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Criminal Petitions Nos. 418 and 425 of 1978, decided on 7th December, 1978.
(On appeal from the judgment and order dated 13‑9‑78 of the Lahore High Court in Criminal Appeal No. 777/78 and Crl. Misc. No. 1 of 1978).
---Art. 185(3)‑Bail‑Grant or refusal of bail during pendency of criminal appeal in High Court‑Primarily in discretion of High Court Supreme Court, held, would not ordinarily interfere with exercise of High Court's discretion unless discretion shown exercised in perverse or of capricious manner‑Criminal Procedure Code (V of 1898), S. 426.
-----S. 498‑Bail‑Some money by way of illegal gratification passed on to petitioners while sitting together in a cafeteria‑Whether or not petitioner aware of money being by way of illegal gratification and whether or not petitioners happened to be present at cafe by chance or pursuant to pre‑arranged plan‑A matter for final adjudication High Court, in circumstances, held, within its right in not being prepared to appraise evidence for grant of interim bail during pendency of appeal.‑[Appeal (criminal)].
S. M. Rashid, Advocate Supreme Court for Petitioner (in Criminal Petition No. 418 of 1978).
Sardar Muhammad Latif Khan Khosa, Advocate Supreme Court instructed by Iqbal Ahmad Qureshi, Advocate‑on‑Record for Petitioner (in Petition No. 425 of 1978).
Asif Jan Jan, Assistant Advocate‑General (Punjab) with Sh. Ijaz Ali, Advocate‑on‑Record for the State (in both the Petitions).
Date of hearing: 7th December, 1978.
‑This order will dispose of Criminal Petitions for leave. to Appeal bearing Nos. 418 and 425 of 1978 respectively.
The .two petitioners have been convicted by a learned Special Judge, Anti‑Corruption, and each of them sentenced to undergo rigorous imprison ment for two years and also to pay a fine in the sum of Rs. 1,400 and in default of payment to undergo further rigorous imprisonment for nine months. They have filed appeals in the Lahore High Court, which are still pending adjudication. They applied for bail during the pendency of their appeals, but a learned Judge has declined their request on the ground that the contentions raised by them would require appraisal of evidence, which he was not prepared to undertake for the purpose of granting interim bail.
It is submitted on behalf of petitioner Abdul Haq (in Criminal Petition No. 418/78) that he did not play any actual part in the transaction and that his only fault was that he carried the other accused Amanat Ali (petitioner in Petition No: 425/78) on his bicycle to the place where the alleged illegal gratification was said to have been passed on to Amanat Ali for the purpose of being handed over to an Assistant Sub‑Inspector.
On behalf of Amanat Ali, the contention raised is that he just happened to be present at a cafeteria alongwith his co‑accused Abdul Haq when the complainant contacted him and paid him the tainted money for being passed on to his superior. Both the learned counsel submit that in these circumstances the petitioners could not be burdened with any mens rea and; therefore, the High Court was in error in refusing bail during the pendency of their appeals.
The grant or refusal of bail during the pendency of a criminal appeals in the High Court is primarily in the discretion of the High Court, and this Court would not ordinarily interfere with the exercise of that discretion, unless it is shown that the discretion has been exercised in a perverse or capricious manner. Such is not the case here. It is clear that some money by way of illegal gratification was passed on to the petitioners when they were sitting together in a cafeteria, and it is a matter for final adjudication as to whether they were aware that it was by way of illegal gratification or not, and also whether they happened to be present at the cafe by chance or in pursuance of a pre‑arranged plan. In the circumstances the learned Judge in the High Court was within his rights in saying that he was not prepared to appraise the evidence for the grant of interim bail during the pendency of the appeals.
On this view of the matter we would dismiss both these petitions, but we would like to observe that the appeals should be heard early as the sentences involved, nomely, rigorous imprisonment for two years in each case, are comparatively short.
Petition dismissed.
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