' It is stated that the first two petitioners' brother Ali Nawaz was murdered by Umaid Ali, Malik Mohammad and Ali Shan against whom a case under section 302/149, P. P. C. Has been registered and is in progress. These accused persons have been released on bail. One of the accused i,e, Malik Mohammad bad also lodged a complaint under section 307, P. P. C. In respect of the aforesaid occurrence. That too is pending. The petitioners moved the relevant authorities for transfer of the investigation from the local police and it is stated that they have been successful and the case has now been entrusted to the Crimes Branch. One of the accused persons, namely, Malik Mohammad, moved the local police authorities for initiating proceedings, against the petitioners under section 107/151, Cr. P. C. Whereupon the S. H.
0. Concerned reported after stating the aforesaid facts about the murder that on account of the murder case, there is acute enmity between the parties. He, further, observed that though there is no apprehension of immediate breach of peace but it is possible that at any time under provocation the parties may fall out and a serious occurrence ensue. Both the parties be, therefore, bound down. This report is dated 4-8-1976. On 7-8-1976, the learned Magistrate passed an order for summoning the petitioners through warrants for 13-8-1976. This order has been challenged by the petitioners.
2. Learned counsel for the petitioners has contended that the order of the learned Magistrate is altogether illegal for the reason that no order under section 112, Cr. P. C. Could have been passed without saying as to what were the grounds for proceedings under section 107, Cr. P. C. And the impugned order does not indicate any (?) Reliance is placed on Ghulam Akbar and 2 others v. The State and another (1). Learned counsel has also referred to Syed Ijaz Ali Shah v. Mst. Iqbal Begum
(2) to contend that unless there was an apprehension of immediate breach of peace no order like the one impugned could have been passed by the learned Magistrate.
3. Learned counsel for the complainant party has referred to Mojibor Rahman Mullick and 2 others v. Tobarak Mahji (3) and Muhammad Ishaque Chowdhury and another v. Nur Mahal Begum and others (4) for contending that even if there were a defect in the order of the learned Magistrate, the petitioners could ask for further details.
4. Learned counsel for the Stare has supported the contentions raised by the learned counsel for the respondents.
5. From the statement of facts made above it would appear that the report of the S. H.
0. Concerned for initiating proceedings under section 107/150, Cr. P. C. Was that though there was no immediate apprehension of breach of peace but since at any time, on account of the provocation, the parties may fall out, they be bound down. From the impugned order of the learned Magistrate, it does not appear as to whether he had perused the report of the Police. He has also without giving any reason, summoned the petitioners through warrants the order undoubtedly has been passed without application of mind and is consequently liable to be set aside on this score. It is, therefore, set aside. However, it is clarified that if the Police authorities, at any stage, came to the conclusion that there are circumstances or reasonable grounds to initiate the proceedings afresh, it may do so, and the learned Magistrat may pass any order he deems fit in accordance with law.
This petition is thus disposed of. {{FOOT NOTE}}
(1) 1974 P Cr. L J 300 (2) PLD 1963 Pesh. 175
(3) 1971 P Cr. L J 732 (4) PLD 1961 SC 426 {{FOOT NOTE}}