1. Opponent Mahmood son of Yar Muhammad Panhwar was arrested on 14-9-1972 by S. H. O.
2. Tharushah Police Station and on the next day he was produced before the learned S. D. M., Naushero Feroze, alongwith a complaint under section 110, Cr. P. C. In which it was alleged that the respondent was a habitual thief, shelters thieves, receives stolen pro--perties and disposes of the same on accepting bhurig. The learned S. D. M., without passing any order under section 112, Cr. P.
3. C., remanded the respondent to custody, as the latter was not able to furnish a surety. On that very day, .One Muhammad Achar submitted an affidavit to the learned S. D. M. Stating that he was willing to stand surety for the respondent. In that affidavit, Muhammad Achar gave details of his property, which accord--ing to him was worth Rs. 1,50,000. On this affidavit the learned S. D. M.
4. Passed the following order on 20-9-1972: --- "The offence under section 110, Cr. P. C. Is bailable. But the apple--cant Muhammad Achar should produce solvency certificate from the Taluka Mukhtiar kar for his solvency when he will be considered to be accepted surety for the respondent."
5. It appears that the surety did not produce the solvency certificate, but instead the respondent filed a Revision Petition in the Sessions Court challenging the orders passed by the learned S. D. M., including the order for the respondent's detention in custody. The Revision Petition appears to have been filed on 20-9-1972. After it was filed, the learned S. D. M., on 27-9-1972, passed an order under section 112, Cr. P. C. Requiring the surety to show cause why he should not be required to execute a bond for good behavior for a period of 12 months. The Revision Petition was heard by the learned Additional Sessions Judge, Nawabshah, who, by his order dated 5-10-1972, has reported this case for the orders of the High Court, as in his view the learned S. D. M. Acted illegally in requiring the surety, Muhammad Achar, to produce a solvency certificate from the Taluka Mukhtiar kar.
6. Mr. Allah Bux, who appears for the respondent, has supported the reference and has placed reliance on a decision of a learned Single Judge or this Court reported as Muhammad Salim v. The State (PLD 1970 Kar. 187). In that case, ten persons, who were facing trial in respect of offences under sections 147, 332, 336 and 188, P. P. C. Before the S. D. M., Harbour, Karachi, were granted bail by the Magistrate in the sum of Rs. 10,000. One Shaikh Muhammad Din offered to stand surety for one of the accused persons and submitted his affidavit. The learned S. D. M. Directed verification of the solvency of the surety by the City Deputy Collector on the basis of certain circulars and directions issued by the City and A. D. M. That all affidavits of sureties in excess of the amount of Rs.
7. 3,000 be referred to the City Deputy Collector for verification of the solvency. It was held, mainly on con--sideration of the instructions in the Federal Capital and Sind Court Criminal Circulars on the subject, that the circulars of the City and A. D. M., Karachi, requiring verification of sureties by the City Deputy Collector were wholly without jurisdiction, tended to interfere with the judicial functions of a Magistrate and any order passed on their basis was illegal and of no effect, and that the Magistrate were required to comply with paras. 16 to 20 of the aforesaid circulars while accepting or rejecting any surety.
8. The aforesaid decision is in respect of acceptance of a surety for a person charged with substantive offences and further the main question involved in that case was whether the discretion conferred on a Magistrate under section 499, Cr. P. C. To accept or reject a surety could be curtailed or interfered with by means of executive circulars. It is not the case of the respondent that any similar circulars had been issued in the instant case. Moreover, the respondent was not being tried for any substantive offence but had been sent up under the Preventive Chapter of the Criminal Procedure Code. Section 122 of the Cr. P. C., which is applicable to proceedings under sections 107 to 110, empowers a Magistrate who has initiated any such proceedings to either himself inquire into the solvency of the surety or to require a Subordinate Magistrate to do so. In the instant case, the learned S. D. M.'s order could reasonably be construed as reference of the question of solvency of surety to the Taluka Mukhtiar kar for inquiry and report. I is true that the Taluka Mukhtiar kar as such is not a Magistrate, but it is common knowledge, and judicial notice can be taken of this fact, that all Taluka Mukhtiarkars in Sind are also Magistrates by virtue of their office. It could thus be said that the learned S. D. M. Was referring the question of solvency of surety to a Subordinate Magistrate for inquiry and report in terms of section 122, Cr. P. C.
9. It was next contended that inasmuch as the order under section 112, Cr. P. C. Which was passed by the learned S. D. M. On 20-9-1972, required the respondent to furnish surety for a period of one year and the said period had since expired, no further action on the basis of that order or the informa-- petition lodged before the Magistrate could now be taken. In support of this contention, reliance was placed on the decision reported as State v. Shaft' Muhammad (PLD 1961 Kar. 118) and Noor Nab! v. State (1968 P Cr. L J 131). In Shaft Muhammad's cave it was found that the persons ordered to furnish sureties under section 110. Cr. P. C. Had served out in jail the period for which they were required to furnish surety. In view of this fact further proceedings against them were ordered to be quashed. In Noor Nabi's case, security was required for keeping peace under section 107, Cr. P. C.
