Mahr GHULAM NABI vs MUHAMMAD SHAFIQ AND Another
This matter arises from a petition for leave to appeal against the dismissal of an application for the cancellation of bail previously granted to respondent No. 1, who was accused in a murder case under Section 302 of the Pakistan Penal Code. The bail was initially granted by the High Court on the ground of inordinate delay in the commencement of the trial. Subsequently, an application for cancellation of bail was filed, relying on a Supreme Court precedent that mere delay was not a ground for bail, but the High Court dismissed it, holding that an order granting bail could not be recalled without cogent reasons such as misrepresentation or abuse of concession. The Supreme Court held that the impugned order was correct when passed and that subsequent events, such as a newly registered case under Section 307 of the Pakistan Penal Code, cannot invalidate a past correct order, though the petitioner could seek cancellation of bail in the appropriate court based on those subsequent events. The petition for leave to appeal was accordingly dismissed.
- Whether inordinate delay in the commencement of a trial can form the basis for granting bail in a murder case?
- Can an order granting bail be recalled in the absence of cogent reasons such as misrepresentation or suppression of facts?
- Whether subsequent events occurring after the passing of an order can be made the basis for obtaining the reversal of that order on appeal?
- Section 302, Pakistan Penal Code
- Section 307, Pakistan Penal Code
ORDER
1. NASIM HASAN SHAH, J.-A case under section 302, P. P. C. Was registered by the petitioner herein, against respondent No. 1 who is a young boy of 16 1/2 years of age, at Police Station, Saddar, Gujrat, on 7-6-1976 for causing the death of his son Muhammad Younis. The respondent was arrested pending his trial. As the commencement of the trial was nowhere in sight an application for bail (Criminal Miscellaneous No. 2502-B/77) was moved in the Lahore High Court on the ground of inordinate delay in the trial. This application came up before a learned Single Judge of the High Court who observed that a large number of murder trials were pending in the District of Gujrat
(650) and in view of this situation a Division Bench of the High Court had while dealing with another murder case from Gujrat District, allowed bail where the incident had taken place on 27-8-76 that is on date subsequent to the occurrence in present case, namely, 7-6-76. Accordingly, bail was allowed in this case as well by the learned Single Judge vide his order dated 6-7-1978.
2. An application for cancellation of bail was then moved and it was argued that in view of this Court decision in Anwar Khan v. The State (1978 SCMR 314) that mere delay was not a ground on which bail could be allowed, the bail may be cancelled. This matter came up for hearing before the same learned Judge who had earlier granted the bail and he observed that having once exercised his discretion to allow bail, it could not be recalled in the absence of cogent reasons such as the order having been obtained through misrepresentation or suppression of facts or that the concession of bail was being abused in a manner so as to obstruct or hamper the course of fair trial. Accordingly, the application for cancellation of bail was rejected on 18-10-1978 with the direction, however, that the trial may be expedited. This petition for leave to appeal is directed against the last mentioned order.
3. Mr. Shahid Hussain Kadri in support of this petition presented a two--fold argument. He submitted in the first place that the order of the High Court was inconsistent with dictum laid down by this Court in case of Anwar Khan v. The State. This point has been adequately discussed by the learned Judge in the impugned order and for reasons given by him, we consider that there is no weight in it.
4. In the second place, it was contended that the respondents had misused the concession of bail in that after his release on bail, he had gone to the extent of attacking the brother of the deceased, and a case under section 307, P. P. C. Had been registered against him on 12-1-1979. The instance, it was submitted, was a clear example of misuse of the concession of bail.
5. The order impugned before us was passed on 18-10-1978 and was correct when passed in the light of the circumstances as they then existed and the events that have taken place thereafter cannot be made the basis of obtaining reversal of the said order. If indeed the respondent has misused the con--cession of bail and attacked the brother of the deceased and a case under section 307, P. P. C. Has beets registered against him the petitioner may, if so advised, move the Court concerned for cancellation of bail on this ground. However, no ground exists for interfering with the order dated, 18-10-1978, which is impugned before us.
6. The upshot is that this petition fails and is dismissed hereby.