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Criminal Miscellaneous Application No. 79 of 1973, decided on 16th February 1973.

--‑‑‑Ss. 117(3), 118 & 122 read with S. 406‑A‑Security proceedings Security, verification of‑Contention that enquiry under S. 122 in regard to sufficiency could not be ordered for purposes of S. 117(3) and could only be ordered after final order under S. 118 was made Contention, held, not tenable and Magistrate could direct enquiry to be made as to sufficiency of surety‑Remedy of petitioner, if surety not accepted, would lie by way of appeal under S. 406‑A, Criminal Procedure Code, 1898.

Makhdoom Shariff for Petitioner.

Mir Muhammad Shaikh for the State.

According to the learned counsel for the State the petitioner has suppressed the relevant fact that an order under section 117(3), Cr. P. C. was indeed passed by the learned Assistant Commissioner and S. D. M., Harbour, Karachi, on the day the petitioner was brought before him pursuant to the bailable warrant issued against him and service of order under section 112, Cr. P. C. This happened on the 2nd February 1973, on which day the learned Magistrate passed the order under section 117(3), Cr. P. C. also. The learned counsel for the State further pointed out that the affidavit of the surety offered by the petitioner does not even indicate the name and parentage of the surety, and in spite of this the learned S. D. M. directed enquiry as to the capacity of the surety in terms of order under section 112, Cr. P. C.

Learned counsel for the petitioner admitted before me today that an order under section 117 (3) was indeed passed on 2nd February 1973 he however, stated that his challenge in this Revision Application is against the order passed by the learned Magistrate directing enquiry under section 122, Cr. P. C. in regard to the surety which order, according to him, is to be passed after the final order under section It 8, Cr. P. C. is made.

2. I am not impressed by this argument as it was open to the learned Magistrate to direct, on the nature of affidavit of the surety filed before him, that an enquiry be made as to the sufficiency of the surety in terms of the order passed by him under section 117(3) of the Code of Criminal Procedure. The remedy of the petitioner would be to prefer an appeal under section 406‑A Code of Criminal Procedure, if the surety is not accepted, before he could pursue further remedies in this connection. For these reasons, Criminal Miscellaneous Application No. 101 of 1973 is dismissed.

Application dismissed.

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