On the 14th June 1972 at 3-00 a. m. a party of police constables arrested the two respondents since they were caught in suspicious circumstances. On the 15th they were produced in the Court of the Mukhtiar kar and 1st Class Magistrate Dokri information being laid against them under section 109, Cr. P. Code. On the same day the learned Magistrate passed an order against them under section 112, Cr. P. Code asking them to show cause why they should not be ordered to execute a bond for a period of 12 months. The Magistrate then examined the S. H. O. Mohammad Usman, the Head Constable Ghous Bux and Police Constable Mohammad Ibrahim whereafter he proceeded to pass an order under section 117 (3) requiring them to furnish bond with sureties immediately and, upon their failure to give sureties, they were remanded to custody.
2. The matter went up in a revision to the Court of Session where a learned Additional Sessions Judge after hearing counsel on both sides has recommended to this Court that the order under section 117 (3) be set aside.
3. The first reason why the learned Judge made this recommendation is that there was in this case no independent inquiry under section 117. For reasons which I have stated fully in my judgment in Criminal Reference No. 38 of 1973: The State v. Ghulam A.I and others which also I have delivered today. I am of the opinion that no independent inquiry in the sense of witnesses examined separately for the purpose of section 117 need be made. The evidence recorded in the course of the inquiry under section 112, if otherwise sufficient, can be used for the purpose. There is no need for me, therefore to restate my reasons in this case.
4. The order, however, of the learned Magistrate under section 117 appears to be purely a routine order. He has examined no witnesses other than the police officers and it does not even appear whether any opportunity was given to the respondents to cross-examine these witnesses. The evidence of the witnesses must be such as justifies a finding under section 117 (3) that immediate measures are necessary and the learned Magistrate must record his reasons for coming to such a conclusion. The order of the learned Magistrate so far as reasons are concerned, states merely this:-- ---The above named respondents were sent up by Dokri Police under section 109, Cr. P. C. An order under section 112, Cr. P. C. Was passed against the respondents. The same was read over and explained to them. They pleaded not guilty and wanted trial of the inquiry. S. H. O. Mohammad Usman is present. He has moved application for action under section 117 (3), Cr. P. C. He has deposed that the respondents are vagrants and they have no means of livelihood. They are habitual offenders and criminal minded persons. Their remaining at large without surety is dangerous for public safety and nobody comes to depose against them because of their high handedness and therefore immediate measures are necessary.
From the evidence I am satisfied that there is likelihood of commission of offences and apprehension of public safety."
5. The order does not so much as mention the names of the witnesses. It merely summarises what their evidence is and then goes on to say that the Magistrate is satisfied that "there is likelihood of commission of offence and apprehension of public safety." I see no application of the mind of the Magistrate himself to the vital question whether any immediate measures were necessary. This order, therefore, is in my opinion contrary to the requirements of section 117 (3) and I, therefore, set it aside. If the respondents are in custody by reason of this order and their failure to furnish sureties they will be immediately set at liberty.