1968 P Cr (PLP)

S. 107‑Security for keeping peace‑Licensed gun of person proceeded against cannot be confiscated under S. 107. (b) Criminal Procedure Code (V of 1898)

S. 107‑Security for keeping peace‑Magistrate's power to take security under S. 107‑Limited to one year‑Further insistence on such security, held, totally illegal‑Proceeding quashed. The State v. Shafi Muhammad P L D 1.961 Kar. 118 rel. Syed Afzal Haider for Petitioner. Niaz Ahmad Siddiqui for A.G. for the State. This is an application by Mr. Nur Nabi for transfer of a case pending against him in the Court of Mr. Zafar Yasin, City Magis trate Bahawalnagar, and in the alternative, for quashing the said proceedings. 2. The material facts are that on the 20th of December 1965 one Muhammad Amin, son of Sultan filed a complaint against the petitioner under section 107, Cr. P. C. in the Court of Mr. Zafar Yasin, City Magistrate, Bahawalnagar. The allegation of Muhammad Amin appears to have been that the petitioner had threatened to shoot him (Muhammad Amin) with a gun belonging to the petitioner. The petitioner happened to be in the said Court on the 2nd of January 1966, when he was directed to appear again on the 6th of January 1966 in connection with the said complaint filed by Muhammad Amin, and to produce his licensed gun for confiscation. The petitioner duly appeared in the said Court, and by his order dated the 6th of June 1966, the learned Magistrate ordered that the gun be deposited with the Police malkhana. Again on the 22nd of February 1966, the learned Magistrate issued a notice to the petitioner under section 107 of 'the Criminal Procedure Code to show cause why he should not be ordered to furnish security in the sum of Rs. 2,000‑ for one year to keep the peace, because he had threatened to murder Muhammad Amin with his gun. This order was served on the petitioner on the same day, his examination was made by the learned Magis trate on the same day, the petitioner was jailed until the 26th of February 1966 when he was released on furnishing bail. Aggrieved by these orders, the petitioner filed this application for transfer. The petitioner submits that the learned Magistrate has shown bias in favour of the complainant by the illegal order of 6th January 1966 and by the fact that although his gun has been taken away, he was kept in jail till he furnished security. As far as the order of the learned Magistrate dated the 6th of January 1966 is concerned, there is no provision under section 107, Cr. P. C. whereby the learned Magistrate could order the peti tioner to deposit his gun with the police. I have read the report of the learned Magistrate, which is evasive and does not submit any proper explanation as to how the order was passed under section 107, Cr. P. C. There is provision in law for taking action for the confiscation of licensed guns, of which the learned Magistrate should have been aware, but there is no provision for such action under section 107 of the Cr. P. C. Mr. Niaz Ahmad Siddiqi who appeared on behalf of the State, admitted that the order of the 6th of January 1966 was contrary to law. However, he sub mitted that even an illegal order is not evidence of bias and there fore does not furnish grounds for transfer of the case, the more so as the petitioner in his statement before the Magistrate on the 22nd of February 1966 admitted all the allegations made by the complainant against him. I have examined these allega tions; as the statement of the petitioner is thumb‑marked, it is apparent that he is illiterate and, therefore, the statement has to be considered with great caution. 3. By his order dated the 22nd February 1966, the learned Magistrate had directed the petitioner to furnish a bond for the maintenance of peace for one year, but I am told that the bonds have still not been cancelled. I cannot understand this position. The power of the learned Magistrate to take security was limited to one year, and further insistence on that security is totally illegal. I am fortified in my opinion by a judgment of this Court reported in The State v. Shafi Muhammad (P L D 1961 Kar. 118) wherein this Court has held that proceedings under section 107, Cr. P. C. can only be taken for one year. Therefore, I hold that the proceedings under section 107, Cr. P. C. before the learned Magistrate, in respect of which this transfer application is filed, are no longer valid and I quash them. In consequence, the order of the 22nd of February 1966, made by the learned Magistrate, for security has also come to an end, and I declare that the bonds are without lawful authority. In these circumstances, it is not necessary to go into the merits of the transfer application. I have already held that the order of the 6th of January 1966 directing the petitioner to deposit his gun with the police malkhana is illegal and, therefore, the said gun should be returned to the petitioner,