Bail Principle

P L D 1995 Supreme Court 34
Present: Mir Hazar Khan Khoso and Muhammad Munir Khan, JJ
TARIQ BASHIR and 5 others---Petitioners
versus
THE STATE---Respondent
Criminal Petition for Leave to Appeal No. 56-K of 1994, decided on 31st August, 1994.
(On appeal from the order of High Court of Sindh at Karachi, dated 5-7-1994
passed in Criminal Bail No.265/1994 (Kar.) 117/1994 (Hyd.)).
(a) Criminal Procedure Code (V of 1898)---
----Ss. 496 & 49'7---Bail---Grant of bail in bailable offence is a right while in non-bailable
offences the grant of bail is not a right but concession/grace-- Grant of bail in offences
punishable with imprisonment for less than ltl years is a rule and refusal an exception---
Exceptional and extraordinary cases whore bail is declined in oases of offences
punishable with imprisonment of loss than ten years enumerated.
In bailable offences the grant of bail is a right and not favour, whereas in non-bailable
offences the grant of bail is not a right but concession/grace. Section 497, Cr.P.C. divided
non-bailable offences into two categories i.e. (i) offences punishable with death,
imprisonment of life or imprisonment for tee years; and (ii) offences punishable with
imprisonment for loss than ten years. In non-bailable offences falling in the second
category (punishable with imprisonment for less than ten years) the grant of bail is a rule
and refusal an exception. So the bail will be declined only in extraordinary and
exceptional cases for example ---
(a) where there is likelihood of the abscondence of the accused;
(b) where there is apprehension of the accused tampering with the prosecution evidence;
(c) where there is danger of the, offence being repeated if the accused is released on bail;
and
(d) whore the accused is a previous convict.
(b) Criminal Procedure Code (V of 19138)---
----S. 497---Bail-_-Under-trial accused of bailable. offences---Remand on failure to furnish

surety/bail bond---H I,=-in bailable cases while remanding the accused to jail on his
failure to furnish surety/ail bond, Trial Court should consider the propriety of his release
on execution of personal bond and not only the fist ardor of judicial remand but also oath
subsequent ardor must show that the Court had really considered the propriety of his
release on personal bond.
Many under-trial accused of bailable offences and preventive offences i.e.-

offences under suctions 1(l7,1Q9 and ILtI, Cr.P.C. are sent to or confined in jails for want
of surety bonds although they, at the discretion of the Court, could be released on
execution by chum of bond (personal bond) without surety for their appearance before
the Court, Even in petty cases the Courts/subordinate Courts remand the accused to ,jail
on their failure to produce sureties with the result that hundreds of under-trial accused
who could have easily been released on personal bond are ratting in the jail for a long
time. Supreme Court, therefore, directed that in bailable cases while remanding the
accused to jail on his failure to furnish surety/bail bonds, the trial Court shall consider,
the propriety of his release on execution of personal bond. Not only the first order of
judicial remand but also each subsequent order must-show that the Court had really
considered the propriety of his release on personal bond. Instead of being severe to an
under-trial accused carrying presumption of innocence with them, it is bettor that the
Court should be lenient in the matter-of bail, food and medical facilities.
(c) Criminal Procedure Code (V of 1898)-._
_--S. 497---prisons Act (IX of 1894), S.32__Bail-- Under-trial prisoner-- Accused in bailable
offences, potty offences and offences punishable- with imprisonment for less than 10
years should not unnecessarily be detained in the jail---Under-trial prisoners are entitled
to have clothes and food privately under 5.32; Prisons Act, which facilities are to be
liberally provided to them till they are convicted.
Under section 32 of the Prisons Act, an under-trial prisoner is entitled to have clothes and
food privately. These facilities should liberally be provided to them till they are
convicted. The jails are over-crowded. The detention of under-trial prisoners, food and
medical facilities and their transportation from jail to the Court heavily burden public
exchequer. It would be in consonance with the law of bail and in the fitness of things that
accused in bailable offences, petty offences and offences punishable with imprisonment
for less than ten years should not unnecessarily be detained in the jail.
(d) Criminal Procedure Code (V of 1898)---
----S. 497---Bail---Accused of offences punishable with death, or imprisonment for life, or

