' By this Criminal Miscellaneous Application the applicants have sought the following relief:--
(a) quash the criminal proceedings initiated against the applicant in Crime Case No, Nil of 1998, dated 28-2-1998 under section 107/117/151, Cr.P.C. Of Police Station Artillary Maidan, Karachi, pending in the Court of Sub-Divisional Magistrate Preedy Karachi (South) and, therefore, the applicants be set at liberty.
(b) any other relief(s) which this Honourable Court may deem fit and proper in the circumstances of the case may be awarded.
(c) surety bond of the applicants be discharged."
2. The brief facts of the case as disclosed in the application are that the applicants are labourers and masons. The owner of building bearing No,70/2, SB-6, Saddar Bazar, Quarters, Karachi, namely Aslam Qureshi and Shams Ahmed Burney contacted the applicants through their contractor for demolition of the abovementioned building excluding Shop No,2 situated on ground flood of the building known as Hyder Terrace.
3. The abovenamed owners/attorneys of the building in question moved the K.B.C.A. For the demolition of building and they were accorded such permission by K.B.C.A. Vide letter, dated 4-2- 1998. The demolition work was thereafter started and while 6% demolition work was complete a petition bearing C.P. No,D-155 of 1998 was filed and status quo order was issued. Thereafter, the owners of the building in question filed petition bearing C.P. No,D-164 of 1998 in this Court. On 25-2- 1998 both the petitions were disposed of with observations that demolition work may be carried out in terms of permission order and interim order of status quo passed in C.P. No,D-155 of 1998 was recalled. It was within the knowledge of respondent.
4. It is further stated that on 28-2-.1998 the respondent (S.D.M. Preedy South) alongwith S.H.O.
Artillary Maidan, Karachi went at the site wherefrom the aforesaid 13 applicants were arrested and they were sent up under sections 107, 117 and 151, Cr.P.C. In the Court of respondent S.D.M. Artillary Maidan, Karachi.
5. The respondent S.D.M. Preedy has filed parawise comments wherein he has denied having gone to the place of arrest alongwith S.H.O., however, he has admitted therein that there was apprehension of breach of peace. The police, therefore, sent up the applicants under sections 107, 117 and 151, Cr.P.C.
6. I have heard Khawaja Shamsul Islam, for the applicants and Mr. Sharafat Ali Khan, learned counsel on behalf of A.-G. For the State, who has conceded to the quashment of proceedings pending before the trial Court.
7. The perusal of the record shows that on 28-2-1998 Sub-Inspector Khalid Zaman of Police Station Artillary Maidan, Karachi, submitted report No, Nil under sections 107, 117 and 151, Cr.P.C. Before S.D.M.
Preedy Karachi, against the applicants stating therein that he was on patrolling duty in his jurisdiction where he received information that some persons have assembled at Raja Ghazanfar Ali Khan Road to demolish the building and there is possibility of breach of peace. He, therefore, reached at the pointed place where he found that some persons were present and they were exchanging hot words over the demolition of building. Apprehending imminent breach of peace he arrested them under section 151, Cr.P.C. And sent them to S.D.M. Preedy, Karachi, alongwith the report contents whereof are reproduced hereinabove.
8. The S.D.M. Preedy, Karachi, on receipt of report, remanded the applicants to custody. On 3-3-1998 order under section 112, Cr.P.C. Was passed by the learned S.D.M. Preedy, Karachi, which is reproduced hereunder in extenso:-- "Order under section 112, Cr.P.C.
' Whereas S.H.O., Police Station Preedy/Artillary Maidan has lodged a complaint against you alleging therein, that you{{URDU TEXT}} ' and due to this act of you there is a likelihood of breach of public tranquility.
' And whereas on being satisfied with the police report/complaint I, Asad Islam, S.D.M. Preedy, Karachi South, hereby call upon you to show cause as to why you should not be ordered to execute personal bond in the sum of Rs,20,000 (Rupees twenty thousand only) amount to keep good behaviour for a period of one year.
' Given under my hand and seal of this Court, this 2nd day of March, 1998.
(Sd.) Sub-Divisional Magistrate, Preedy, Karachi (South)."
' The above order has been read over to the accused and explained to him in the Urdu language to which each one understands fully.
(Sd.) Sub-Divisional Magistrate, Preedy, Karachi (South).
9. The section 112, Cr.P.C. Lays down that when a Magistrate acting under sections 107, 108, 109 or 110, Cr.P.C. Deems it necessary to require any person to show cause, under such section he shall make an order in writing, setting forth the substance of the information received, the amount of the bond to be executed, the term for which it is to be in force and the number, character and class of sureties, if any, required. Whereas section 113, Cr.P.C. Requires that if the person in respect of whom such order is made is present in Court it shall be read over to him if he so desires, the substance thereof shall be explained to him. (underlining is mine).
10. The perusal of R & P of trial Court shows that on 28-2-1998 when the applicants were produced alongwith the report they were remanded to custody. Neither order under section 112, Cr.P.C. Was passed nor was the compliance of section 113, Cr.P.C. Made. The mandatory provisions of law were flouted. Thus, the very remand of applicants to custody was illegal and not warranted by law.
11. The order reproduced hereinabove is cyclostyled and only blanks have been filled. Two different pens containing different inks have been used therein. It suggests that it was passed in a mechanical manner without applying judicial mind. This practice is contrary to law and it is deplorable which is deprecated. The Magistrates while passing such orders should apply their own independent mind and they should not depend upon the ipse dixit of police. The mere fact that enmity or ill feeling was existing between the two parties was not sufficient to warrant action under section 107, Cr.P.C.
12. The order under section 112, Cr.P.C. Was passed on 3-3-1998 for a term of one year which has expired on 4-3-1998. Even on this score proceedings have become infructuous. In this respect reference can be made to the case The State v. Shafi Muhammad anothers PLD 1961 (W.P.) Kar. 118, Nur Nabi v. The State 1968 PCr.LJ 131 and Mira v. The State 1978 PCr.LJ 161.
13. In the case of N. Reemes and 2 others v. The State 1980 PCr.LJ 126 it was observed that a bare possibility of breach of the peace is not enough to justify proceedings under this section. There must be at least a reasonable probability of such a breach where the evidence on the record neither discloses any breach that has already occurred or any probability that it is likely to occur but only makes vague surmises of such possibility, proceedings taken under the section may be quashed.
14. In order under section 112, Cr.P.C. No specific instance giving date, time and place has been shown from which it could be deduced that there was any apprehension of breach of peace which warranted the initiation of proceedings under section 107, Cr.P.C. In the similar circumstances I had quashed the proceedings in the case of Muhammad Irfan v. Mst. Khalida Parveen and 3 others 1999 M LD 419.
15. The upshot of the above discussion is that proceedings under section 107,117 and 151, Cr.P.C pending against the applicants before S.D.M. Preedy, Karachi, in above case are hereby quashed.
16. By my short order, dated 19-2-1999 I had quashed the proceedings and above are the detailed reasons for passing such order.