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Petition for Special Leave to Appeal No. 84 of 1969, decided on 15th April 1969.

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 4th February 1969 in Criminal Miscellaneous Nos. 1 and 2 of 1968/Criminal Appeal No. 746 of 1968).

S. 426‑Bail pending appeal‑Person convicted of bailable offence‑Cannot claim bail as of right pending appeal.

There can be no such general rule that in every case where a person is convicted of a bailable offence he must be enlarged on bail during the pendency of the appeal. Section 426, Cr. P. C. clearly gives a discretion to the High Court to grant or refuse bail although this discretion must, like all other discretions, be exercised upon sound judicial principles.

The State v. Shah Sawar 1969 S C M R 151 and Khalld Saigol v. The State P L D 1962 S C 492 ref.

Hatta and ‑others v. The State P L D 1967 Lah. 1302 held not correctly decided.

M. A. Buttar, Advocate Supreme Court instructed by Iqbal Ahmad Qureshi, Attorney for Petitioners.

Nemo for the State.

Nasim Hasan Sheikh, Advocate Supreme Court instructed by M. B. Khizar Tamimi, Senior Attorney for Respondent No. 2.

Date of hearing : 15th April 1969.

The petitioners were tried and convicted under sections 325/34, 324/35 and 323/34 of the Pakistan Penal Code and sentenced to rigorous imprisonment for two years, one year and 6 months, respectively, on each count. They filed an appeal in the High Court of West Pakistan which was admitted for regular hearing on the 24th October 1966, but bail was refused.

In an appeal from a counter case, another bail application was filed by the accused in that case. That appeal was also admitted for hearing. On coming to know of this the petitioners also submitted another application for bail under section 426 of the Criminal Procedure Code. Both the applications were heard together and were dismissed on the 4th February 1969.

The petitioners now seek special leave to appeal and it is contended on their behalf that since the petitioners were only convicted for bailable offences they were entitled as a matter of right to the bail prayed for on their behalf during the pendency of the appeal. In support of this contention reliance is sought to be placed on the judgment of a learned Single Judge of the same High Court in the case of Hatta and others v. The State (P L D 1967 Lah. 1302).

The correctness of this judgment has, however, been doubted by this Court in the case of The State v. Shah Sawar (1969 S C M R 151).

There can be no such general rule that in every case where a person is convicted of a bailable offence he must be enlarged on bail during the pendency of the appeal. Section 426, Cr. P. C. clearly gives a discretion to the High Court to grant or refuse bail although this discretion must, like all other discretions, be exercised upon sound judicial principles, as pointed out by this Court in the case of Khalid Salgol v. The State (P L D 1962 S C 492).

What these principles are, have been adequately indicated in that case and it is not necessary to repeat them here, but there appears to be no warrant for the contention that the discretion of the Court under sections 426 and 427, Cr. P. C. is taken away merely by the fact that a person has been convicted of a bailable offence. The only difference this can possibly make is that the Court in exercising its discretion will deal perhaps more leniently with a person who has only been convicted of a bailable offence.

The next contention is that even according to this principle the High Court should have in the proper exercise of its discretion taken into consideration the fact that very short sentences were given to the petitioners and that they had already served out 6 months of their respective sentences. If the appeal is not heard soon, they will have practically served out their sentences and the appeal will become infructuous.

This was, no doubt, a relevant circumstance but it appears that the High Court had, taking this fact into consideration, directed that the appeal should be put up for hearing within two months. These two months have, it is said, now expired but the appeal has not yet been posted for hearing.

We hope that the High Court will see to it that its order is carried out and the appeal is posted for hearing in the near future if that has already not been done. In the event of this not being possible, then we have no reason to doubt that the High Court will consider more sympathetically any fresh application for bail made on behalf of the petitioners. .

This petition is, however, dismissed with those observations.

Leave refused.

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