1975 P Cr (PLP)

The State v. Hyder P L D 1963 Kar. 673 and Bahadur and another v. State P L D 1961 Kar. 85 rel. Aftab Ahmed Alvi for Appellant. Nemo for Respondents. Date of hearing : 28th July 1975. This is a reference by the Sessions Judge, Khairpur, recommending quashment of the order dated 7‑5‑1974 passed by the Mukhtirkar & F. C. M. Gambat, by which he ordered the detention into custody of the 4 respond ents until they executed a bond in the sum of Rs. 5000 each with one surety in the like amount in proceedings under section 107, Cr. P. C.

2. Briefly, the facts are that on 4.5‑74, the S. H. O. Sobhodero filed a report under section 107, Cr. P. C. before the Mukhtiarkar & F. C. M. Gambat in which the stated that he received information from Ranjho Kharal that the respondents came on the land of Naseem Kharal armed with rifles and guns, that they had fired in the air and had frightened the haris away from the land and had taken possession of the land and reaped the crop. Accordingly, he went on the land and he arrested them and then lodged the report in question. His deposition was recorded and on his application, an order was also passed simultaneously under section 117(3), Cr. P. C. ordering each of the respondents to execute a bond in the sum of A Re. 5,000 with one surety in the like amount for keeping peace pending completion of the enquiry under section 117(1), Cr. P. C. and until the enquiry is concluded failing which the respondents were to be detained. The respondents sureties were not accepted, and so they remained in custody.

3. The respondents then filed a revision before the Sessions Judge, Khairpur, challenging the impugned order and applied for bail which was granted. The learned Sessions Judge has by his order dated 10‑8‑1974 made a reference to this Court recommending quashment of the impugned order of the Magistrate. He has rightly observed that the enquiry which is mandatory under subsection (3) of section 117, Cr. P. C. was sot held by the Magistrate before passing the impugned order requiring the respondents to finish surety. In this connection, he referred to two decisions of this Court, namely, P L D 1963 Kar. 673 and P L D 1964 Kar.

85. It is clear that the Magistrate failed to discuss the case against each of the accused. He has merely reproduced the allegations of the complainant in his report. The Magistrate also failed to examine independent witnesses and then come to a conclusion whether the situation was emergent one and required detention of the respondents in order to prevent likelihood of a breach of peace. Mr. Aftab also concedes that this is the true position.

4. I am, therefore, in agreement with the learned Sessions Judge's observations. I would, therefore, accept the reference and quash the impugned order passed under section 117(3), Cr. P. C. Order accordingly. Proceedings quashed.