This is a bail application under section 497, Cr.P.C., filed on behalf of the applicant who is involved in a proceeding under sections 110/117--- Cr.P.C., pending before the S.D.M. Warrah. Such proceedings under Chapter VIII of the Criminal Procedure Code are in the nature of the preventive action. Any person against whom any proceeding under the said Chapter is pending, he cannot be treated to be an accused of any offence. It is not an offence, either according to the Pakistan Penal Code or in reference to any other special law, therefore, resort to the provisions of section 497, Cr.P.C., in the circumstances of this case) does not arise. (See Muhammad Rashad Hayat Khan v. Malik Khair Din and another PLD 1972 SC 74). In this reported case a Full Bench of the Honourable Supreme Court held that a person against whom preventive action is initiated under section [07/151, Cr.P.C., is not accused of any offence, bailable or non--bailable and therefore, provisions of sections 496 and 497, Cr.P.C., are not available. (For further reference see Ghulam Qadir v. Mistri Fazal Din, PLD 1962 SC 331). However, in the interest of justice, I convert this bail application into quashment petition and treat this application as a petition under section 561, Cr.P.C., particularly in view of the peculiar and special circumstances of the case. (See Capital Development Authority, Islamabad v. Khuda Bakhsh and 5 others 1994 SCMR 777 at 781 and Amir Jan and 3 others v. Commissioner, Quetta Division and 5 others PLD 1987 Quetta 55).
2. Briefly, the facts leading to this petition are that on 4-9-1996 learned S.D.M. Warrah, District Larkana, passed an order under section 112, Cr.P.C., directing the applicant to execute a bond in the amount of Rs.40,000 with two sureties in the like amount for his good behaviour and for a period of three years. Since applicant was not able to produce the required sureties, as such, he was remanded to the District Jail, Larkana. It appears that on the same day, the learned S.D.M.
Conducted further proceedings under section 117, Cr.P.C., and examined one Ghulam Rasool Shaikh, who stated that the present applicant is involved in some illegal activities, including allegation of provoking different sects to fight over graveyard issues. Accordingly, learned S.D.M. Passed a final order under section 118, Cr.P.C., and directed the applicant to furnish bond for good behaviour for three years in the same amount as of his earlier order passed under section 112, Cr.P.C.
3. The allegations before the Magistrate against the present applicant were vague, wild and general in nature. There was no satisfactory material before the Magistrate to draw a conclusion that the applicant "is guilty of the offences alleged against him." Time and again, this Court has held that the above provisions preventive in nature and cannot be allowed to be used as a weapon of oppression and to deprive a citizen of his most valuable fundamental right, i.e. Liberty. In Mehar Khan v. The State (1975 PCr.LJ. 257) it was held by this Court that the evidence of general reputation or conduct must be based on a sound foundation and must be coupled with specific instances of overt act with particulars of the cases in which the person, facing such proceedings, was involved, challaned or convicted. In the case of Muhammad Yousuf Patoolo and another v. The State (1996 MLD 20) it was held by me that an order passed under section 112, Cr.P.C., by a Magistrate on wild allegations which are general, vague and lacking in particulars and instances, is liable to be quashed. (For further reference see Ghulam Shabir v. The State 1993 PCr.LJ 146; 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 Uris v. The State PLD 1981 Kar. 50).
4. The applicant being aggrieved of the above said order of S.D.M., preferred a criminal appeal before the Court of learned Sessions Judge, Larkana. Alongwith this appeal/revision, bail application was also filed which was dismissed by the learned Sessions Judge, Larkana. Applicant has now approached this Court with the prayer that he may be granted bail pending his appeal/revision before the Sessions Judge which is misconceived for the reason discussed in para. 1 above. To do the substantive justice, I am treating this application as petition under section 561-A, Cr.P.C.
