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Petitions for Special Leave to Appeals Nos. 19and27 of 1969, decided on 11th February 1969.

(On appeal from the judgment and order of the High Court of West Pakistan, Bahawalpur Circuit/Lahore, dated the 17th December 1968/IOth January 1969, in Criminal Miscellaneous No. 505 of 1968/BWP and Criminal Miscellaneous No. 109 of 1969, respectively).

Art. 58(3) ‑ Petition for special leave to appeal Different from appeal in ordinary course‑Cannot be granted as matter of routine‑Grievance that High Court while exercising discretion in matter of bail petition exercised same in manner with which it is possible to disagree Not special reason for grant of leave under Art. 58 (3)‑ Criminal Procedure Code (V of 1898), S. 497.

An appeal by special leave is not an appeal as of right nor is it an appeal in the ordinary course; therefore, such leave cannot be granted as a matter of routine nor can petitions for special leave to appeal be heard as if they were appeals them selves. The difference is that when ordinary appeals are heard they are, subject to preliminary technical objections, if any, firstly examined on merits for judging their fitness for calling upon the respondent to defend; and if such merit is prima facie found to exist in them, then they are heard again after notice to the opposite-party. Since these petitions are not appeals, the petitioners had to satisfy the Court that there was some unusual or exceptional reason for granting leave to them to make submissions before the Court on the merits of their cases. They could not expect these petitions to be heard like the hearing of an appeal in limine. Whatever unusual or exceptional reason may conceivably justify grant of leave under Article 58(3) of the Constitution in bail matters, it is to be observed that such reasons cannot include a grievance that the High Court has, in the proper exercise of its jurisdiction, appreciated and assessed evidence or exercised discretion in a manner with which it is easily possible to disagree. Such a grievance cannot be said to be a special reason attracting the application of Article 58 (3) of the Constitution which is meant to secure the Supreme Court against being taken to be an ordinary Court of appeal.

Ghulam Mujuddid Mirza, Senior Advocate Supreme Court (Nusrat Ullah Mian, Advocate Supreme Court with him), instructed by Abdul Karim, Attorney for Petitioners (in both Petitions).

Nemo for the State.

Date of hearing: 11th February 1969.

The above‑mentioned two petitions were heard together by us. Learned counsel for the petitioners discussed the evidence and the circumstances of the case and argued that the petitioners deserved to be let off on bail.

The facts are that three cases were registered and were pending in the Court of the Additional District Magistrate, Rahimyar Khan. The accused in one case were complainants in another case. A good part of the prosecution evidence had been recorded in the three cases when the two petitioners, who are co‑accused, submitted these petitions for leave to appeal to this Court against the orders of the High Court, The bail application of Allah Diwaya petitioners has been rejected by the High Court because :‑‑

"The evidence recorded in the High Court, however, shows, that Allah Diwaya took a lathi from his son and gave a blow to the deceased. In view of this evidence, I am not inclined to bail him out,"

and the bail application of Muhammad Nawaz petitioner, has been rejected by that Court, because, irrespective of the nature of the injury inflicted by him

.. ..the question of common object or common intention shall be dealt with by the trial Court at the proper time. Since the petitioner played a part in the transaction which resulted in the death of the deceased, I am not inclined to grant bail to him."

The petitioners have moved several times the trying Magistrate as well as the High Court but have not succeeded in their bail applications. Now they task this Court to interfere with the above‑mentioned two orders of the High Court by granting special leave to appeal against them under Article 58(3) of the Constitution. The grounds which their counsel pressed were that the High Court has not correctly appreciated and assessed the evidence and that discretion has not been exercised properly.

We may observe there that an appeal by special leave is not an appeal as of right nor is it an appeal in the ordinary course; therefore, such leave cannot be granted as a matter of routine nor can petitions for special leave to appeal be heard as if they were appeals themselves. The difference is that when ordinary appeals are heard they are subject to preliminary technical objections, if any, firstly examined on merits for judging their fitness for calling upon the respondent to defend; and if such merit is prima facie found to exist in them, then they are heard again after notice to the opposite‑party. Since these petitions are not appeals, the petitioners had to satisfy this Court that there was some unusual or exceptional reason for granting leave to them to make submissions before this Court on the merits of their cases. They could not expect these petitions to be heard like the hearing of an appeal in limine.

Whatever unusual or exceptional reason may conceivably justify grant of leave under Article 58(3) of the Constitution in bail matters, we can observe that such reasons cannot include, a grievance that the High Court has, in the proper exercise of its jurisdiction, appreciated and assessed evidence or exercised discretion in a manner with which it is easily possible to disagree. Such a grievance cannot be said to be a special reason attracting the application of Article 58(3) of the Constitution which is meat to secure this Court against being taken t be an ordinary Court of appeal.

There are no special circumstances and no special reasons in these cases to justify that leave to appeal be granted. Both the petitioner are dismissed.

K. B. A.

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