DILSHAD BIBI vs MUHAMMAD YUNAS AND Other
This matter concerns a petition for leave to appeal against the orders of the Peshawar High Court, which dismissed the petitioner's applications for the cancellation of bail granted to the respondents in a case involving charges under section 376 of the Pakistan Penal Code 1860. The core legal question was whether the High Court exercised its discretion perversely or arbitrarily in granting bail to the accused, particularly in light of identification parade evidence and the F.I.R. The Supreme Court held that the petition was without merit and dismissed it. The Court reasoned that the validity of the challenged orders depended entirely on the propriety of the initial High Court order granting bail, which had not been filed by the petitioner. Consequently, the petitioner failed to demonstrate that the High Court had exercised its discretion perversely or arbitrarily under section 497 of the Code of Criminal Procedure 1898. The key principle laid down is that the burden lies on the petitioner to provide the relevant orders and demonstrate that the lower court's discretion was exercised arbitrarily or perversely to warrant interference in bail matters.
- Does the failure to provide the initial bail order in a petition for cancellation of bail preclude the appellate court from reviewing the exercise of discretion?
- Is the identification of an accused in a parade the sole factor relevant to the exercise of judicial discretion under section 497 of the Code of Criminal Procedure 1898?
- What must a petitioner demonstrate to successfully challenge the grant of bail by a High Court?
- Section 376, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
ORDER
1. DORAB PATEL, J.-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.
2. 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.
3. The petition is, therefore, without merit and is dismissed.