OMER HAYAT vs SHAHADAT KHAN and others
This petition for leave to appeal arises from an order of the High Court granting post-arrest bail to the respondents, who were accused in a case registered under sections 302, 307, 149, and 148 of the Pakistan Penal Code. The High Court had granted bail primarily considering that the respondents were found innocent during investigation by a Deputy Superintendent of Police and placed in column No. 2 of the challan. Before the Supreme Court, the petitioner contended that subsequent re-investigation ordered by the Inspector-General of Police implicated the respondents and a supplementary challan had been submitted. The core legal question was whether the Supreme Court should interfere with the High Court's bail order based on new material not available before the High Court. The Supreme Court dismissed the petition, holding that it is not proper to interfere with an order on the basis of material that was not before the High Court, while observing that the petitioner may approach the High Court for cancellation of bail based on the new material.
- Whether the Supreme Court can interfere with a bail order on the basis of material that was not before the High Court?
- Can a petitioner seek cancellation of bail before the High Court on the basis of new material arising from a subsequent re-investigation?
- Is the police opinion finding an accused innocent during investigation a relevant consideration in the matter of bail?
- Section 302, Pakistan Penal Code
- Section 307, Pakistan Penal Code
- Section 149, Pakistan Penal Code
- Section 148, Pakistan Penal Code
ORDER
' SAAD SAOOD JAN, J.---Shaukat Khan and Muhammad Khan, respondents, were arrested in a case registered at Police Station Khanqah Dogaran under sections 302 and 307, read with section 149, and section 148 of the Pakistan Penal Code. The allegations against them were that on 24-6-1988, at 4-30 p.m., they together with 7 other persons formed an unlawful assembly and in prosecution of the common object of the said assembly they armed themselves with shot guns and caused the death of one Khizar Hayat. They applied for bail before the High Court. A learned Single Judge found that during the course of investigation they had been found innocent by an officer of the rank of Deputy Superintendent of Police and in the challan submitted to the Court they had been placed in column No,2. The learned Judge thought that though the opinion of the police was not binding on the Court yet it was a relevant consideration in the matter of hail. Accordingly, he released them on bail. The petitioner, who had lodged the first information report, seeks leave to appeal from the order of the High Court.
2. In support of this petition it is stated that since the High Court enlarged the respondents on bail the matter has been reinvestigated by an officer deputed by the Inspector-General of Police and as a result of the re-investigation the respondents have been found to have taken part in the occurrence; accordingly a supplementary challan has been submitted in the Court wherein both the respondents have been shown as accused persons.
3. It will be noticed that the material upon which the petitioner seeks the cancellation of the bail granted to the respondents was not before the High Court when it made the impugned order. It is, therefore, not right for this Court to interfere with the said order. The petitioner may, if so advised, apply to the High Court for the cancellation of the bail earlier granted to the respondents on the basis of the new material. With these observations, the petition is dismissed.