2003 PLP 3139 (YLR)

"It is therefore, prayed that this Honourable Court may be pleased to quash proceedings under section 107/ 117, Cr.P.C. pending before the learned Vth Judicial Magistrate, Karachi‑West. " The brief facts of the case as disclosed in the report submitted by S.H.O., Mangho Pir before Judicial Magistrate V, Karachi West are that one Nasir Ali appeared before S.H.O. and stated that applicant No.1 Haji Manzoor Ahmed is his real father Applicant No.1 Haji Manzoor Ahmed married Mst. Farida Begum. Out of wedlock Nasir Ali, his four brothers and two sisters were born. His father married another lady Mst. Khadija Begum and from her four children were born. The applicant No.1 Haji Manzoor Ahmed was not maintaining them. He was an estate agent. The applicant No.2, Mst. Shamim Akhtar alongwith her sister went to applicant No. 1 Haji Manzoor Ahmed and purchased two plots. The applicant No.1 Haji Manzoor Ahmed father of Nasir Ali fell in love with applicant No.2 Shamim Akhtar. He got married Mst. Sakina Tabassum daughter of applicant No.2, Shamim Akhtar with Nasir Ali. Out of wedlock he has two daughters. He used to live with them. Subsequently his father married with his mother‑in‑law Mst. Shamim Akhtar. His mother Fareeda. Begum started living with her father Soona in Makrani Para. Her grand father gave her one plot. In two rooms built thereon she started living with her two sons and they were earning livelihood from labour. Always there was dispute in the house with the result he i.e, Nasir Ali was extended alongwith his two girls from the house by his wife Sakina Tabassum and his mother‑in‑law. He used to visit his mother Mst. Fareeda Begum. He i.e. Nasir Ali converted a non Muslim girl and married with her. On this his father, applicant No.1 Haji Manzoor Ahmed divorced his mother and pressed him to vacate the house and made application against him to police. The land belongs to his grandfather therefore, he will not vacate the house. Many times, different persons attacked at his house. He was involved in a false case of theft and detained at Police Station, Shahra‑e‑Faisal. His mother‑in‑law Shamim Akhtar against monetary consideration got him beaten by the police in her presence. They demanded their articles: Subsequently, she got him released and took him with herself. After four days she told him that since you have divorced your, second wife therefore, you should not visit your mother, He replied that he has not divorced his wife whereupon she extended him from the house and now he is living with his mother. On 8‑9‑2002 his step‑mother brought 4/5 persons who were armed with clubs. They attacked at his house. Now his father is demanding his house. The land belongs to his grandfather which was given by him to his mother in which his brothers and sisters are living therefore, he will not part with it. They do not possess any property documents. On 26‑9‑2002 police produced the applicants alongwith report under sections 107 and 117, Cr.P.C. before the Court. By impugned order trial Magistrate issued notice to applicants for passing order under section 112, Cr.P.C. and remanded them to jail. I have heard learned counsel for applicants and Qazi Wali Muhammad learned counsel on behalf of A.‑G. for State. The latter conceded to the quashment of proceedings. The perusal of material placed on record shows that there was a family dispute between son, his step‑mother and real father. The proceedings under Chapter VIII, Cr.P.C. are not penal but punitive. The Magistrate is not supposed to act mechanically upon the report of police while taking cognizance of the matter under Chapter VIII, Cr.P.C. The Magistrate should be doubly conscious and he is required to apply his judicial mind before taking any action. The report/information for taking action must be clear and unambiguous it should disclose tangible information for action under section 107, Cr.P.C. It is contemplated under section 107(1), Cr.P.C. that there must be sufficient grounds for proceeding against a party. Section 151 Cr.P.C. lays down that if there is imminent apprehension of the commission of any cognizable offence at the hands of a person the police in order to prevent the same can arrest him. But if a person is "likely" to commit breach of peace or disturb the public tranquility could not be said to be guilty of any cognizable offence and he cannot be arrested under section 151, Cr.P.C. In the in hand the applicants were not arrested under section 151, Cr.P.C. by police. They were produced before the Magistrate with a report under sections 107 and 117, Cr.P.C. No move was made by the prosecution under section 117(3), Cr.P.C. before the Court. The unfortunate aspect of the case is that proceedings were initiated upon the statement of son against his real father and step‑mother which resulted in their remand to jail by the Magistrate. It is ordained by Almighty Allah in Holy Quran: The Lord hath decreed that ye worships none but Him and that ye be kind to parents. Whether one or both of them attain old age in their life, say not to them a word of contempt, nor repel them, but address them in terms of honour. And out of kindness lower to them the wing of humility, and say: My Lord! Bestow on them They Mercy even as they cherished me in childhood." [Sura Bani Israil XVII, 23 and 24] The dicta laid down in Holy Qur'an reproduced hereinabove shows that children must be obedient and respectful to their parents, and more particularly, when they attain advance age, and if they become harsh it is the bounden duty of the children to tolerate them. The children are not supposed to retaliate and become intolerant. If a child ignores or deviates from the above dicta of Holy Qur' an, the Courts should not 'be oblivious of it. In the case in hand no order under section 112, Cr.P.C. was passed by the Magistrate. The condition precedent for taking cognizance is that if a person proceeded against is present in Court the order under section 112, Cr.P.C. is to be passed and read over to him and if he desires, substance of the order shall be explained to him and if person proceeded is not present before the Court, a copy of the order under section 112, Cr.P.C. shall be sent to him with summons or warrants issued under section 114, Cr.P.C. through the officer executing the same. The remand of applicants to jail without any order under section 112, Cr.P.C. or 117 (3), Cr.P.C. is illegal. The liberty of a person is cherished one and it cannot be curtailed in a mechanical way. The Court is under bounden duty to follow the procedure as laid down under the statute and any departure from it always results in miscarriage of justice. Resultantly the proceedings under sections 107 and. 117, Cr.P.C. pending before the trial Court against) the applicants are quashed. The above are detailed reasons for short order dated 17‑10‑2002. H.B.T./M‑534/K Proceedings quashed.