Bail matters: SC to examine legality of orders only if HC exercises discretion

ISLAMABAD: The Supreme Court of Pakistan has declared that in the appellate jurisdiction, under Article 185(3) of the Constitution of Pakistan, it would examine the legality of the orders and correct them only if it found that the High Court has exercised the discretion in granting or declining bail arbitrarily, perversely or contrary to the settled principles of law.

A two-judge bench, comprising Mr. Justice Mansoor Ali Shah and Mr. Justice Aminuddin Khan held this, while hearing an appeal of Muhammad Nawaz against a verdict of the Lahore High Court (LHC), under Article 185(3) of the Constitution. The LHC had dismissed the petition of Muhammad Nawaz on the very statement of him to withdraw the same.

The judgment authored by Mr. Justice Mansoor Ali Shah said there is a difference between the appellate jurisdiction of the apex court under Article 185(3) of the Constitution in bail matters and the original jurisdiction of the High Court to grant bail under Section 498, CrPC.

It said that Section 498, CrPC confers original and concurrent jurisdiction on the High Court and Court of Session to grant bail, by stating that "the High Court or Court of Session may in any case direct that any person be admitted to bail".

"Therefore, when a trial court, for instance, a Court of Magistrate, declines to grant post-arrest bail under Section 497, CrPC to a person accused of having committed a non-bailable offence, the accused files a fresh petition under Section 498, CrPC in the Court of Session and, in case of failure to obtain the relief once again he approaches the High Court," it added.

Justice Mansoor Ali Shah said that the Court of Session and the High Court have original jurisdiction to grant bail and they make their own independent orders on the said petitions without commenting upon and setting aside the order of the trial court.

"The power of the High Court and the Court of Session, under Section 498 CrPC, to grant post-arrest bail is thus co-extensive and concurrent with that of the trial court under Section 497 CrPC, while the power to grant pre-arrest bail under the said Section is exclusive to them."

The judgment, however, stated that the appellate jurisdiction of the apex court, under Article 185(3), in bail matters is quite distinct from the original jurisdiction of the

High Court and Court of Session under Section 498, CrPC.

The essential criterion of appellate jurisdiction is that it examines and if required corrects the errors, if any, of a lower forum.

The verdict further said that being the nature of appellate jurisdiction, the apex court examines the legality of the orders passed by the High Court in bail matters and corrects those orders in appellate jurisdiction under Article 185 (3) of the Constitution only when it finds that the High Court has exercised the discretion in granting or declining bail arbitrarily, perversely or contrary to the settled principles of law, regulating bail matters.

"This present petition is a classic example of such misconception, wherein after full arguments the bail petition was withdrawn before the High Court, yet relief of bail has been prayed for by the petitioner as if this Court has jurisdiction concurrent with the courts below to entertain bail petitions.

The Court noted that the grounds agitated in the petition do not point out any legal error in the order of the High Court and gives no justification for filing of the present petition, which is therefore utterly misconceived."

The court therefore, allowed the petitioner to withdraw the present petition, but imposed ä cost of Rs10,000 on the petitioner, under Rule 3 of Order XXVIII of the Supreme Court Rules, 1980.

Copyright Business Recorder, 2021