Pakistan Case Law
1971 SCMR 789

MUHAMMAD KHAN vs MUHAMMAD ASLAM AND 3 Other

⭐ Prefer in Google
Citation1971 SCMR 789
CourtSupreme Court of Pakistan
Case No.Criminal Appeal No. 123 of 1970
Date1971-12-01
Judge(s)Muhammad Yaqub Ali and Salahuddin Ahmed
Authored byMuhammad Yaqub Ali
ResultOrder accordingly
AI Summary — generated from this judgment; read the full text below and verify before relying on it.

This appeal arises from an order of the High Court of West Pakistan granting bail to respondents charged under Section 302 of the Pakistan Penal Code 1860, notwithstanding the prior refusal of bail by another judge of the same court on similar grounds. The core legal question concerns the propriety and legality of a High Court judge reviewing or granting a subsequent bail application after another judge of coordinate jurisdiction has refused it, absent fresh grounds. The Supreme Court held that a criminal judgment or order is not open to review under the Code, and while fresh bail applications are permissible upon the emergence of new grounds, judicial propriety and institutional harmony require that such subsequent applications be placed before the same judge who dealt with the matter earlier. The Supreme Court modified the High Court's order, allowing the respondents to remain on bail solely until the conclusion of commitment proceedings, upon which their bail would stand cancelled if committed for trial.

Questions settled in this judgment
  • Is a criminal judgment or order open to review under the Code?
  • Can a judge of the High Court grant bail to an accused person after another judge of the same Court has earlier refused bail on similar grounds?
  • What is the required procedure when a fresh bail application is filed after bail has been previously refused by another judge?
  • What is the effect on bail if an accused is committed to stand trial for an offense punishable with death or transportation for life under the modified order?
Laws & provisions referred
  • Section 302, Pakistan Penal Code 1860
post-arrest bailbail cancellationsuccessive bail applicationjudicial proprietymurdercommitment proceedings

1. MUHAMMAD YAQUB ALI , J.---This appeal is directed against the order dated 3rd December 1968; of a learned Single Judge of the erstwhile High Court of West Pakistan, Lahore Seat, granting bail to the respondents,- who are charged under section 302, P. P. C. For the murder of one Nawab of Dera Nawab, P..S. Sadder, Sargodha.

2. It was observed at the leave stage that another learned Judge of the High Court having refused bail to the respondents on 10th October 1968, it required consideration whether his order was open to review more particularly as the grounds raised in the subsequent petition were similar to the grounds urged in the former application for bail. The rule of propriety also required that the second bail application should have been referred to the learned Judge who had already dealt with this matter.

3. Since leave was granted this Court has in more than one case pointed out that as a judgment delivered in a criminal case is-not open to review under the Code, it is not proper for a learned Judge of the High Court to allow bail to an accused person who has been earlier refused bail by another Judge of the same Court. ,q It does not mean that once bail is refused by the High Court no fresh application for bail will lie. If fresh grounds have come into existence bail may be allowed, but in-such a case the rule of propriety- and harmony of the Court requires that the case be referred to the same learned Judge who had earlier refused bail.

4. In the instant case inquiry under Chapter XVIII of the Code has already been commenced and four eye-witnesses have been examined. It is regrettable that no further proceedings have taken place as the records were quite unnecessarily summoned by the Registry.

5. In the circumstances of the case, we consider it sufficient for the purposes of this case to allow the respondents to remain on bail till the conclusion of the commitment proceedings. In case they are committed to stand trial for offences punishable with death or transportation for life their bails shall stand cancelled.

6. Office will send back the records to the Inquiry Magistrate forthwith who will hear the case from day to day and complete the inquiry without further loss of time.

7. The appeal is allowed to the extent of the modification of the Order passed by the High Court as indicated above.

Cited by 16 cases

For educational and research use only — not legal advice. Verify against the official report before relying on it. See our Disclaimer.