Present:- Mr. Justice Irfan Saadat Khan
Date of hearing : 31.01.2011.
Applicants through : Mr. M.M. Tariq Advocate.
Respondents through : Mr. Muhammad Iqbal Awan, A.P.G.
JUDGMENT
IRFAN SAADAT KHAN, J: This Criminal Miscellaneous Application has been filed under Section 561-A Cr.P.c. for quashment of proceedings under Section 107/117 Cr.P.C. pending against the applicants before the Deputy District Officer (Revenue) & Special Judicial Magistrate (Saddar Town), Karachi.
2. Briefly stated the facts of the case are that the applicants and one Henry Pilley S/o. Michael Pilley were having strained relations on account of matters concerning YMCA. The applicant Sabir Iqbal filed an application dated 17.08.2010 to SHO P.S. Artillery Maidan, Karachi, for registration of FIR against Henry Pilley for misappropriation of certain amounts and for other charges. The SHO Artillery Maidan thereafter vide application dated 06.09.2010 referred the matter to the Deputy District Officer (Revenue) & Special Judicial Magistrate (Saddar Town), Karachi, for taking action under Section 107/117 Cr.P.C. The Deputy District Officer (Revenue) then issued Show Cause Notice dated 06.09.2010 Cr.P.C. directing the applicants and Henry Pilley to execute a solvent surety of Rs.10,000/- for a term of one calendar year, but when the said persons failed to appear before him for submitting their sureties he vide his summon dated 15.09.2010 required the said persons to appear before him in person on 27.09.2010, at 09:00 A.M. It is against the said summon dated 15.09.2010 that the applicants have filed this Criminal Miscellaneous Application.
3. Mr. M.M. Tariq Advocate appeared on behalf of the applicants and submitted that the said summon has been issued without adhering to the legal formalities of Section 107, 112 & 117 of Cr.P.C., hence the said summon is liable to be quashed. He further submitted that as the proceedings are illegal and arbitrary the said proceedings are not sustainable under the law. In support of his contentions the learned counsel has relied upon the cases of Mst. Hameeda Begum Vs. S.H.O., Police Station Rohri (PLD 2001 Karachi 235) and Obedaulla Vs. The State (1997 P.Cr.L.J. 559).
4. Learned A.P.G. on the other hand submitted that all the legal formalities have been fulfilled and as the applicants failed to appear before the Deputy District Officer (Revenue) & Special Judicial Magistrate (Saddar Town) on the respective date, he was justified in issuing the summon in this regard. He further submitted that instead of filing the present Criminal Miscellaneous Application the applicants should have been filed appeal against the said order. He, therefore, submitted that no illegality has been committed by the said Deputy District Officer and the present Criminal Miscellaneous Application being devoid of any merit is liable to be dismissed in limine.
5. I have heard the learned counsel and have also perused the record and the decisions relied upon.
6. It is seen from the record that the matter was referred to the Deputy District Officer (Revenue) on 06.09.2010 and on the same day he has passed the order under Section 112 Cr.P.C. It is not clear from the record that whether relevant material was placed by the S.H.O. before the said Deputy District Officer or not. It is a trite proposition of law that before issuing order under Section 112 Cr.P.C. the Deputy District Officer must have some material prima facie to form basis before passing the said order. In the instant case no such basis appears to have been present before the Deputy District Officer (Revenue) as admittedly he has passed the said order under Section 112 Cr.P.C. on the same date on which the matter was referred to him by the SHO P.S. Artillery Maidan. It is the requirement of law that there must be sufficient ground before proceedings under section 112 of Cr.P.C but in the instant case nothing has been mentioned by the Deputy District Officer (Revenue) in this regard. It appears that the Deputy District Officer (Revenue) has acted in a haste manner without applying his judicial mind to the contents of the report under Section 107/117 Cr.P.C. as the applicants were directed to execute bond in the sum of Rs.10,000/- each on the same day on which he received the application which action appears to have been taken without fulfilling legal requirements in this regard.
7. In view of the facts and the law I am of the considered view that action of the Deputy District Officer (Revenue) amounts to abuse of process of law. It is also seen from the order passed under Section 112 Cr.P.C. that no specific instances giving date, time and place has been shown from which it could be deduced that there was any apprehension of breach of peace which warranted the initiation of proceedings under Section 107/117 Cr.P.C. and the order passed by the Deputy District Officer (Revenue) under Section 112 Cr.P.C. appears to be vague.
8. The upshot of above discussion is that the proceedings initiated under Section 107/117 Cr.P.C. pending against the applicants before the Deputy District Officer (Revenue) & Special Judicial Magistrate (Saddar Town), Karachi, in the above case are found be illegal and are hereby quashed.
JUDGE
Karachi.
Dated:___________.
Tah/P.A.