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Criminal Petition for Special Leave to Appeal No. 37‑P of 1978, decided on 13th July, 1978.

‑‑ Art. 185 (3)‑Leave to appeal‑Validity of orders challenged before Supreme Court entirely turning on propriety and correctness of High Court's order granting bail to respondents and petitioner's point raised before Supreme Court being one of circumstances relevant to question of grant of bail‑Order of High Court challenged before Supreme Court also not filed hence question of exercise of its discretion perversely or arbitrarily by High Court in granting bail, not determin able‑Leave to appeal declined.‑

Jan Muhammad Khan, Advocate Supreme Court and Nur Ahmad Khan, Advocate‑on‑Record (absent) for Petitioner.

M. Bilal, Advocate Supreme Court and Akhtar Ali, Advocate‑on‑Record for Respondents Nos. 1 and 2.

Date of hearing : 13th July, 1978.

The first three respondents are being tried under section 376, P. P. C. on the complaint of the petitioner, who was the victim of the occurrence. According to learned counsel, the occurrence took place at 2.00 p.m. on 6‑4‑1977 and the F. I. R. was lodged "on the same day at 2.30 hours" according to para. 1 of the petition for leave. The second respondent was named in the F. I. R., but the petitioner stated that she would be able to identify the other two persons, who had raped her and it is claimed that the other two persons were identified by her on identifica tion parade held on 12-4‑1977 and 27‑4‑1977. The respondents were, there fore, arrested in due course, and they applied for bail in the Sessions Court. As the application for bail of the first two respondents was rejected by the Sessions Court, they filed appeal against this order in the Peshawar High Court, and bail was granted by a learned Judge of the Peshawar High Court by his order dated 9‑8‑1977. We are informed by learned counsel that the third respondent was able to obtain bail from the Sessions Court, because of this order of 9‑8‑1977 and as the petitioner was aggrieved by the enlargement of these respondents on bail, she filed an application in the Peshawar High Court for the cancellation of the bail, granted to the third respondent by the Sessions Court. She also filed an application in the High Court for the cancellation of the bail‑granted to the first two respondents by the High Court on 9‑8‑1977. The application for the cancellation of bail granted by the High Court was dismissed by a learned Judge of the High Court on 28‑1‑1‑978, whilst the application for the cancellation of the bail granted to the third respondent by the Sessions Court was dismissed by the Acting Chief Justice of the Peshawar High Court on 14‑3‑1978. The petitioner has, therefore, filed these petitions for leave against the High Court's order of 28‑1‑1978 and 14‑3‑1978

In dismissing the petitioner's application for the cancellation of bail granted to the third respondent by the Sessions Court, the learned Acting Chief Justice has referred to the delay in the F. I. R. and then observed that the other two respondents had been granted bail by the High Court on 9‑8‑1977. It would thus appear from this order that the learned Acting Chief Justice dismissed the petitioner's application, because of the grounds given in the High Court's order of 9‑8‑1977 for enlarging the first two respondents on bail. Similarly, the application for cancellation of the bail granted by the High Court to the first two respondents was dismissed, because no "fresh ground of any substance has been made out so as to warrant the cancellation of bail." Clearly, therefore, the validity of the two orders which are challenged before us turns entirely on the propriety and correctness of the High Court's order of 9‑8‑1977 granting bail to the first two respondents. As that order has not been filed, we are enable to understand how learned counsel can press this petition. Be this as it may, he relied in support of this petition for leave on the identification of the second and third respondent by the petitioner at the identification parades, on the F. I. R. and on the statement of P. W. Said Ghawas in his statement. As we do not wish t prejudge the case of the parties, would only observe that this statement together with the F. I. R. was a circumstance relevant to the question of the grant of bail. To say the least, this was not the only circumstance relevant to the exercise of the Court's discretion under section 497, Cr. P. C., therefore, as the High Court's order of 9‑8‑1977 has been withheld, learned counsel is unable to show that the High Court had exercised its discretion perversely o arbitrarily in granting bail.

The petition is, therefore, without merit and is dismissed.

Petition dismissed.

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