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Petition for Special Leave to Appeal No. 184 of 1967, decided on 5th October 1967.

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 23rd June 1967, in Criminal Miscellaneous No. 1873 of 1967).

S. 497 (5)‑Bail‑Cancellation of bail bond upon accused's committal to Court of Sessions‑Not a rule of practice.

Khalid Saigol v. The State P L D 1962 S C 495 ref.

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--‑Commitment for murder‑Sessions Court cancelling bail without assigning any cogent reason in support of order- Setting aside of such order by High Court, held, based on judicial exercise of discretion‑Petition for leave to appeal dismissed- Constitution of Pakistan (1962), Art. 51 (3).

Riasat Ali Khan, Advocate Supreme Court instructed by Masud Akhar, Attorney for Petitioner.

Nemo for Respondent.

Date of hearing : 5th October 1967.

‑Special leave to appeal is sought against an order of a learned Single Judge of the High Court of West Pakistan whereby he has set aside an order of cancellation of bail by the Additional Sessions Judge, Lahore.

On 23‑7‑64 a case under sections 302/ 149 and 148, P. P. C., hereinafter referred to as the first case, was registered against the respondents Nos. 1‑7 at Police Station Mangtanwala for the murder of Mushtaq. A few days latter, i.e., on 3‑8‑64, a cross case under section 302/149/120‑B, P. P. C. was registered against Nazir Ahmad and his brother Ch. Nur Ahmad, Advocate, and three others at the said Police Station for the murder of Anwar. Police, however, did not submit any challan in the first case. Sub sequently, on a complaint by Nazir Ahmad, proceedings were initiated against the accused on the said charges and eventually they were committed to the Court of Sessions. On 10‑5‑65, the accused were admitted to bail by the Sessions Judge.

It may be mentioned that the Sub‑Divisional Magistrate. Nankana Sahib, who was holding inquiry in the cross case, was restrained by this Court from passing any final order. As the two cases were inter‑connected, the High Court on 7‑11‑66 stayed the trial of the first case. On 11‑5‑67, their bail was, however, cancelled by the Additional Sessions Judge. On their petition under section 439, Cr. P. C. the High Court set aside the order of the‑Additional Sessions Judge and restored that of the Sessions Judge by which he had admitted them to bail. The petitioner, Nazir Ahmad, seeks special leave to appeal against the above order.

The learned counsel attempted to argue that as the accused had been committed to the Court of Sessions on a charge of murder, the Additional Sessions Judge was justified in cancelling their bail.

There is, however, no such rule of practice that whenever are accused is committed to the Court of Sessions his bail bond must be cancelled. This Court while dealing with the question of discretion of the Court in bail matters in the case of Khalid Saigol v. The State (P L D 1962 S C 495) observed at page 426 as follows :‑‑

"We may state straightway that where a Court is called upon to exercise its judicial discretion, it will not be discharging its functions properly if it were to proceed upon any a priori assumption that in all cases where an offence punishable with death or transportation for life is alleged, bail must as a matter of course be refused, not can there be any rule of practice upon the basis of which such a discretion can be judicially exercised for, rarely will there be two cases in which the facts are alike."

The Court then observed :‑

"The nature of the accusation and the heinousness of the crime alleged are, no doubt, very relevant circumstances to be taken into consideration, but by themselves they are not the only circumstances, as we have endeavoured to point out, even under sections 496 and 497. What further consideration should be taken into account by the Court in deciding this question must necessarily depend upon the facts and circumstances of each case, and no hard and fast rule can be laid down."

In this case, the alleged crime was committed in 1964. The trial has been stayed by the High Court. The accused were all along on bail, The Additional Sessions Judge while cancelling bail in 1966 did not give any cogent reasons in support of his orders. In these circumstances, it cannot be said that the learned Single Judge of the High Court in setting aside his order did not exercise his discretion judicially. We, therefore, see no ground for interference and dismiss this petition.

Petition dismissed.

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