For the purposes of this application filed under section 561-A, Cr.P.C., the following statement of facts would suffice.
2. On 29-3-1992 Ghulam Hussain Kohati, S.H.O., Chawkiwara Police Station, was patrolling alongwith his subordinate staff when he found the present applicant on Chawkiwara Road, Karachi, under suspicious circumstances. He searched the person of the applicant, but nothing incriminating was found in his possession. Since the applicant had a previous record he was arrested under section 151, Cr.P.C., and on 30-3-1992 he was sent up before Assistant Commissioner and S.D.M. City, Karachi, South, for an action under section 107/117, Cr.P.C. On the same day the learned Magistrate passed the following order under section 112, Cr.P.C. In which even the blanks were not filled and the applicant was remanded to custody for want of surety.
In the Court of Assistant Commissioner and S.D.M.
South, Karachi City.
Case No. State v.
Under section 107/1'17/151, CI.P C. Of Police Station Order under section 112 Cr.P.C.
WHEREAS and hereby likely to commit a breach of peace and disturb the public tranquillity.
And whereas on being satisfied with the police report/papers/ complaint, I/the Assistant Commissioner and S.D.M. (N). hereby call upon you to show cause on as to why you should not be entered into the personal bond in the sum of Rs. With surety in the like amount to keep the peace for term of one year.
The surety must be the resident of the same locality and solvent to the extent of the said amount.
Given under my hand and the seal of the Court.
This__________ day of_________________1990 (Sd.)
30/3.
Assistant Commissioner and S.D.M.
City Karachi--- The above order has been read over and explained to the opponent(s) in the language which they/he understand.
(Sd.) in Urdu.(Sd.)
30/3 Accused Assistant Commissioner and S.D.M.
Karachi---
3. It is in these circumstances that the applicant has invoked the inherent jurisdiction of this Court seeking quashment of the proceedings pending against him under sections 107, 117, 151, Cr.P.C.
4. I have heard Mr. Sardar Muhammad Ishaque, learned counsel for applicant and Mr. Aziz-ur- Rehman Shaikh, learned counsel for State. The latter has supported the prayer of the applicant for quashment of the proceedings.
5. Section 151, Cr.P.C., whereunder the applicant was arrested provides as follows:-- Arrest to prevent such offences: A police officer knowing of a design to commit any cognizable offence may arrest, without orders from a Magistrate and without a warrant, the person so designing, if it appears to such officer that the commission of the offence cannot be otherwise prevented."
6. The object of this section is to prevent the commission of an offence by arresting beforehand the person who intends to commit the same. It f': therefore, follows that the Police Officer arresting a person under section 151, Cr.P.C. Must have knowledge that the person so arrested had designed to commit a cognizable offence. In order that section 151, Cr.P.C., is set into motion the following requirements are necessary:--
(i) There must be a design to commit the particular offence which is cognizable.
(ii) That the police officer must have knowledge of that design.
(iii) That the person arrested must be a party to that design and it must appear to the police officer that the commission of the offence cannot be prevented otherwise than by such arrest.
7. Mr. Sardar Muhammad Ishaque, learned counsel for applicant has referred me to a wealth of case-law commencing from 1930 down to the year 1965, in support of his contention that an arrest made without the emergency contemplated by section 151, Cr.P.C. Is illegal. In the case of Gaman and another v. Emperor reported in AIR 19.30 Lah. 348, it was made clear by a D.B. That an arrest without emergency contemplated by section 151, Cr.P.C., is illegal and the person whose arrest is attempted may offer resistance to such an arrest. This view was followed in cases of Prahalad Panda v. Province of Orissa reported in AIR 1950 Orissa 107, Ahmad and others v. The Crown reported in PLD 1954 Lah. 119, Shravan Kumar Gupta v. Superintendent, District Jail, Mathura and others reported in AIR 1957 All. 189, and Muhammad Ali v. Sri Ram Swarup and others reported in AIR 1965 All.
161. In the case of Ahmad and others a learned Judge of Lahore High Court examined this aspect of the case and observed that mere apprehension of breach of peace would not entitle the police to arrest any one. It 'was further observed that the case must be of emergency and there must be facts showing that without arrest commission of offence could not be prevented.
8. From the perusal of the police report submitted against the applicant under sections 107, 117, 151, Cr.P.C. It is clear that there was no emergency and the arrest of the applicant was illegal and without lawful authority, which amounts to wrongful detention.
9. The perusal of the report submitted by S.H.O., Chawkiwara Police Station,-again makes it clear that there was no occasion of breach of peace and a person who was found on Chawkiwara road without possessing any incriminating article was arrested al the sweet will of the police officer. It is again unfortunate that on the basis of the said report the learned Assistant Commissioner and S.D.M. City, Karachi South, passed an order under section 112, Cr.P.C. Without taking trouble to even go through the provisions of section 107, Cr.P.C. Anal without realizing that the blanks left on the said order under section 112, Cr.P.C., were not even filled. It was therefore, not unusual for a Magistrate of this type to remand the applicant to custody for want of surety. He should have known that the person proceeded against under section 107, Cr.P.C. Cannot be remanded to custody for want of surety unless an order under section 117(3), Cr.P.C., is passed. If any authority is needed the case of Ghulam Hussain Shahani v. The State reported in 1989 MLD 2657, may be cited with advantage.
10. Having regard to the above circumstances, I am of the view that the proceedings drawn against the applicant under sections 107, 117, 151, Cr.P.C: are mala fide and arbitrary and the order passed under section 112, Cr.P.C., on the basis of the report submitted by S.H.O., Chawkiwara Police Station is perverse. Accordingly, the application filed under section 561-A, Cr.P.C., is allowed and the proceedings pending against the applicant before the Assistant Commissioner and S.D.M. City Karachi South, are hereby quashed.
By a short order, dated 28-5-1992 I had allowed this application filed under section 561-A, Cr.P.C.
And these arc the reasons of the said order.
N.H.Q./M-1668/K