MUSHATAQ AHMAID vs PRESIDENT, SPECIAL MILITARY COURT No. 7, KARACHI
This matter arises from a petition for special leave to appeal filed against an interlocutory order of the High Court of Sind at Karachi, which declined to grant interim bail to the petitioner at the motion stage of a constitutional petition. The petitioner had been convicted by a Summary Military Court under Section 411 of the Pakistan Penal Code. The core legal question before the Supreme Court was whether interference was warranted with the High Court's refusal to grant interim bail before examining the record of a pending constitutional petition. The Supreme Court held that since the matter was still at the preliminary motion stage in the High Court and the legal and factual points raised required examination by that court first, the petition for special leave to appeal should not be entertained. The Supreme Court laid down the principle that appellate interference with interlocutory orders declining interim bail at the pre-admission motion stage is generally unwarranted when the primary constitutional petition remains pending adjudication before the High Court.
- Whether the Supreme Court will interfere with a High Court's refusal to grant interim bail at the motion stage of a constitutional petition?
- Should legal and factual contentions on the merits of a conviction be examined by the Supreme Court before the High Court has attended to them at a regular hearing?
- Section 411, Pakistan Penal Code 1860
ORDER
KARAM ELAHEE CHAUHAN, J.-The petitioner was convicted by a Summary Military Court on 11-7- 1978, for an offence under section 411, P. P. C. For dishonestly retaining the stolen property involved in this case and was awarded rigorous imprisonment for six months and a fine of Rs. 30,000 and in default of payment of fine, for a further rigorous imprisonment for three months. The petitioner filed a "constitution petition" in the High Court of Sind at Karachi bearing No. 1008 of 1978. The petition came up before a learned Single Judge of that Court and on the prayer of the learned counsel for the petitioner he sent for the record. The petitioner had applied for interim bail but his request' was not acceded to because the Court was of the view that the questions raised by the petitioner had yet to be examined with reference to the record and unless that was done the question of bail was premature. Against the aforesaid order dated 3-7-1978, the petitioner has come up in a petition for special leave to appeal to this Court.
2. It is to be pointed out that the case in the High Court is still at the motion stage and has not yet been admitted to a regular hearing. Learned counsel for the petitioner wanted to raise certain points on the-- merits of the case both on the legal as well as the factual plane but w are of the view, that as these points are yet to be attended to be the learned Judge of the High Court we should not go into the same an" should rather leave them to be first attended to by the High Court; particularly for bail, keeping also in view the short sentence involved in the case. The petition for these reasons is not entertained and is dismissed with the observations aforesaid.