MOHAMMAD ASHRAF vs The STATE

1. SALAHUDDIN AHMED, J.-This appeal is from the order of the then High Court of West Pakistan, Lahore, granting bail to three convicts and refusing bail to the other three convicts including the appellant herein, pending the hearing of the appeal by the 6 persons against their convictions under section 302/148/307/149 of the Pakistan Penal Code and sentences of transportation for life.

2. This Court granted leave to appeal to consider the question on what basis the High Court distinguished the case of the appellant from the other convicts.

3. Mr. Abdur Rahman, learned Advocate appearing on behalf of the appellant, has contended that inasmuch as the trial has been vitiated on account of the fact that part of the evidence was recorded by one Sessions Judge and part of that by another Sessions Judge, who ultimately convicted and sentenced the accused persons, the trial is bad beyond repair and the appellant, therefore, should have been granted bail by the High Court. He has further contended that no important role was assigned to the appellant in the First Information Report and that there is hardly anything to distinguish the case of the appellant from his co-convicts who were granted bail.

4. The short answer to the first contention is that the entire appeal being sub judice before the High Court, this question which relates to the merit of the case cannot be raised before us at this stage.

5. As regards the second contention, it appears that four of the accused persons including the three convicts who have been granted bail by the High Court, were mentioned in the second column of the Police Challan and one of them was acquitted at trial. This was seized as a ground by the learned Judges of the High Court to release the aforesaid three convicts on bail. The Police Challan is nothing but the opinion of the Investigating Agency, and is entirely an irrelevant consideration for releasing on bail the three convicts who, along with the fellow convicts including the appellant have been convicted and sentenced to transportation for life under section 302 read with 149 of the Penal Code.

6. In the case of Khalid Saigol v. The State (L R 61 I A 393) this Court has lucidly and exhaustively discussed the principles upon which the question of bail should be considered by the High Court in an appeal from conviction or acquittal. In the case under report the Supreme Court cited with approval the case of Sheo Swarup v. King-Kmperor (PLD 1962 SC 495) where the Privy Council inter alia observed that before reaching its conclusions upon the fact, the High Court should and would always give proper weight and consideration to such matters as the views of the trial Judge as to the credibility of the witnesses, the right of the accused to the benefit of any doubt, and the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. In our opinion, therefore, it was neither advisable nor proper on the part of the learned Judges of the High Court to release the said three convicts on bail. We, however, feel that the appellant was rightly refused bail although there was hardly any basis for distinguishing his case from that of the said three convicts.

7. The appeal is, accordingly, dismissed.