1. The above named applicants have filed this application under section 561-A, Cr.P.C. stating therein to quash the order, dated 11-9-2001, passed by the learned Vlth Judicial Magistrate, Karachi South, in Criminal Case No,31 of 2001 (whereby he registered the case against the applicants), alongwith order, dated 4-12-2001, passed by the learned IIIrd Additional Sessions Judge, Karachi South, in Criminal Revision No,55 of 2001, whereby the revision application of the applicants was dismissed. The facts giving rise to the filing of present Criminal Miscellaneous Application are that complainant S.H.O. of KDA Police Station alongwith other Police Personnel "raided" the illegal construction, which was being carried out on Plot No, 167-M, R/1, situated at Denso Hall, Karachi, after reaching there in the police mobile vehicle, and noticed the said illegal construction being carried out; the KBCA staff demanded approved plan with relevant documents from the applicants regarding the said raising of the construction, but it is alleged that the applicants became infuriated, whereby apprehension of breach of peace became imminent at the hands of the applicants; therefore, the said police officials arrested the applicants, whereafter a report/challan under sections 107/117/151, Cr.P.C. was submitted, by the police before the Court of IVth Judicial Magistrate, South Karachi, on 11-9-2001, who passed an order under section 107, Cr.P.C. against three applicants only; after passing order under section 117(3), Cr.P.C. the Magistrate directed three of the applicants to furnish solvent surety in the sum of Rs,10,000 each with PR Bond in the like amount; a bond was also obtained from the three applicants of or maintaining good behaviour/conduct till conclusion of the inquiry, pertaining to the said report/challan.
2. I have heard Mr. Javed Haider Kazmi, learned counsel for the applicants and Mr. Fazalur Rehman Awan learned counsel for the State/respondent; also perused the R & P of this case and those of the Revision Application No,55 of 2001 of the Court of learned IIIrd Additional Sessions Judge, Karachi South, and of learned Judicial Magistrate and FCM No,VI, Karachi South.
3. Learned counsel for the applicants has argued that the learned Trial Court remanded the applicants to judicial custody under section 167, Cr.P.C. vide order, dated 11-9-2001, whereas the persons, who are proceeded against under the Preventive Chapter Proceedings are not to be considered as accused persons, and cannot be remanded to custody under section 167, Cr.P.C. that show-cause notice was served upon only three applicants and the proceedings under section 107, Cr.P.C. are in utter derogation of the established principles of law pertaining to Chapter VIII proceedings of the Cr.P.C. inasmuch as, order under section 112, Cr.P.C. was passed by the Magistrate on receipt of the challan/report, and that on the very same date, the Magistrate passed another order under section 107/117, Cr.P.C. and directed the applicants to furnish solvent surety in the sum of Rs,10,000 each, with PR Bond in the like amount, but without taking any evidence, which is a condition precedent for passing the order under the said provisions of law; that the bail bonds were taken under sections 63/86, Cr.P.C. illegally, whereas according to actual procedure surety. bonds, were to be taken from the applicants under section 121, Cr.P.C. that four persons were appearing before the learned Court of Magistrate, whereas show-cause notices under section 107, Cr.P.C. were issued against only three, out of the applicants, which proves that the. Magistrate had not applied his judicial mind and did not follow the instructions laid down in Chapter VIII of Cr.P.C. that the demand of the surety from the applicants was against the provisions of law, inasmuch as no such demand/order could have been passed until and unless a competent order under section 117(3), Cr.P.C. could be passed by the Magistrate.
4. It is further contended that some connected matter/case in between the applicants and KBCA was pending before this Court, wherein a notice was issued under the law of Contempt of Court KBCA officials and, therefore, the case in hand was falsely filed as counterblast to the said case, mala fidely.
5. Learned counsel for the State first opposed this Criminal Miscellaneous application, but then, on perusal of the record and proceedings of the learned Court of Magistrate, he stated that no statement on oath of ASIP Allha Yar was recorded by. the Magistrate before passing of order under section 117(3), Cr.P.C. and conceded to the present Criminal Miscellaneous Application to quash the proceedings in question.
6. A perusal of the impugned order, dated 4-12-2001 of the IIIrd Additional Sessions Judge, Karachi South, indicates that it was passed without referring to the settled principles of law pertaining to the proceedings under section 107, Cr.P.C. read with section 112 and 117(3), Cr.P.C. and that the learned Judge does not appear to be conversant with the said provisions of law; so also, he did not care to record a clear findings, as to whether or not, .the Trial Magistrate ever recorded statement on oath of ASIP Allah Yar before taking action against the applicants.
7. R & Ps of the learned Magistrate does not contain any statement on oath of the said ASIP Allah Yar; impugned order under section ,107/117, Cr. P C dated I.1-9-2001 passed by the Magistrate does not clearly mention as to whether any such statement on oath of the said police official was ever recorded in the said case.
8. It is now well-settled principle of law that bare possibility of breach of peace is not sufficient to justify the proceedings under section 117(3), Cr.P.C. and that at least a reasonable probability of such breach is must to be established by the prosecution before taking any such action against the applicants; and that proceedings under section 117(3), Cr.P.C. cannot be taken on the mere vague surmises of breach of peace. The proceedings under Chapter VIII are in a nature of preventive action and any person, against whom any such proceedings are initiated, cannot be treated to be an accused of any offence as the action under Chapter VIII of the Cr.P.C. is not for any offence, either according to Pakistan Penal Code or in reference to any other special law.
9. There being no evidence on record of the Trial Magistrate, no emergency existed to arrest the applicants/accused under section 151, Cr.P.C.
10. So also, order under section 117(3), Cr.P.C. for furnishing surety at-once with a threat to the applicants/accused to face judicial remand, in case of failure to furnish surety, without taking proper proceedings in the case, could not be passed by the Magistrate.
11. The learned counsel for the applicants has placed reliance on 2000 PCr.LJ 1534 (Karachi), 1982 PCr.LJ 750 (Karachi), 1997 M LD 3274, 1992 PCr.LJ 2187 (Karachi) 1989 M LD 2657 (Karachi), with some more citations.
12. In view of the above discussion, the learned State Counsel has rightly conceded to the quashment of the orders impugned herein, and accordingly the said proceedings/orders of the learned lower Courts are hereby quashed. This Criminal Miscellaneous application was so disposed of by a short order on 5-9-2002.
13. Above are the reasons for the said short order.