1977 P Cr (PLP)

In the proceedings filed under section 110/55 of the Cr. P. C. against the applicant on 25‑7‑r4 before the S. D. M., Badin, the latter passed order under section 112 of the Cr. P. C. on the same date requiring the applicant to furnish two sureties solvent in the sum of Rs. 5,000 each who should be respectable persons and also able to control his movements. It appears, ors the same day an application was moved by the S. H. O. before the Magistrate requesting for taking action under section 117(3), Cr. P. C. and for that purpose stated that statements of witnesses Abdul Karim and others who were present may be recorded. The Magistrate thereupon examined on said S. H. O. Allah Bas Baloach and witnesses Mali Abdul Karim, Misri and Ramzan. The certified copies ref their statements have been produced which show that there was no cross‑examination of these witnesses by the applicant. The Magistrate thereafter passed orders under section 117(3), Cr. P. C. wherein he said :‑ "I have however examined S. H. O. Allah Baksh Baloach of Badin Police Station and witnesses Haji Abdul Karim, Misri and Ramzan. The S. H. O. has given statement to the effect that the opponent was very dangerous type of person and was threatening the witnesses not to give evidence against him. The S. H. O. Pas also clearly mentioned the crime numbers in which the opponent was involved and that the cases were pending against him in Courts. The three witnesses Haji Abdul Karim, Misri and Ramzan have also given their statements to the effect that the opponent was habitual of committing cattle lifting offences and that he had accepted Bhung from Misri and Rarmzan for the return of their stolen cattle and except one cow neither returned any stolen cattle nor returned the Bhung money and that the opponent was threatening them not to give evidence against him else he would not leave even single head of cattle on their house. This is a proper stage of emergency and after taking in view the above statements I order the opponent to be bound down under the same terms and conditions of the order under section 112, Cr. P. C. to maintain good behaviour for a period till the cancellation of the inquiry." As the applicant was not able to give the required sureties he was ordered to be remanded to custody till the conclusion of the enquiry or till he furnished the sureties. It may be mentioned that the applicant was already in custody as he had been arrested under section 55 of tree Cr. P. C. before filing of the complaint. Although the impugned order was passed on 25‑7‑1974, the learned counsel for the applicant stated that there had been no further progress in the case after that date. The above order under section 117(3), Cr. P. C. was however suspended by this Court on 21‑9‑1974 after admitting the present application by which the quashment of the said order was sought, The learned counsel for the applicant has now raised the contention that the applicant was not given an adequate opportunity to defend himself before the impugned order was passed. Although the record shows that the applicant did not cross. Examine the witnesses examined by the Magistrate, the submission of the learned counsel was that he being in custody, diet no have the opportunity of getting legal assistance. He could possibly have the same, if he was not so in custody. An unreported case of this Court Cr. Reference No. 144/73 in which proceedings under section 110, Cr. P. C. toad been started and concluded on one at d the same dad, a‑as relied upon. The observations that support the applicant are: ‑ "More than once it has been held that the respondent must be given proper opportunity to cross‑examine witnesses and, in the absence of sufficient explanation, I cannot but think that proceedings commenced and concluded in one clay could hardly have given such an opportunity. The respondent admittedly was unrepresented and in fact he now claims that he did not understand the proceedings at all and that he never submitted to an order against himself." Although this was a case in which the final order has been passed under section 118 on the same day when the proceedings were initiated and it was shown that the accused pleaded guilty, still in so far as the proposition that, a person produced in custody cannot possibly be said to have any adequate opportunity of engaging a counsel or to make any arrangement for properly defending himself, the case can be relied upon as an authority. In such circumstances the presumption will also be in favour of the person proceeded against and if the law requires that a proper opportunity of defence should be given, I do not see why the applicant in this case should have been denied such, before adverse orders were passed against him. The orders passed without giving him a proper opportunity are therefore liable to be set aside. The learned Assistant Advocate. General, in view of the above-decided case, has fairly conceded that the orders under section 117(3), Cr. P. C. are not sustainable. In view of the above, the orders passed by the Magistrate under section 117(3), Cr. P. C. which already stand suspended are quashed and the matter pending against the applicant will be proceeded with before the S. D. M., Badin where it is pending. Tire applicant who is at present on bail shall continue to remain on bail, this shall not, however, prevent the Magistrate from passing valid orders after holding a proper enquiry. Order accordingly.