1. Through Petition No.62/95 which is fixed under section 561-A, Cr.P.C the petitioner has impugned order of the learned S.D.M, Warah dated 10-11-1994 whereby petitioner Muhammad Yousuf was required to furnish a bond in the sum of Rs.10,000 for a period of 12 months.
2. In Criminal Miscellaneous Application No.63 of 1995 the petitioner Abdul Salam who is nephew of Muhammad Yousuf (Petitioner in Criminal Miscellaneous Application No.62 of 1995 has impugned order of learned S.D.M Warah which was passed on the same date as of the above said order. More or less, complaint of the S.H.O. And the order of the S.D.M. Are based on identical and similar facts.
3. Therefore, through this order, I intend to dispose of both these quashment application.
4. Facts of the case in Criminal Miscellaneous Application No. 62 of 1995 are that petitioner Muhammad Yousuf was arrested by Police Station Naseerabad on 10-11-1994 and was produced before the Sub-Divisional Magistrate, Warah with the report of S.H.O.-dated 10-11-1994 which contains allegations that the petitioner is a habitual thief, notorioms, criminal and runs pathari, that the petitioner used to receive stolen properties and is harbouring thieves of different places and remains armed with unlicensed deadly weapons during odd hours of night and used to harass public. In this report, S.H.O. Cited himself as well as three other police officials as witnesses, all pertaining to the same police station. The S.H.O. Police Station Naseerabad in support of his report cited three cases which are as follows: (i) Crime No.104/85 of Police Station Naseerabad under section 353/307, P.P.C. (ii) Crime No.93/89 Police Station Naseerabad under section 324/147, P.P.C.
(iii) Crime No.28/94 under section 379, P.P.C. Of Police Station, Naseerabad.
5. Facts of case Criminal Miscellaneous Appeal No.63 of 1995 are that the petitioner Abdul Salam S/o Abdullah Khan Jatoi was arrested on 10-11-1994 by S.H.O. Nasirabad and was forwarded to the S.D.M, Warah with the S.H.O. Report under section 110/55, Cr.P.C. (in identical manner as of Criminal Miscellaneous No.62 of 1995). It was alleged in the said report of the S.H.O. That the Criminals belonging to far off places used to visit this petitioner. That the Petitioner also moves in the odd hours of the night armed with deadly weapons and commits crimes and abets in commission of crimes. He receives "Bhung money" and no permanent source of livelihood. That he is "Badmash" and so dangerous that nobody comes forward to testify against him. In the end of report four F.I.Rs were cited as record of crime committed by Abdul Salam. One S.H.O., one A.S.I and two constable of the P.S. Nasirabad were shown as witnesses.
6. According to learned counsel for the petitioners the first case as cited in the reports was disposed of and both the petitioners were acquitted. The second case was a simple case of injury which has also been disposed of and the petitioners/applicants were acquitted. The 3rd case is pending but the petitioners have not been named in the F.I.R. And he was acquitted under section 169, Cr.P.C.
7. I have heard Mr.Roshan Ali M. Solangi, Advocate for the petitioners and MrAhmed Ali M. Shaikh, Advocate for the State. I have also perused the R and PS of the Court of S.D.M. Warah. It is vehemently contended by Mr. Solangi that on the same day the learned S.D.M. Without holding any preliminary enquiry and on the wild allegations of the S.H.O. Directed the petitioner to execute bond under section 112, Cr.P.C. According to learned counsel the impugned order is not sustainable inasmuch as there does not appear any satisfaction of learned S.D.M. As provided under section 117(3) of Cr.P.C. He has relied upon the case of Ghulam Shabir v. The State 1993 PCr.LJ 146. In view of the facts of the case and the established law, the learned counsel appearing for the State has not supported the impugned order.
8. It was held by Mr. Mukhtar Ahmed Junejo, J.(as he then was) in the case of Ghulam Shabir that when an order under section 112, Cr.P.C. Is passed without application of mind, and on the wild allegations against the applicant which are general and vague, lacking in particulars and instances, such order is liable to be quashed. In the said reported case the learned Judge has laid down this rule after following the case-law reported in case of Ghulam Nabi v. The State 1985 PCr.LJ 257, Luqman v. State 1986 PCr.LJ 1230, Imdad Khan v.The State 1983 PCr.LJ 205, Miral v. The State 1978 PCr.LJ 161, State v. Hassad PLD 1976 Kar.928, Mazan alias Mazno v. The State PLD 1975 Kar. 1035 and the case of Uris v.The State PLD 1981 Kar. 50.
9. Detail scrutiny of both the cases files summoned from the Court of S.D.M. Warah reveals that on the same day when the S.H.O. Nasirabad filed his reports under section 107, Cr.P.C. The learned S.D.M.
10. Has passed order under section 112, Cr.P.C. It further reveals that no other material was placed 8 by the S.H.O. Before the S.D.M., such as, copies of F.I.R., challan or any conviction order, to support the allegations as raised by the S.H.O. All the witnesses including S.H.O. Belongs to the same and one Police Station. It also appears from the record that the petitioners were arrested previously and were produced by the police before the S.D.M. Who have asked them about the, maltreatment, if any, at the hands of the Police. There must be some material, prima facie, before the S.D.M in support of the abovementioned allegations of the S.H.O, to form the basis of an order under section 112, Cr.P.C. In the instant case there is no material to show that the Petitioners were ever involved in the cases of section 13-D Arms Ordinance 1965, or in the crimes of section 411. 400, 391, PY.C. It is very pertinent to note the S.D.M. Has used the allegations of being "notorious criminals and run pathari" as well as of C harassing public, but there is no such allegations in the report of the S.H.O.
11. The requirement of law as provided under section 107(1), Cr.PIC. Is that there must be "sufficient ground for proceeding," but in the instant cases, it is successfully proved by the petitioners that there were no sufficient grounds for the S.D.M. To proceed against them. For reference see Sodho v.
12. State 1991 PCr.LJ 340.
13. The facts of these cases are identical to the above said reported cases and therefore the rule laid down in the case of Ghulam Shabir is fully applicable on the facts of the present cases. In view of the facts and law stated hereinabove, I am satisfied that continuance of the proceedings pending before the learned S.D.M. Warah amounts to abuse of the process of law, p therefore, are liable to be quashed. Both the above said applications filed under section 561-A, Cr.P.C. On behalf of Muhammad Yousuf S/o Muhammad Yaqoob and Abdul Salam S/o Abdullah Khan are accepted and the impugned orders, dated 10th November, 1994 passed by the S.D.M. Warah as well as proceedings pending before him are hereby quashed.