1. This revision application under sections 435, 439 and 561-A, Cr. P. C. Is directed against proceedings taken by the learned S. D. M, Shahdadpur, under section 110, Cr. P. C. Against applicant Mehar Khan and it is prayed that the said proceedings be quashed or alternatively the applicant Mehar Khan be ordered to be released on bail.
2. The facts which form the background of this application are that on 22-10-1973, information was laid by the S. H. O., Shahdadpur Police Station before the learned S. D. M., Shahdadpur, to the effect that the applicant herein is by habit a thief, deals in disposal of stolen property, receives bhung money, that thieves of distant places armed with weapons have been visiting him, that he commits and gets offences committed and that he is a ring-leader of thieves and dangerous persons. On the basis of this informa--petition, the learned S. D. M. On that very day issued an order under section 112, Cr. P. C., requiring the applicant to show cause why he should not be ordered to execute a bond in the sum of Rs, 5,000 with two solvent sureties in the like amount to keep good behaviour for a period of 12 months. The sureties were required to be respectable Zamindars paying Rs. 5,000 land revenue assessm ent per annum and residing within the radius of five miles from the permanent place of residence of the applicant. It appears that the applicant, who was produced in custody by the police, was read over the said order under section 112, Cr. P. C., and thereafter he was remanded to custody. However, no order under section 117 (3), Cr. P. C. Was passed by the learned Magistrate.
3. Mr. Ramchand, the learned counsel for the applicant, assails the proceed--ings before the learned S. D. M. And the orders passed by him on several grounds. His contention is that the information laid before the learned Magistrate is vague, stereo-typed and does not comply with the requirements of section 110, Cr. P. C. His contention in other words is that on the basis of this information, the learned S. D. M. Could not have been satisfied that it was necessary to proceed against the applicant under section 110. Cr. P. C. And hence no order under section 112, Cr. P. C. Could properly have been passed by the learned Magistrate in this case. The requirements of section 110, Cr. P. C.
4. Are that the persons who is to be proceeded against under the said section should be by habit a robber, house-breaker, thief, or forger, or should be by habit a receiver of stolen property or should habitually protect or harbour thieves or aids in the concealment or disposal of stolen property or should habitually commit or attempt to commit offences involving any breach of the peace or should be so desperate and dangerous as to render his being at large without security hazardous to the community. No doubt section 110, Cr. P. C. Provides for admission of evidence of general reputation or conduct, but such evidence must be based on a sound foundation and ordinarily such evidence must be coupled with specific instances of overt acts committed by the person to be proceeded with and particulars of the cases in which he was involved, challaned or convicted.
5. In the instant case the information laid before the learned Magistrate consists of only general and sweeping allegations, without giving any specific particulars or instances. No particulars have been mentioned of the times or places where any acts falling within the ambit of section 110, Cr. P. C. Are said to have been committed by the applicant nor have the names of any persons been mentioned in the information in respect of whom such offences or overt acts were committed or who were the victims of the unlawful activities of the applicant. The information cites only three witnesses in support of the allegations, all the three witnesses being police officers. Mr. Ramchand has referred me to a decision of this Court, reported as Qasim v. The State (PLD 1971 Kar. 473) wherein it was held that although a police officer is a competent witness to speak about the reputation of a ,person residing within his jurisdiction and with regard to whom he has occasion to make observations and enquiries in the course of his official duties, the evidence of such a police officer should be put to a strict scrutiny in the light of the circumstances which form the basis of his belief and it is unsafe to base the order on his view alone if it is not founded upon any solid fact. In the instant case, the learned Magistrate, examined the two police A. S. Is., who have been cited as witnesses in information lodged by S. H. O. Abdul Hussain Qadri though the S. H. O. Himself has not been examined. Their evidence is a mere repetition of the informa--petition lodged by the S. H. O.
6. And gives no further particulars. According to an annexure appended to the information lodged by the S. H. O. The applicant was suspected in Crime No. 148 of 1964, under sections 366 and 380, P. P.
7. C. And was challaned in Crime No. 108 of 1972 under sections 324 and 504, P. P. C. Apart from the fact that the case under sections 324 and 504, P.P.C. Ended in compromise, the involvement of the applicant in such a case would not bring the applicant within the ambit of section 110, Cr. P. C., for it does not come within the list of offences specified in section 110, Cr. P. C. Which can be made the foundation for proceedings under the said section. Furthermore, before proceedings can properly be taken under he aforesaid section, it must be shown that the person complained against habitually or persistently or repeatedly commits one or more of the acts which have bee In specified in the said section, which, however, is not the case here. The mere fact that the applicant was suspected of bring involved in a case of abduction and theft can also not be used against the applicant for the purposes of proceedings against him under section 110, Cr. P. C., as was held in Qasim v. The State.
8. Mr. Ramchand also contended that despite the fact that the learned Magistrate passed no order under section 117(3), Cr. P. C., the applicant was remanded to custody and has remained in custody since 22-10-1973. I have examined the record and found that the position stated by Mr. Ramchand is correct-in that no order under section 117 (3), Cr. P. C. Has been passed a by the learned Magistrate. It is not permissible for a Magistrate to remand girl person to custody against whom proceedings have been initiated under section 110, Cr. P. C. Unless an order is passed against him under section 117 (3). Cr. P. C., which order must be based' on proper and adequate evidence.
9. There is still a further irregularity committed by the learned Magistrate which has been pointed out by Mr. Ramchand. This irregularity lies in the fact that the learned Magistrate has signed a typed carbon copy of an order, in which he has filled in merely the name and particulars of the applicant and the amount of land revenue which each surety should be paying. Even the sum in which the applicant is to execute the P. R. Bond is in type in the` carbon copy. My Lord, the Chief Justice, in Criminal Revision Nos. 70 and 71 of 1973 had occasion to criticise in strong terms such mechanical and stereo-typed orders. I regret that the practice of filing in such carbon copies still continues to persist despite the strong observations of my Lord the Chief Justice. The manner in which the particulars have been filled in the instant case in the order under section 112, Cr. P. C. Strongly indicates that the learned S. D. M. Has not applied his mind to the facts of this case at all and that he has passed a mechanical and stereo-typed order. I strongly suspect that the learned Magistrate is not even aware of the requirements of section 110, Cr. P. C.