for ten years---Grant/refusal of bail to be determined judiciously having regard to the
facts and circumstances of each case---Provisions of 5.497, Cr.P.C. are not punitive in
nature as regards offences punishable with death; or imprisonment for life, imprisonment
for ten years, for there is no concept of punishment before judgment in law---Where the
prosecution satisfies the Court that there are "reasonable grounds" to believe that the
accused has committed the crime falling in category of offences punishable with death,
or imprisonment for life, or imprisonment for ten years the Court must refuse bail---
Where, however, the accused satisfies the Court that there are no reasonable grounds to
believe that he is guilty of such offence, then the Court must release him on bail---Court,
for arriving at any such conclusion, is not to conduct a preliminary trial/ inquiry but will
only make tentative assessment "Reasonable grounds" mean grounds which appeal to a
reasonable and prudent
man---Guidelines for Courts in disposal of bail cases furnished.--[Words anti phrases].
As regards offences, punishable with death, or imprisonment for life, or

imprisonment for ten years the provisions of section 497(1) are not punitive in nature.
There is no concept of punishment before judgment in the criminal law of the land. The
question of grant/refusal of bail is to be determined judiciously leaving regard to the facts
and circumstances of each case. Where the prosecution satisfies the Court, that there are
reasonable grounds to believe that the accused has committed the crime falling in the
category of offences punishable with death, or imprisonment for life, or imprisonment
for ten years; the Court must refuse bail. On the other hand where the accused satisfies
the Court that there are not reasonable grounds to believe that he is guilty of such offence,
then the Court must release him on bail. For arriving at the conclusion as to whether or
not there are reasonable grounds to believe that the accused is guilty of offence
punishable with death, imprisonment for life or imprisonment for ten years, the Court
will not conduct a preliminary trial/inquiry but will only make tentative assessment, i.e.,
will look at the material collected by the police for and against the accused and be prima
facie satisfied that some tangible evidence can be offered which, if left unrebutted, may
lead to the inference of guilt. Deeper appreciation of the evidence and circumstances
appearing in the case is neither desirable nor permissible at bail stage. So, the Court will
not minutely examine the merits of the case or plea of defence at that stage.
The bail order must be carefully balanced and weighed in scale of justice and
requirement of relevant law. Reasonable grounds mean grounds which appeal to a
reasonable and prudent man.
(e) Criminal Procedure Code (V of 1898)---
____s, 497(5)---Bail---Cancellation---Grant of bail and cancellation thereof--

Considerations altogether different---Once bail is granted by Court of competent
jurisdiction, then strong and exceptional grounds would be required for cancellation
thereof.
(f) Criminal Procedure Code (V of 1898)---
----S. 497---Bail---To deprive a person on post-arrest bail of the liberty is a most serious
step to be taken.
.
(g) Criminal Procedure Code (V of 1898)---
----S. 497---Bail---Offence allegedly committed by accused punishable with death;

imprisonilpent for life or imprisonment for ten years---Benefit of reasonable doubt about
occurrence itself, identity of-the accused, part allegedly played by accused in the
occurrence, his presence on the spot and all the questions of his vicarious liability, would
go to him at bail stage --- Wherever reasonable doubt arises with regard to the
participation of an accused person in the crime, he should not be deprived of the benefit
of bail, for bail can neither be withheld nor cancelled as punishment.--[Benefit of doubt].
There is no legal compulsion to cancel the bail of the accused who allegedly have
committed crime punishable with death, imprisonment for life or imprisonment for ten
years. Question of benefit of reasonable doubt is necessary to be determined not only
while deciding the question of guilt of an accused but also while considering the question
of bail because there is a wide difference between the jail life and a free life. So, benefit of
reasonable doubt 'about occurrence itself, identity of the accused, part allegedly played
by him in the occurrence, his presence on the spot and on the question of his vicarious
liability, would go to him even at bail stage. There is a tendency to involve innocent
persons with the guilty. Once an innocent person is falsely involved in a serious case then
he has to remain in jail for considerable time. Normally it takes two years to conclude the
trial. When a person is detained in the jail, all his dependents also suffer hardships. The
ultimate conviction and incarceration of a guilty person can repair the wrong caused by
a mistaken relief of interim bail granted to him, but no satisfactory reparation can be
offered to an innocent man for his unjustified incarceration -at any stage of the case, albeit
his acquittal in the long run. So, whenever reasonable doubt arises with regard to the
of bail. The bail can neither be withheld nor cancelled as punishment.
(h) Criminal Procedure Code (V of 1898)--
----S. 497---Bail---One Judge of the High Court on examination of the F.LR., statements
recorded under S.161, Cr.P.C. and the material collected during investigation was of the
opinion that there were no reasonable grounds to believe that the accused were guilty of
the offence alleged against them-- Another Judge of the same High Court on the same
material on record had come to totally different conclusion that there were reasonable
grounds to believe that accused persons had committed the alleged crime---
Held contrary views/opinions of the two Judges of the same High Court about the guilt
of the accused, in circumstances, made out a case of further inquiry within the meaning
of S.497(2), Cr.P.C.
In the present case, one Judge of the High Court on examination of the F.LR.,
statements recorded under section 161, CrP.C. and the material collected during
investigation was of the opinion, that there were no reasonable grounds to believe that
the accused were guilty of the offences alleged against them, whereas on the same
material on record, another Judge of the same High Court had come to a totally different
conclusion that there were reasonable .grounds to believe that the accused persons had
committed the alleged crime. The contrary conclusions arrived at by the two Judges of
the High Court had made the existence of reasonable grounds to connect the accused
with the crime doubtful, entitling the accused to benefit of doubt at such stage. In any
case, the contrary views/opinions of the two Judges of the High Court about the guilt of
the accused had made out a case of further inquiry within the meaning of subsection (2)
of section 497, Cr.P.C.
Kh. Naveed Ahmad, Advocate instructed by Faizanul Haq, Advocate- on-Record

