SHAH MUHAMMAD vs MUHAMMAD YOUSUF AND ANOTHER
This matter arose from a petition for leave to appeal against an order of the High Court confirming post-arrest bail granted to respondent No. 1 in a case registered under Sections 363, 366, and 376 of the Pakistan Penal Code 1860, involving the alleged abduction and rape of a minor girl. Bail had initially been allowed on educational grounds to enable the respondent to sit for an examination and was later confirmed by the High Court, which rejected the State's contention regarding the likelihood of tampering with prosecution evidence. The petitioner's earlier application for cancellation of interim bail had been dismissed for non-prosecution. The Supreme Court considered whether to interfere with the High Court's order confirming bail. The Supreme Court dismissed the petition, refusing to interfere with the impugned order at that stage. The Court laid down the principle that where an application for cancellation of bail is dismissed for non-prosecution, the complainant/petitioner retains the right to move a fresh application for cancellation of bail before the appropriate forum.
- Does the dismissal of a bail cancellation application for non-prosecution bar the petitioner from filing a fresh application for cancellation of bail?
- Will the Supreme Court interfere with an order confirming bail where the remedy of moving a fresh cancellation application remains available to the complainant?
- Section 363, Pakistan Penal Code 1860
- Section 366, Pakistan Penal Code 1860
- Section 376, Pakistan Penal Code 1860
ORDER
1. WAHIDUDDIN AHMAD, J.-A case under section 363/366/376, P. P. C. Has been registered at Police Station, Sadar, Tehsil and District Sahiwal, on the 15th May 1969, against respondent No. 1. The allegation against. Him is that he trespassed into the house of the petitioner on the night between 14th May 1969 and 15th May 1969 and forcibly lifted Mst. Razia minor daughter of the petitioner aged about 13/14 years and took her upstairs and thereafter committed rape upon her on the roof of the mosque adjoining the house of the petitioner.
2. Respondent No. 1 moved an application for bail which was dismissed by Cheema, J. But permission was granted to him to move another fresh petition when the commencement of the Intermediate Examination of Respondent No.1 draws near. Respondent No. 1, thereupon made a second application and he was granted bail by Shaukat Ali J. On the 4 December 1969, so that he may appear in his intermediate Examination held in December 1969, for appearing in the compartmental examination in Islamic studies and economics. His bail application was confirmed by Mushtaq Hussaain Munir J. On the 10 February 1970. The learned single judge repelled the contention raised on behalf of the state that respondent No. 1 is tampering with the evidence of the prosecution. In this connection, it was observed that only the police officer or the doctor besides two sisters of the prosecution are to be examined and it was difficult to understand that respondent would threaten these persons.
3. Petitioner also moved an application for cancellation of interim bail but as he was not present it was dismissed for non---prosecution.
4. Kh. Shaukat Ali, learned counsel for the petitioner, has urge that bail has been granted to respondent No. 1 on illegal grounds and that it is a fit case in which his bail should be cancelled. It isth th unnecessary to go into these questions because the petitioner has got a right to move another application for the cancellation of the bail of respondent No. 1. It is open to him to move another such application if he is so advised. At this stage there is no ground to interfere with the impugned order. The petition is dismissed.