1979 P (PLP)

This is an application under section 561-A, Cr. P. C. for quashment of the proceedings under section 107/117(3) of the Cr. P. C. now pending in the Court of S.D.M., Nazimabad, Karachi on the ground that they are an abuse of the process of the Court.

2. The brief facts of the case are that on 9th March, 1978, at about 11.30 p.m. S.H.O. P.S. Orangi Town Karachi while on patrol duty received an information that the applicant was inciting people in Aligarh Bazar in connection with the case of Mr. Z. A. Bhutto now pending in the Supreme Court of Pakistan, which is being reported in the local Press. The S.H.O. found that on account of the actions of the applicant the people of the area appeared disturbed and there was likelihood of distur bances resulting in breach of peace.

3. The S.H.O. Mr. Jamil Kiyani was also examined on oath in the Court of the learned Magistrate. He was the only witness produced for obtaining the order under section 117 (3) of the Cr. P. C. from the Court where his statement was recorded in the following words : "When I got information that the opponent had gathered some Mohallah people and was talking to them about the politics inciting them to create breach of peace I in view of the current political and administrative situation and since the opponent is also the bad character of the Thana in order to stop him from creating further situation in the law and order arrested him under section 151, Cr. P. C. and I am also convinced that if he is not bound down he will certainly create a breach of peace in the `Ilaqa' and disturbance, I therefore, report that he be bound under section 117(3), Cr. P. C. for maintaining peace in the area."

4. On the basis of the statement of the S.H.O. alone, the learned Magistrate passed the following order "There are proceedings under section 107/1171151, Cr. P. C. I have perused the report of the S. H. O. and have also examined him in Court. He has also been cross-examined. From the report and the evidence I am satisfied that grave apprehension to breach of peace exists if this opponent is not bound down since he claims to be the owner of 14 houses and from his attitude in Court, capable of inciting the people and creating a law and order situation. Being satisfied, I therefore order that the opponent be bond down for a period of one year under section 117 (3), Cr, P. C. pending finalization of the enquiry for a sum of Rs. 10,000 in two equal sureties who should be responsible people who could wield effective influence over him and thereby control his activities and P. R. bond in the like amount."

5. From the evidence of the S. H. O. it appears that the applicant is already registered as a bad character of the Thana. No independent evidence was produced for obtaining an order under section 117(3) from the Court of the learned Magistrate (S.D.M.), Nazimabad which was passed solely on the testimony of the S.H.O. It could not be said that this was a full inquiry conducted to enable the Magistrate for taking and action under this section. There is no material on the record that the learned Magistrate was satisfied that there was reason to believe that the applicant was likely to commit a breach of the peace or disturb the public tranquillity or to do any wrongful act that may probably occasion the breach of the peace or disturb the public tranquillity and for such breach of peace or disturbances cannot be prevented otherwise than by detaining the applicant under custody. The reasons recorded by the learned Magistrate, while passing an order under section 117 (3), Cr. P. C. are such which cannot be considered as reasons contemplated by sub clause (3) of section 117, Cr. P. C.

6. Even the perusal of the report of the S.H.O. does not cover the case of the applicant inasmuch as the applicant had taken no steps to indicate that he was likely to commit the breach of the peace or disturb the public tranquillity or to do any wrongful act that may probably occasion the breach of the peace or disturb the public tranquillity.

7. I therefore, find that the reasons for instituting the proceedings against him are not based on sufficient grounds under section 107/117 (3) for the simple reason that the allegations are so general and vague that the applicant under the law would find it difficult to contest. The applicant, as per the statement made at the bar, was implicated under the D.P.R. as well as, M.L.O. 12 which are independent of the proceedings in the instant case. I would, under the circumstances, allow the application and quash the proceedings being an abuse of the process of the Court.