This is an application for revision against the order of the District Magistrate, Hazara, dated 5-8- 1970, whereby he dismissed the appeal of Sher Zaman and upheld the order passed against him under section 118, Cr. P. Code, by a Mansehra Magistrate directing him to furnish a bail bond in the sum of rupees five thousand with two sureties in the like amount to be of good behaviour for a period of one year.
2. I find that the proceedings under section 110, Cr. P. Code were initiated against Sher Zaman at the instance of the police. The learned Magistrate after giving notice to Sher Zaman petitioner, as provided under section 112, Cr. P. Code, pro ceeded to record the statement of a solitary. witness, namely A. S. I. Muhammad Shah, who deposed that the petitioner was suspected in four different cases and was challaned in three cases. It is also in the statement of the police officer that the petitioner was a dangerous and desperate character. At the conclusion of the statement of the police officer, the trial Magistrate called upon Sher Zaman if he wish to produce the defence evidence. Sher Zaman replied in the negative and offered to give security. The E. A. C., Mansehra proceeded to pass the impugned order which was upheld in appeal by the District Magistrate, Hazara.
3. It is contended before me in revision that the evidence of the solitary witness produced against the petitioner irt this case was insufficient to sustain the order that was passed against Sher Zaman petitioner. The contention, in my opinion, is well founded and must prevail. It is not known from the statement of the Assistant Sub-Inspector of the Police as to what type of cases were against the petitioner to which the police officer referred in his statement. There is also nothing in the evidence of the A. S. I. to show that the petitioner was ever convicted in any criminal case. The petitioner has furnished certified copies of judgments and orders and his counsel contended before me that Sher Zaman was either discharged or acquitted in all those cases.
Learned counsel also referred to Abdul Karim and another v. The State (1), Mian Miraj'-ud-Din v. The Senior Superintendent of Police, Lahore District (2) and Haji fatal and others v. The State (3). No authority to the contrary was produced by Mr. Jalal-ud-Din Khan, who appeared on behalf of the State. I have gone through the reported cases and find that the material on which the impugned orders are based is wholly insufficient to bind down Sher Zaman. On the question whether consent of a person to furnish security is a good ground to order security in absence of legal / evidence, there is string of rulings that an order based on mere consent could not be sustained. It would be idle on my part to refer to those cases in detail, to which a reference is there in the judgment of the Late Mr. Justice M. R. Kayani in the case reported as Haji falal and others v. The State referred to above.
On careful consideration of the material on the record, I am of the view that the impugned orders were not properly made and although the period for which Sher Zaman had been bound down has run out, still the orders if allowed to stand will certainly affect him adversely and are, therefore, ordered to be set aside. The revision petition is accepted. .
(l)PLD 1963 Pesh. 233 (2) PLD 1970 Lah. 569
(3) PLD 1960 Lah. 819