P L D 1976 Karachi 1073 (PLP)

Nemo for Respondent. Date of hearing : 8th June 1976. This is a reference under section 438, Cr. P. C. by the Sessions Judge. Khaipur Mirs, recommending the quashment of interim orders dated 3-7-1972 passed by the S. D. M. at Mirwah, Kot Diji, under section 117 (3), Cr. P. C. whereby the learned Magistrate has directed respondent Mubarak son of Mouledino to execute a bond in the suet of Rs. 5,000 with two sureties in the like amount.

2. A police report by S. H. O., Kot Diji Police Station was submitted before the learned Magistrate against respondent Mubarak and three others who were shown as absconders, for proceeding under section 110, Cr. P. C. on 21-6-1972, on the allegation that the respondent was a habitual receiver of stolen properties, that he was harbourer and thief, and desperate and dangerous person, that he went about with unlicensed weapons and that his remaining at large without security was hazardous to the community. The learned Magistrate made an order under section 112, Cr. P. C. on 21-6-1972 against all the four persons proceeded against includ ing respondent Mubarak. The respondent who was produced was remanded to custody for want of required surety. On 3.7-1972, the learned Magistrate acting on the application of Prosecuting Sub-Inspector Kot Diji, passed the impugned order under section 117(3), Cr. P. C. on the basis of the report received by him earlier as stated above, requiring the respondent to "execute a bond in the sum of Rs 5,000 and furnish two solvent sureties in the like amount, belonging to the land owning class of Kot Diji Taluka, capable of exercising control over him, to the satisfaction of the Court until the conclusion of the enquiry."

3. The learned Sessions Judge has recommended the quashment of the aforesaid interim order on the ground that the same is in clear violation of the provisions of section 117(3), Cr. P. C. because no enquiry was held in order to determine whether such an emergency existed which required imme diate measures for passing such an order. Mr. Nooruddin Sarki, learned counsel appearing for the State supported the reference and submitted that the order is liable to be quashed. He referred to Bahadur and another v. State (P L D 1964 Kar. 85) in support of the view taken by the learned Sessions Judge where it was held that the mere recording of the statement of the complainant in which be repeated his complaint without examining some independent witnesses of the locality was not an enquiry as contemplated by the provisions of section 117 (3), Cr. P. C. This case had in turn relied upon an earlier case of this Court reported as State v. Hyder (P L D 1963 Kar. 673) which had laid down that in order to determine whether an emergency exists for passing an order under section 117(3), Cr. P. C. an enquiry is to be held.

4. In a recent case of this Court The State v. Ghulam Ali and others (P L D 1975 Kar. 90), the late Chief Justice Tufail Ali Abdul Rehman, examined the import of the rule laid down in Hyder's case and came to the conclusion that no such dictum was laid down that a separate enquiry is necessary before an order under section 117 (3) can be passed. It was observed as under:- "I am entirely unable to see in this passage or in the provision of law itself which contemplates that a separately conducted enquiry and evidence recorded therein is necessary before an order under sec tion 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 that 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."

5. In the light of the above, I am of the view that it was not necessary for the learned Magistrate to hold independent enquiry and record evidence for such purpose before passing the order under section 117 (3), Cr. P. C. All that was necessary was that the learned Magistrate should have the necessary material on which his satisfaction is founded. The power vesting in a Magistrate under section 117 (3) for passing interim order of security is dependant upon his considering that immediate measures are necessary -for prevention of breach of peace, disturbance of public tranquillity, commission of any offence, or for the public safety. It is the requirement of law that the reasons must be recorded for passing such order. And order under this subsection is not a mere routine order under section 112, but is designed to meet a substantial emergency and accordingly, the Magistrate must apply his judicial mind to the consideration of the material placed before him on the basis whereof such order is sought. It is in this view of law that it was held in the aforementioned case that evidence produced in the main case can legally form the basis of such an order.

6. Applying these principles I find that the learned Magistrate did not ,choose to record any evidence in the proceedings and the reasons assigned 4or passing the order are as follows:- "Request has been made by the P. S. I. for passing 117 (3), Cr. P. C. orders against the respondent on the basis of the above evidence and enquiry. From the evidence on record and report of the P. S. I., pending comple tion of the enquiry, I consider that immediate measures appear necessary for the prevention of commission of any offence and for the public safety that the respondent Mubarak . . . . . . should execute a bond . . . . . . "

7. I have perused the record and proceedings of the case and I have in vain, looked for evidence to which the learned Magistrate has referred. -As stated earlier no evidence was recorded of any witness and the only material before the learned Magistrate was the police report which contains .allegations against respondent Mubarak and others. There is no ground B or material in the police report on which the satisfaction of emergency could possibly be based. The application made by the P. S. I. seeking the order sander section 117 (3) also does not specify any material justifying the interim order but contains only a prayer on a general allegation that the persons proceeded against were "desperate and dangerous and immediate action is necessary to prevent imminent danger to the public tranquillity." The learned Magistrate, while recording his reasons on the other hand, as repro duced above took the view that the immediate measures were necessary for prevention of commission of any offence and for public safety. Satisfaction of this nature, therefore, does not appear to be based on any material on record. This gives an unfortunate impression that the learned Magistrate has acted by way of routine in passing the impugned order.

8. For all the aforesaid reasons, I have come to the conclusion that the order under section 117 (3), Cr. P. C. passed in this case is illegal which is accordingly set aside. S.Q. Reference accepted.