for Petitioners.
Abdul Ghafur Mangi, Additional Advocate-General, Sindh for the State

Date of hearing: 31st August, 1994.
JUDGMENT
MUHAMMAD MUNIR KHAN, J: --This petition for leave to appeal is directed

against the order, dated 5-8-1994 of the High Court of Sindh at Karachi whereby post-
arrest bail granted to the petitioners Tariq Bashir and Shahzad Bashir on 22-12-1993 and
Kamran Bashic, Suhail Zafar, Muhammad Moiz and Zafar Iqbal on 9-3-1994, in case F.LR.
No.146/1993, dated ?-4-1993, Police Station Ferozeabad, by Mr. Justice Syed Khurshid
Hyder Rizvi (as he then was) was cancelled by Mr. Justice Mamoon Kazi of the same
High Court.
2. Facts of the case, briefly stated, are that on 7-4-1993, at 1-00 p.m. five unknown persons,
duly armed, committed dacoity in the house of Mst. Robina Amjad and took away
ornaments, jewellery, cash and prize bonds. On the report of Mst. Robina Amjad, F.LR.
under section 17(3) of the Offences Against Property (Enforcement of Hudood)
Ordinance, 1979 was registered at Police Station Ferozeabad on the same day at 4-15 p.m.
The petitioners were arrested on 2-11-1993 and the stolen property was allegedly
recovered from them. They were released on bail by the High Court which was
subsequently cancelled vide impugned order. Hence this petition for leave to appeal.
3. Learned counsel for the petitioners contended that post-arrest bail granted to the
petitioners by one learned Judge of the High Court has been cancelled by another learned
Judge of the same High Court without legal and factual justification.
4. Learned Additional Advocate-General has half-heartedly supported the order of

