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Criminal Petition for Special Leave to Appeal No. 91-R of 1979, decided on 20th February, 1980.
(On appeal from the judgment and order of the Lahore High Court, Lahore, dated 27-10-1979 passed in Criminal Miscellaneous No. 3612-B/1979).
-- Art. 185 and Criminal Procedure Code (V of 1898), S. 497-Bail Supreme Court being a Constitutional Court declines to interfere with order granting bail-Bail granted by High Court-Supreme Court expected not to go into matters concerning grant of bail unless such order could not have been possibly passed.
Ch. Muhammad Abdul Wahid, Advocate and Ch. Akhtar Ali, Advocate -on-Record for Petitioners.
Sh. Riaz Ahmad, Assistant Advocate-General (Punjab) for the State.
Date of hearing: 20th February, 1980.
-The two petitioners herein are accused of offences under sections 1-18, 302 and 307/149, P. P. C. The only part attributed to them in the F. I. R. however, was that they had accompanied the other three co-accused (not petitioners in this case) to the place of occurrence in which one Muhammad Aslam was killed, and that they had fired in the air. Upon these allegations, the petitioners were granted pre-arrest bail by the learned Additional Sessions Judge, Sargodha, but on an application filed against the said order of the Additional Sessions Judge, the same was recalled by a learned Single Judge, vide his order, dated 28-3-1979.
After a while, the petitioners again moved the High Court for bail but the same was dismissed, as the view taken by the High Court was that "this aspect of the case had already been considered in Cr. Misc. No. 586-B of 1979. It was observed therein that the allegations in the F. I. R. prima facie show that the respondents came to the brick-kiln after having armed themselves with fire arms and the injured eye-witnesses had fully implicated them. Even now the position remains the same.
When this case came up for hearing initially on 11-2-1980, it was directed that notice should go to the Assistant Advocate-General, Punjab. In response to the said notice, Sheikh Riaz Ahmad, the learned Assistant Advocate-General is present and has opposed this petition.
The learned counsel for the petitioners, however, contended that the only allegation made against the petitioners in the F. I. R. was of ineffective firing, and so the High Court ought not to have refused them bail. We are afraid, there is no force in this contention. As held by this Court in Sultan Khan v. Amir Khan and another (PLD 1977 S C 642), "since the Supreme Court is primarily a Constitu tional Court and not expected to go into matters concerning grant of bail by the High Court, we do not feel called upon to interfere with the impugned order. The petition for leave to appeal is dismissed." In that case, which was evidently an extreme case, it was observed by this Court "We are constrained to observe that on the facts alleged in the F. I. R. and the evidence to which the eye-witnesses are going to depose, it was not a fit case for bail. The reasons which have appealed to the learned Single Judge indicate that if any accused has merely instigated the commission of murder and fired at the victim ineffectively, he is likely to be acquitted of the offence under section 302. Such a statement of law would be clearly against the provisions of the Code".
It would thus be seer, that while disapproving the bail granting order of the High Court, this Court nevertheless declined to interfere with the same on the ground that it was a Constitutional Court and consequently not expected to go into matters concerning grant of bail by the High Court. In other words, unless it is shown that an order passed by the High Court in a bail matter could not have been possibly passed, this Court would decline to interfere with the same.
By examining the impugned order in this case, we are satisfied that it does not qualify the said test. This petition, therefore, fails and is dismissed.
Petition dismissed.
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