peace. Subsequently, an order under section 117(3), Cr. P. C., calling upon him to furnish sureties was also passed on r‑12‑1974 but the space to show the extent of amount of sureties which were to be furnished by trim is left blank in this notice. From this it appears that the lower Court acted carelessly and also in a haste.

3. The contention of the learned counsel for the petitioner is that the allegations levelled against the petitioner are not relatable to section 110 Cr. P. C., though, the same may be covered by section 107, Cr. P. C., or by some other provision of law. Section 110, Cr. P. C., reads as under:‑ "Section 110, Cr. P. C.‑--Whenever a, District Magistrate, or Sub-Divisional Magistrate or Magistrate of the first class specially empowered in this behalf by the Provincial Government receives informations that any person within the local limits of his jurisdiction:‑‑ (a) is by habit a robber, house‑breaker, thief, (or forger), or (b) is by habit a receiver of stolen property knowing the same to have been stolen, or (e) habitually protects or harbours thieves or aids, in the concealment or disposal of stolen property, or (d) habitually commits, or attempts to commit, or abets the commission of the offence of kidnapping, abduction, extortion, cheating or mischief, or any offence punishable under Chapter XII of the Pakistan Penal Code, or under section 489‑A, section 489‑B. section 489‑C or section 489‑D of the Code, or (e) habitually commits, or attempts to commit, or abets the commission of offence involving a breach of the peace, or (j) is so desperate and dangerous as to render his being at large without security hazardous to the community, such Magistrate may, in manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond, with sureties, for his good behaviour for such period, not exceeding three years, as the Magistrate thinks fit to fix." A perusal of section 110, Cr. P. C. will show that the allegations against the petitioner do not in any way fall within the scope of section 110, Cr. P. C. What has been alleged is that he was a habitual mischief-monger and invariably indulged in the commission and abetment of offences involving the breach of the peace. As far as the first allegation is concerned, no instances have been quoted to show the involvement of the petitioner in any particular kind of offence. Section 110, Cr. P. C., is basically meant for taking preventive measures against habitual robbers, housebreakers, thieves, receivers of stolen properties, habitual protectors and harbourers of thieves, etc. Besides this, this section also applies to such persons who habitually commit or attempt to commit or abet the offences of kidnapping, abetment, extortion, cheating or mischief. Further more it applies to those persons who habitually commit or attempt or abet the commission of offences involving the breach of peace. In this case no such instance has been given whereby it can be inferred that the petitioner was a habitual offender and used to commit the offences referred to above. Simply mentioning in the complaint that be was a habitual mischief‑monger and invariably indulged in the commission and abetment of offences involving the breach of peace would not be sufficient. The witnesses cited in the complaint (Annexure "C") to support the allegations in the complaint are officials of Police or Excise Department. No independent witness has been cited. In these circumstances the proceedings against the petitioner are not tenable in law. Even if it is assumed for the sake of argument that the allegations laid down in Annexures "C" & "D" are likely to make out a case under section 110, Cr. P. C., the final order, if any, passed in this case relying solely on the testimony of the officials belonging to the Police and Excise Department would not be sustain able.

4. The learned counsel appearing for the State concedes that the allegations levelled against the petitioner are not relatable to section 110, Cr. P. C., and that no instances have been cited to support the complaint. He has also conceded that the evidence cited by the respondent is not independent and any final order based on the same would not be sustainable.

5. As a result of above discussion, I find that the continuance of proceedings against the petitioner under section 110, Cr. P. C., would amount to abuse of the process of law. The proceedings under section 110, Cr. P. C., against the petitioner pending in the Court of Assistant Commissioner and S. D. M., City, Karachi, are hereby quashed. The bail bonds, if any, submitted by him under section 117(3), Cr. P. C., or any other provision of law in connection with this case shall stand discharged. Proceedings quashed.