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Petition for Special Leave to Appeal No. 204 of 1967, decided on 6th October 1967.
(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 17th July 1967, in Criminal Miscellaneous No. 2955 of 1967).
S. 498‑Bail before arrest ‑Case cannot be decided on merits on bail application.
S. 498‑Bail before arrest‑Leave to appeal sought against order of High Court refusing bail ‑No ground for interference shown‑Petitioner advised to move trial Court in matter‑Petition dismissed‑Constitution of Pakistan (1962), Art. 58 (3).
S. Aftab Hussain, Senior Advocate Supreme Court (M. Bashir Ahmad, Advocate Supreme Court with him) instructed by Muhammad Mehdi Anwar, Attorney for Petitioner.
Nemo for the State.
Date of hearing: 6th October 1967.
This is a petition for special leave to appeal from an order of a learned Single Judge of the High Court of West Pakistan refusing to enlarge the petitioner on bail under section 498 of the Code of Criminal Procedure.
It appears that the petitioner has been charged along with several other persons under sections 302/149, 307/149 and 148 of the Pakistan Penal Code. He was enlarged on bail by the learned Sessions Judge of Lyallpur on his application that he had to appear in the B. Sc. examination which was to be held from the 23rd of May 1967, to the 15th of July 1967. He had to surrender on the 17th of July 1967, but instead of doing so he moved the High Court for bail before arrest on 12th. July 1967, on the ground that he was not the person who was an accused in the case and that it was unlikely that he, who was a student studying in the B. Sc. class and about to take his examination, would be so foolish as to get himself involved in a case of this nature.
The High Court refused to go into this question, particularly, since some prosecution evidence had already been taken and the petitioner named as one of those who participated in the occurrence.
The High Court also was not impressed by the argument that the petitioner would like to read for his M. Sc. in the event of his passing the B. Sc. examination.
The petitioner now seeks special leave to appeal and on his behalf again the same arguments have been sought to be advanced. We are, however, of the opinion that it was not for the High Court at this stage to determine as to whether the petitioner was in fact the person named as an accused in the case merely on the basis of a slight error in the first information report with regard to the chak number of the residence of the accused named therein, although other particulars correctly tallied. This is a question which will be gone into, as has rightly been held in the High Court, by the trial Court. The case cannot be decided on merits on a bail application.
Learned counsel now contends that since the petitioner has failed in his B. Sc. examination and will have to appear in the supplementary examination he should be enlarged on bail this is so he should move the trail Court which, we have no reason to doubt, will consider the application sympathetically as it did when it ordered him to be enlarged on bail to take his regular B. Sc. examination. There is no ground for interference in this matter. This petition is, accordingly, dismissed.
Petition dismissed.
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