10. Since the said section limits the period for which security could be required to one year, and as it was found that this period had elapsed, further proceedings under section 107, Cr. P. C. Were held to be invalid and were accordingly quashed.
11. There is another circumstance in the case, which needs attention. I have already adverted to the fact that though the respondent was produced before the learned S. D. M. On 15-9-1972, the order under section 122, Cr. P. C. Was passed by him on 27-9-1972. It is now well established that an order under section 122, Cr. P. C. Is the foundation for proceedings under sections 107 to 110, Cr. P. C., and if any proceedings are taken under the said sections against any person, without passing such an order, those proceedings are void and are of no legal effect. (See PLD 1953 Bal. 24, PLD 1953 B J 83 and PLD 1970 B J 1). It is true that in the instant case no inquiry has been held by the learned Magistrate before the order under section 112, Cr. P. C. Was passed and communicated to the respondent. It does, however, appear from the diary maintained by the learned S. D. M. That he had pleased an order on 15-9-1972 remanding the respondent to custody for want of surety.
12. Undoubtedly, the learned Magistrate did have the power to pass such an order in view of the provisions contained in section 91, Cr. P. C., but the question which requires considera--petition is whether any such order could be passed by him before passing the order under section 112, Cr. P. C.
13. Section 91, Cr. P. C. Is in the following terms: --- ---91. When any person for whose appearance or arrest the officer presiding in any Court is empowered to issue a summons or warrant, is present in such Court, such officer may require such person to execute a bond, with or without sureties, for his appearance in such Court."
14. It will be seen that Court is empowered under this section to require only such persons to execute a bond for his appearance, for whose appearance or arrest the Court is empowered to issue summons or warrant. The power to issue summons to or warrant against a person proceeded against under any of the sections from 107 to 110, Cr. P. C. Is conferred by section 114, Cr. P. C. On Magistrates empowered to take such proceedings. Since the latter section is to be found in conjunction with section 113, Cr.. P. C., it would be appropriate to set-forth both of them. They read as follows: --- "113. If the person in respect of whom such order is made is present in Court, it shall be read over to him or, if he so desires, the substance thereof shall be explained to him.
15. 114: If such person is not present in Court, the Magistrate shall issue a summons requiring him to appear, or, when such person is in custody, a warrant directing the officer in whose custody he is, to bring him before the Court: Provided that whenever it appears to such Magistrate, upon the report of a Police Officer or upon other information (the substance of which. Report or information shall be recorded by the Magistrate), that there is reason to fear the commission of a breach of the peace, and that such breach -of the Peeve cannot-be prevented otherwise than by the immediate arrest of such person, the Magistrate may at any time issue a warrant for his arrest."
16. Both section 113, Cr. P. C. As well as section 114 of the Code are clearly limited in the application to the cases of persons in respect of whom an order under section 112 has been passed. In section 113 this has been made explicit by the opening words "if the person in respect of whom such order (under section 112) is made", while the same object has been achieved in section 114 by the words "such person", which can only have reference to the opening words of section 113, Cr. P. C. While section 113 is applicable to any such person who is present in Court, section 114 applies to any such person who is not present in Court. The position that emerges, and this has been made crystal clear by the provisions of section 115 requiring every summons or warrant issued under section 114 to be accompanied by a copy of an order under section 112, that the pre-condition for the issue of a warrant or summons under section 114 against a person who is not present in Court is that an order under section 112, Cr. P. C. Should have been made against him. A similar view was held by the Sind Judicial Commissioner's Court in the case reported as Jatoi v. Emperor (AIR 1926 Sind 288). In the instant case no order tinder section 112, Cr. P. C. Was admittedly made by the learned S. D. M. Till 27- 9-1972. He thus could not have issued a summons or warrant for the appearance of the respondent on 15-9-1973, when he remanded him to custody. I understand section 91, Cr. P. C. To mean that the power of a Presiding Officer of a Court under that section to require a person present in Court to execute a bond for his appearance in Court is available only if at the time that such person is required to execute the bond, the Presiding Officer was competent to issue a summons or warrant for his appearance or production. Since the learned S. D. M. Had not made an order under section 112, Cr. P. C. When he remanded the respondent to custody, section 91, Cr. P. C.
17. Would have no application, and the order of remand, in my humble opinion, was invalid. In consequence, I also consider as invalid the order of the learned S. D. M. Made on 22-9-1972, requiring the surety to obtain a solvency certificate from the Taluka Mukhtiarka before he could be permitted to stand surety for the respondent, which was passed by him as a result of the order of remand.