Criminal Revision Application No. 113 of 1970 filed by Rahimali and Sabbar and Criminal Revision Application No. 131 of 1970 filed by Dino son of Mohammad Brohi, under section 439, Cr. P. C. Are directed against a common order of Mr. A. B. Soomro, District Magistrate, Dadu dated 25-5-1970, whereby he dismissed the appeals of the applicants and sustained the order of S. D. M., Dadu dated 24-3-1970, who exercising powers under section 118, Cr. P. C. Ordered the applicants to furnish P. R. Bonds in the sum of Rs. 3,000 each with two sureties in the like amount to keep good behaviour for 12 months or in default to undergo R. I. For 12 months each.
2. The background of these proceedings shortly is that a complaint under section 110, Cr. P. C. Was addressed to the District Magistrate, Dadu on behalf of villagers of village Jumo Lakhiar, Jan Mohammad Lakhiar, Allahdito Kalhoro, and others against Khuda Bux, Haji son of Achar Chandio, Allah Dino. Sabbar, Rahimali and Allah Dino son of Noor Mohammad Chandio on 16-12-1969, stating that above six persons were dangerous, habitual offenders and criminals and are in habit to commit thefts, dispose of stolen properties and receive bhungs and give shelter to the criminals and decoits and other bad character. It was stated in the complaint that opponents 1, 2, 3 and 6 were previous convicts, 4 and 5 were convicted and history-sheeters of the police and for the above reasons they are creating harassment in the locality. A request was made that action under section 110, Cr. P. C. Was necessary against them as all the villagers have lost their sle6ps due to the activities of these people. Thereafter, the complaint contains some general allegations with regards to the activities of the accused as having committed offences and names of 8 persons were cited as witnesses who were prepared to give evidence against the six persons.
3. This application was forwarded by the District Magistrate on the same day (16-12-1969) to S. D. M., Dadu for disposal according to law, on receipt of the application, the S. D. M. Issued process against all the six persons and examined several witnesses against the applicants and thereafter on 24-3- 1370 passed an order under section 118, Cr. P. C. Binding each of the applicants/accused to produce surety in the sum of Rs. 3,000 for keeping good behaviour for a period of 12 months and on the same day passed another order under section 123, Cr. P. C. The opponents/accused filed an appeal before the learned District Magistrate; which was rejected by him vide his order dated 25-5-1970.
4. Out of six opponents/accused Rahmali, Sabbar filed Criminal Revision Application No. 113 of 1970 and Dino son of Mohammad Brobi filed Criminal Revision Application No. 131 of 1970 challenging the validity of the orders passed by the S. D. M. As well as the District Magistrate, Dadu, against them.
5. As the opponents/accused were tried jointly and both the Courts passed a single order against them, I am going to dispose of both the above revision applications by my this single judgment.
6. The main grievance of the applicants in these revision applications are that the joint trial of the applicants is illegal as it has prejudiced seriously cases of individual opponents/accused who were deprived of the chance of adducing evidence in their defence and that the lower Court has mis- applied the rules of evidence and acted mostly on hearsay evidence which is not admissible. It was further urged that the witnesses produced against the opponents are decidedly interested persons particularly all of them are men of witness Wahid Bux against whom applicant Rahmali had filed a case under section 307, P. P. C. And the police has not examined a single witness to show that the applicants are either history-sheeters, ex-convicts, habitual thieves as alleged and these facts could only be within the knowledge of the police, the reliance of the Courts below on mere and vague statements of general nature by certain witness, amount to abuse of the process of the Court. It was next urged that the learned District Magistrate had failed to consider the case of each individual as such serious prejudice has beer caused to the applicants. I find sufficient force in the points raised by the counsel for the applicants that there was no sufficient evidence in the eyes of law enabling the Courts below to pass the impugned orders and also the joint trial of all of them without proving any specific allegation against each of them by the witnesses produced, is illegal.
It was brought to my notice by counsel for the State during the hearing of the case, that the applicants were bound down for one year and that period has expired, therefore, these applications have become infructuous. I am afraid I cannot agree to this submission because if the illegal orders are allowed to remain undisturbed that will attach a stigma against the applicants particularly so when they have already approached this Court and no illegality shall be allowed to perpetuate against citizen to his prejudice.