5. I have heard Mr. Muhammad Ayaz Soomro, Advocate for the applicant and Mr. Muhammad Bachal Tonyo, Additional Advocate-General Sindh who has extended his no objection to the grant of his bail plea. I have also perused the order dated 19-9-1996 passed by the Sessions Judge, Larkana and am not able to persuade myself to agree with him. It appears that the learned Sessions Judge without applying his conscious and judicial mind to the facts of the case, has rejected bail plea in most cursory and flimsy manner. The learned Appellate Court ought to have held that the proceedings under sections 112,117 and 118, Cr.P,C,, are in the nature of preventive measures where the person facing such proceeding, as a matter of right, is entitled to bail. Learned Sessions has also rejected the bail application on the ground that the application under section 497, Cr.P.C,, is not maintainable in an appeal. He should have converted the plea of bail into a revision application and would have entertained the same in order to do justice. It is well-settled law that wrong mention of any provision of law does not deprive an applicant of relief who otherwise is entitled to such relief according to law. Learned Presiding Officers of both the subordinate Courts have acted in most unjust and illegal manner.
6. I have also perused tire order dated 4-9-1996 passed by learned S.D. M Warrah which reflects several irregularities as well as illegalities. The allegations levelled in the order passed under section 112, Cr.P,C., were not only vague but wild in nature. The result of so-called proceedings under section 117, Cr.P.C., was contrary to the allegations in the report of 110 Cr.P.C. It is settled law that such proceedings are judicial in nature but despite that on the same day all the three orders, i.e. Under sections 112, 117 and 118 Cr.P.C.Were passed, which means that on the same day the proceedings had commenced and were terminated on the same day. This Court has never upheld such practice as it also amounts to violation of natural justice. (See Khuda Bux v. The state 1976 PCr.LJ 412, A.I Sher v. S.D.M. Milpur Mathelo and another1982 PCr.LJ 750). In the case of A.I Sher, a learned Singe Judge of this court Naimuddin J. (as his lordship then was) followed the rule laid down by this Court in the case of Adam v. The State (1977 PCr.LJ 1107) and quashed the proceedings under section 107/117, Cr.P.C., on the grounds inter alia, that the orders under sections 112 and 117(3), Cr,p.C, passed on the same day by the S.D.M., amounts to violation of natural justice In the present case, three orders were passed by the S.D.M. On the same day Therefore, the rule laid down by this Court in the case Adam, Khuda Bux and A.I Sher are fully attracted in the case in hand.
7. Another aspect of the case is that the applicant was asked to execute a surety bond for good behaviour for a period of three years, which act of learned S.D.M., was again patently illegal. In the case of Nur Nabi v. The State (1968 PCr.LJ 131) it was held by Dorab Patel, J. (as his Lordship then was after referring to the case of this Court The State v. Shafi Muhammad (PLD 1961 Kar. 118) that the power of the Magistrate to take security was limited to one year. (For further reference see The State v. Mahmood PLD 1974 Karachi 205). The demand for two sureties for Rs.40,000 (Forty thousand) was againPunitive in nature. It is settled law that the purpose of holding such proceedingswhich are preventive in nature and to demand security is not to punish but to prevent commission of offence in future and to protect general public from desperadoes and habitual offenders. (For any reference, see A.I Nawaz v. The State 1992 MLD 2475).
8. All the above facts show that the initial order of the S.D.M., as well as subsequent two orders passed on the same day are not sustainable in law. The Sessions Judge has ignored all these important and material facts of the case and to apply his mind to the legal questions involved in the case, which has resulted in causing hardship and injustice to the applicant.
From the above circumstances of the case, I am fully convinced that the applicant is entitled to be released since the proceedings under section 107/117 Cr.P.C., are not maintainable in law.
Accordingly, I accept this petition and instead of extending bail to the applicant, set aside all the three orders dated 4-9-1996 passed by the S.D.M. Warrah, District Larkana. On 29-9-1996, through a short order, the bail application was converted into petition for quashment and the above said proceedings were quashed and the applicant was set at liberty.
10. Copies of this order be forwarded to the Chief Secretary, Government of Sindh, as well as to the Registrar at the Principal Seat for necessary and proper action.