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1971 S C M R 155
Present: Hamoodur Rahman, C. J, Muhammad Yaqub Ali and Salahuddin Ahmed, JJ
ABDUL GHAFOOR‑Petitioner
versus
THE STATE‑Respondent
Petition for Special Leave to Appeal No. 9 of 1971, decided on 22nd January 1971.
(On appeal from the judgment and order of the High Court state of Lahore, Bahawalpur Circuit, dated the 21st December 1970, in Criminal Appeal No. 75 of 1970/BWP).
Criminal Procedure Code (V of 1898),
S. 426‑Bail, grant of, pending appeal‑Discretion of High Court‑Supreme Court will not interfere unless discretion exercised arbitrarily.
Khalilur Rehman, Advocate‑on‑Record for Petitioner.
Nemo for the State.
Date of hearing : 22nd January 1971.
SALAHUDDIN AHMED, J.‑
This petition for special leave to appeal is from the order of a learned Single Judge of the Lahore High Court refusing to grant bail to the petitioner, who has been convicted under section 325 of the Pakistan Penal Code and sentenced to suffer rigorous imprisonment for six years as well as to pay a fine of Rs. 1,400, by a Section 30, Cr. P. C. Magistrate. The petitioner's co‑accused Abdus Sattar has been convicted and sentenced under section 323 of the Pakistan Penal Code to rigorous imprisonment for one year.
The Lahore High Court, Bahawalpur Circuit, admitted the appeal of the two convicts and while it granted bail to Abdus Sattar, it refused bail to the petitioner.
On behalf of the petitioner it has been contended that the High Court should not have refused bail to the petitioner merely because he was sentenced to a long term of imprisonment parti cularly when the appeal was not likely to be heard for a long time. This contention has no force. Unless the petitioner succeeds in showing that the High Court, which has a discretion in the matter, has used its discretion on principles which cannot be supported in law, this Court will not interfere with the High Court's order. The petitioner has been convicted of a grave offence and is not entitled as of right to be released on bail. This is not the stage when the High Court was required to consider whether any prima facie case for conviction has been made out against the petitioner, for, he is already a convict. We do not think that the High Court has used its discretion improperly. It is needless to mention that we cannot consider the merit of the case when the appeal before the High Court is still pending hearing.
Having regard to the facts and circumstances of the case, however, the High Court may consider whether it is desirable to hear the appeal at the next circuit. The petition is dismissed.
Leave refused.
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