; The applicant has sought quashment of the proceedings initiated by learned S.D.M., North Nazimabad, Karachi under sections 107/117, Cr.P.C. Against the applicant.
2. Background of the case is that one Muhammad Yahyah Khurshidi, General Secretary of Jamia Masjid Al-Falahiyah made a complaint in writing to the Deputy Commissioner, District Central, Karachi alleging that applicant Muhammad Naeem who was appointed as Imam of Jamia Masjid, Sector 10, North Karachi was interfering in the affairs of the mosque and there was apprehension of breach of peace. The application was forwarded to S.D.M., North Karachi with a direction to resolve the problem. The Sub-Divisional Magistrate, North Karachi recorded the statement of Muhammad Yahyah Khurshidi wherein he stated that applicant Naeem was employed as Imam of Masjid Al- Falahiyah on 1-8-1998 but now he is interfering in the affairs of the mosque and instigating the people which is likely to cause breach of peace. The S.D.M. Directed that a case be registered under sections 107/117, Cr.P.C. And summons be issued for 16-1-2001. Apparently, on 3-1-2001 an order was passed under section 112, Cr.P.C. And read over to the applicant, however, when the applicant applied for certified copy of the relevant papers the same could not be furnished to him.
3. The R&Ps of the proceedings were called for and perused. It is surprising to note that in these R&Ps originals of the case diary, show-cause notice issued under section 112, Cr.P.C., application of surety bearing order of the S.D.M. Accepting the same and the relevant applications made by the Trustees were missing which were perhaps withheld by the S.D.M.; however, photocopies thereof were .Furnished to this Court. Learned Sub-Divisional Magistrate has yet to explain why such conduct was demonstrated by withholding the original record which for no reason could be denied to the High Court when called for.
4. The R&Ps were perused with the assistance of learned State Counsel Mr. Muhammad Ismail Memon and it was noted that the order under section 112, Cr.P.C. Has been passed on 3-1-2001 and there is an endorsement at the bottom that it was read over and explained to the applicant. A careful perusal of the case diaries revealed that on 3-1-2001 it was ordered by the learned S.D.M.
That summons be issued to opponent Muhammad Naeem the applicant herein, yet the order under section 112, Cr.P.C. Mentions that it was read over to him. It is strange to note that not even on 3-1-2001 but on subsequent dates the case diaries mention continuous absence of applicant and on 16-1-2001 it was directed that bailable warrants of arrest be issued against him. The position continued and the diary dated 19-3-2001 shows that non-bailable warrant of arrest was ordered to be issued against the applicant. Lastly on 28th April, 2001 the applicant is shown to be present, for the first time. A report dated 16-2-2001 of Police Station Buffer Zone is on record which indicates that the applicant had gone for performance of Hajj. In these circumstance it is absolutely unbelievable that statement under section 112, Cr.P.C. Was read over to the applicant on 3-1-2001.
This is ex facie an incorrect statement. Mr. Muhammad Ismail Memon, learned State Counsel is also unable to find out any explanation from the record to justify the inconsistency. The case diaries are also silent if the order under section 112, Cr.P.C. Was actually passed/read over on any date.
5. Learned counsel for the applicant relying on Mehar Khan v. State 1975 PCr.LJ 257, Ghulam Muhammad v. State 1982 PCr.LJ 777 and Ghulam Muhammad v. State 1997 PCr.LJ 559 contended that an order under section 112, Cr.P.C. Is the foremost action to be taken in the proceedings initiated under Chapter VIII, Cr.P.C. But the above circumstances, according to him, show that the order under section 112, Cr.P.C. Was manipulated after receiving notice from this Court for production of R&Ps. Secondly, learned counsel submitted that a mechanical and stereo type order has been passed by the learned S.D.M. Which is essence does not satisfy the requirements of an order under section 112, Cr.P.C. He further argued that as already complained by him the learned S.D.M. Declined to furnish certified copies of the relevant documents to the applicant despite an application made by him in that behalf, which prejudiced the defence of the applicant.
6. The learned State Counsel fairly conceded that in view of the above stated irregularities in the proceedings he was not able to defend the action taken by the learned Magistrate which were patently not in accordance with law.
7. The learned Magistrate, in the parawise comments on 16-5-2001, has mostly dilated upon the facts and circumstances of the main complaint and has attempted to make out that there was apprehension of breach of peace and there was justification for initiating the action.
8. The position obtaining from the case diaries has already been discussed. The only paper which can be taken as the order passed under section 112, Cr.P.C. Shows that on ,3-1-2001 Muhammad Naeem was called upon to show cause why he should not execute a personal bond in the sum of Rs,1,00,000 with one surety in the like amount to keep peace for a term of one year but by no stretch of imagination it could be conceived that on 3-1-2001 Muhammad Naeem, the applicant was present and the said order was read over and explained to him within the meaning of section 114, Cr.P.C. On the contrary, the case diaries establish, undoubtedly, that applicant was not present on that day. The diaries are totally silent if an order was ever passed. Yet the affidavit of surety bears the signature of the S.D.M. In token of having accepted the surety in the sum of Rs,1,00,000. In the proceedings under Chapter VIII, Cr.P.C. Cardinality attaches to the show-cause notice issued under section 112, Cr.P.C. Which in the instant case is available on record but in the circumstances stated above it suffers from utter absurdity and absolute inconsistency.
9. Nevertheless, it would be relevant to refer to the following observations made by this Court in the case Mehar Khan v. State 1975 PCr.LJ 257:-- ' "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 filed 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 filling 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, 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."
10. The manner in which the order has been passed shows that the learned S.D.M. Has never applied his mind to the facts of the case and the order as such does not possess legal sanctity.
11. All the same, a document labelled as undertaking/settlement is available on record which shows that the dispute between the applicant and the Managing Committee of the Trust has been settled. The undertaking bears the signature of complainant' Muhammad Yahyah Khurshidi, the General Secretary of the Trust. Learned Magistrate, in the comments has not explained how the breach of peace continued despite such statement.
12. In the aforesaid circumstances the proceedings wholly suffer from grave inconsistencies and irregularities and amount to abuse of process of Court. The application is accordingly allowed and the proceedings are quashed.
13. While parting with this case it may be observed that during the proceedings of this application a complaint was made that the learned Magistrate has declined to furnish certified copies to the applicant whereupon explanation of the learned Magistrate was called as to why the certified copies are withheld whereas it is a valuable right of the party within the meaning of section 548, Cr.P.C., Article 87 of Qanun-e-Shahadat and section 24-A of General Clauses Act which cannot be denied. No explanation has as yet been furnished. Besides, while forwarding the R&Ps the original record of case diaries and order under section 112, Cr.P.C. And some other documents have been withheld which conduct is also unbecoming of a Court subordinate to the High Court and the learned S.D.M. Has to explain why action be not taken in this behalf. Such explanation be obtained in separate proceedings.