7. A glance on the evidence produced by the prosecuting Mar agency goes to show that the statements of these witnesses are vague and of a very general nature, for instance P. W. Mohd Siddik admits in his statement that only Allahdino, Khuda Buh and Haji are residents of his village and rest of them belong to different villages. He only makes allegations against Rahimali who is alleged to have stolen his ornaments. With regard to rest he states that they are badmash and habitual thieves and get bhung money from public. Now obviously by this general statement the applicants could not be bound down because under the law specific allegations with proof have to be brought before the Court. P. W. Allah Dino's statement is alto in the same tone as he alleges that all of them are habitual thieves and history--sheeters, but at the same time he absolves Haji from being a previous convict. The rest of his statement is hearsay that some different persons had told him at different times that the respondents used to get blung money. He complains against Rahmali and Sabbar to have stolen his goods. With regard to P. W. Sujawal he gave a different statement than the others by saying that all excepting Khuda Bux are habitual thieves, receivers and disposers of stolen property on bhung, thus no specific allegation is made against individual opponent. It may be noted here that none of them have reported to the police with regard to the alleged thieves of their properties, and one wonders to know, why this was not done in case the respondents had stolen their property and there was sufficient evidence? At least they could file the reports before the Police or before the Magistrate of the area and had that been done and brought on record there could still be room for arguments against the behaviour of the respondents/applicant. Top of it all of the P. Ws. Alleged that the respondents are history-sheeters ex-convicts but surprisingly enough the police has not supported these allegations. It seems that this general statement of the P. Ws. Was used simply to get them bound down and they were not history-sheeters. Besides this, the police has not come forward to make any statement against the respondents. As it was the prime duty of the police to keep pace to the area it cannot be said that the activities of respondents/applicants could be secret from the police.
8. In view of the above I place no reliance on the statements of these witnesses as sufficient in law enabling the Magistrate to pass the impugned orders. Counsel for the applicants relied on Angnoo Singh and others v. King-Emperor (AIR 1923 All. 35) wherein Mr. Justice Walsh disapproved of joint trial under section 110, Cr. P. C. Of various respondents. He observed that- "It seems very bard, almost oppressive, to any set of defend--ants to charge them together, unless the whole of the evidence against all of them is precisely the same and they are to be deal with on the same facts and compel them to fight each on his own individual battle during a prolonged enquiry, a great deal of which concerns for the moment only one out of the general body."
It was further held by the learned, Judge that- "Evidence of general repute by persons who have no personal --knowledge of the accused and know nothing of his business and circumstances, is not sufficient to justify an order an lastly vague repetition unaccompanied by direct evidence personally affecting each accused' person or accompanied by direct evidence which breaks down is net sufficient in itself to justify a order under section 110, Cr. P. C.
The principle in this case fully applies to the case before me, as I hive stared earlier the evidence adduced is of a general nature, no specific allegation on has been proved according to law and therefore, the joint trial is not legal.
9: The next case relied upon by the counsel for the applicants is In re: Kutti Goundan and another (AIR 1925 Mad- 189) wherein it was held: "Joint trial must be condemned as prejudicial to; the accused, where proceedings are taken against the accused, not only for conduct coming within section 110, clauses (d) and (e), but also under clause (f) for the reason that they are so desperate and dangerous as to make their being at large without security hazardous to the community, and whets this accused are tried jointly and evidence pertaining exclusively to the nefarious acts of each of the accused is led in addition to the evidence as to the events in which it is alleged that they are associated together and the Magistrate passes an order against them on a consideration of the entire evidence thus introduced into the record against all the accused."
10. The other case in point is In re : K. S. Bathinam Pillai and another (AIR 1935 Mad. 35) wherein the joint trial under section 110, Cr. P. C. Was also disapproved. Mr. Justice Newsam observed: - "Section 110 is obviously not intended for use against merely undisciplined people such as local bosses and faction leaders to clip their wings, to deplete their resources by an expensive inquiry, to humble their pride by treating them as criminal men and to advertise publicly their high-handed behaviour. To apply the section to such as these is undoubtedly to abuse it. The section is intended to protect the public against irresponsible criminal maniacs and desperadoes and the weapon of public opinion is the only one adapted to the suppression of undisciplined local dictators"
11. For the reasons given above I accept these revision applications and set; aside the impugned orders of the S. D. M., Dadu dated 24-3-1970 and District Magistrate, Dadu dated 25-5-1910. The bail bond if any given by the applicants stands discharged.