' The three applicants Sajjad Mir, Mushtaq Ahmed and Shaikh Muhammad Iqbal were proceeded against in the Court of the Sub-Divisional Magistrate, Civil Lines, Karachi, under section 107/117, Cr. P.
C. The report was submitted on 4-9-1973 and on 8-9-1973, the Sub-Divisional Magistrate took cognizance of the case by expression of satisfaction in regard to breach of peace and ordered issuance of bailable warrants against each one of the three applicants in the sum of Rs, 5,000. It appears that the warrants were executed and the applicants were present in Court on 13-9-1973 when the Station House Officer of Civil Lines Police Station, moved an application complaining that the applicants had abused their liberty by indulging in activities detrimental to the public peace. A prayer was made for their arrest and orders in the nature of order under section 117(3), Cr. P. C. The Sub-Divisional Magistrate without recording any evidence passed an order on the same day stating as follows :- "I have gone through the police report and have made enquiries from the Police Officer and so I am satisfied with it.
' I, therefore, now direct that all the above persons present in the Court shall execute a bond with two sureties in the amount of Rs, 2,500 (Two thousand five hundred) each for keeping peace in the area until the conclusion of the enquiry.
' They are to be detained in custody until such bond is executed or in default of execution until the enquiry is completed."
2, Pursuant to the aforesaid order dated 13-9-1973 each one of the three applicants produced two sureties in the sum of Rs, 2,500. The sureties were found to be solvent to the extent of Rs, 2,500 but were rejected on the ground that they are "advance in age, saintly and noble" but since the applicants were young persons, the sureties would not be able to control their movements. In the result the three applicants were remanded to custody.
3. The applicants thereafter, filed an appeal under section 406-A, Cr. P. C. Before the City and Additional District Magistrate, Karachi who agreed with the reasons advanced by the Sub- Divisional Magistrate for the rejection of the sureties and dismissed the appeal. The applicants then filed the present revision application in this Court which was admitted by my learned brother Agha All Hyder, J. Who also granted bail to each one of the applicants in the sum of Rs, 5,000. It is stated by Mr. Saleem Haqqani, the learned Advocate for the applicants that security has been furnished and the applicants are now on bail granted by this Court.
4. Mr. Saleem Haqqani has attacked the order of the Sub-Divisional Magistrate whereby the sureties produced by the applicants were rejected. The learned advocate's contention is that there was no order in the nature of order under section 117 (3), Cr. P. C. Requiring the applicants to produce sureties possessing any other qualifications besides solvency in the sum of Rs, 5,000 each and that in this case the grievance of the applicants is that the sureties demanded by the Sub- Divisional Magistrate were not to be of such class as may be able to control the activities of the applicants. On such view of the matter Mr. Saleem Haqqani has contended that the grounds advanced by the Sub-Divisional Magistrate for rejecting the sureties produced by the applicants were untenable.
5. It would appear that no order under section 117 (3), Cr. P. C. Has been passed. The learned State counsel has however, stated that the order dated 13-9-1973 could be considered to be an order under section 117 (3), Cr. P. C. Even if I agree with the submission of the learned State Counsel I find that this order has been passed without holding any enquiry or recording any evidence. It is needless to state that an order under section 117(3), Cr. P. C. Is not an order of a routine nature but it is an order which is judicial in character and has to be passed on the basis of such evidence which would require immediate and emergent steps to prevent the persons proceeded against from acting in a manner prejudicial to public peace. No evidence has been recorded nor has the Magistrate recorded satisfaction that emergent orders under section 117 (3), Cr. P. C. Were necessary. Mr. Saleem Haqqani has invited lily attention to the case of 8achal Samaho Nohriyo and others v. Emperor (I) and The State v. Hyder (2) for substantiating the contention that orders under section 117 (3), Cr. P. C. Cannot be passed on police reports but have to be based on the evidence produced by the Investigating Agency before the Magistrate. 'No evidence has been produced in this case and for such reason the order suffers from legal infirmity and ilezds to be quashed.
Additionally it appears that even if the order dated 13-9-1973 is considered to be one under section 117 (3), Cr. P. C. The said order does not impose any qualifications on the sureties apart from the qualifications of solvency. In such view of the matter it was not open to the Sub-Divisional Magistrate to reject the sureties produced by the applicants on B grounds other than the solvency of the sureties. Indeed the Magistrate has expressed in his order dated 15-9.1973 that the sureties were financially sound. In such view of the matter the rest of the order was in derogation of the order dated 13-9-1973 and cannot be sustained. In the result I. Quash the order passed by vie Sub- Divisional Magistrate on 15-9-1973. Mr. Haqqani has, however, prayed that the main proceedings under section 107, Cr. P. C. May also be quashed. I do not think any grounds have been made out for grant of such relief. The main case is pending before the Sub-Divisional Magistrate who will proceed to hold the main enquiry under section 107, Cr. P. C. Against the applicants.
6. Application allowed to the extent indicated in the last para. {{FOOT NOTE}}
(1) AIR 1942 Sind 77 (2) PLD 1963 Kar. 673 {{FOOT NOTE}}