cancellation of bail on the ground of seriousness of the charge.
5. Being fully' conscious of the seriousness of the charge against the petitioners we
have examined the impugned order of the cancellation of bail with utmost care on our
part.
6. Section 496 and subsections (1) and (2) of section 497 of the Criminal Procedure Code
read as hereunder:---
"496. In what cases bail to be taken.-- -When any person other than a person accused of a
non-bailable offence is arrested or detained without warrant by as officer-in-charge of a
police station, or appears or is brought before a Court, and is prepared at any time while
in the custody of such officer or at any stage of the proceedings before such Court to give
bail, such person shall be released on bail: Provided that such officer of Court, if he or it
thinks fit, may instead of taking bail, from such person, discharge him on his executing a
bond without sureties for his appearance as hereinafter provided:
Provided further, that nothing in this section shall be deemed to affect the provisions of
section 107, subsection (4), or section 117, subsection (3).
497. When bail may be taken in case of non-bailable offence.---(1) When only person
accused of any non-bailable offence is arrested or detained without warrant by an officer-
in-charge of a police station, or appears or is brought before a Court, he may be released
on bail, but he shall not be so released if there appear reasonable grounds for believing
that he has been guilty of an offence punishable with death or imprisonment for life or
imprisonment for ten years:
Provided that the Court may direct that any person under the age of sixteen years or any
woman or any sick or infirm person accused of such an offence be released on bail:
Provided further that a person accused of an offence as aforesaid shall not be released on
bail unless the prosecution has been given notice to show cause why he should not be so
released,
2. If it appears to such officer or Court at any stage of the investigation, inquiry or trial,
as the case may be, that there are not reasonable grounds for believing that the accused
has committed a non-bailable offence, but that there are sufficient grounds for further
inquiry, into his guilt, the accused shall, pending such inquiry, be released on bail, or at
the discretion of such officer or Court, on the execution by him of a bond without sureties
for his appearance as hereinafter provided.,"
It is crystal clear that in bailable offences the grant of bail is a right and not favour,
whereas in non-bailable offences the grant of bail is not a right but concession/grace.
Section 497, Cr.P.C. divided non-bailable offences into two categories i.e. (i) offences
punishable with death, imprisonment of life or imprisonment for ten years; and (ii)
offences punishable with imprisonment for fuss than .ten years. The principle to be
deduced from this provision of law is that in non-bailable offences falling in the second
category (punishable with imprisonment for less than ten years) the grant of bail is 'a rule
exceptional cases, for example-_-
(a) where there is likelihood of abscondcace of the accused;
(c) where there is danger of the offence being repeated if the accused is released on bail;
and
(d) where the accused is a previous convict.
We know that many under-trial accused of bailable offences and I preventive offences i.e.
offences under sections 10?, 109 and 110, Cr.P.C. have been sent to confined in jails for
want of surety bonds although they, at the discretion of the Court, could be released on
execution by them of bond (personal bond) without surety for their appearance before
the Court. We also find that even in petty cases the Courts/subordinate Courts have
remanded the accused to jail on their failure to produce sureties with the result that
hundreds of under-trial accused who could have easily been released on personal bond
are rotting in the jail for a long time. It is, therefore, directed that in bailable ', cases while
remanding the accused to jail on his failure to furnish surety bail bonds, the trial Court
shall consider the propriety of his release on execution of personal bond. Not only the
first order of judicial remand but also each subsequent order must show that the Court
had really considered the propriety of his release on personal bond. Instead of being
severe to an under-trial accused carrying presumption of innocence with them, it is better
that the Court should be lenient in the, matter of bail, food and medical facilities. It is to
be noted that under section 32 of the Prisons Act, an under-trial prisoner is . entitled to
have clothes and food privately. These facilities should liberally be provided to them till
they are convicted. The jails in our country are over crowded. The detention of under-
trial prisoners, food and medical facilities and their transformation from jail to the Court
heavily burden public exchequer. It would be in consonance with the law of bail and in
the fitness of things that accused in bailable offences, petty offences and offences
punishable with imprisonment less than ten years should not unnecessarily be detained
in the jail.
7. As regards the first category of offences (punishable with death, or imprisonment

for life, or with ten years' imprisonment) the provisions of section 497(1) are not punitive
in nature. There is no concept of punishment before judgment in the criminal law of the
land. The question of grant/refusal of 'nail is to be determined judiciously having regard
to the facts and circumstances of each case. Where the prosecution satisfies the Court,
that I there are reasonable grounds to believe that the accused has committed the crime
falling in the first category the Court must refuse bail. On the other hand where the
accused satisfies the Court that there are not reasonable grounds to believe that he is
guilty of such offence, then the Court must release him on' bail. For arriving at the
conclusion as to whether or not there are reasonable, grounds to believe that the accused
is guilty of offence punishable with death, imprisonment for life or with ten years'
imprisonment, the Court will not conduct a preliminary trial/inquiry but will only make
tentative assessment, i.e. will look at the material collected by the police for and against
the accused and be prima . facie satisfied that some tangible evidence can be offered
which, if left unrebutted, may lead to the inference of guilt. Deeper appreciation of the,
evidence and circumstances appearing in the case is neither desirable nor permissible at
bail stage. So, the Court will not minutely examine the merits of the case or plea of defence
at that stage.
8. The case-law on the subject of bail is very much clear that the bail order must be
carefully balanced and weighed in scale of justice and requirement of relevant law.
Reasonable grounds mean grounds which appeal to a reasonable and prudent man.
9. The considerations for the grant of bail and for cancellation of the same are altogether
different. Once the bail is granted by a Court of competent jurisdiction, then strong and
exceptional grounds would be required for cancellation thereof. To deprive a person on
post-arrest bail of the liberty is a most serious step to be taken. There is no legal
compulsion to cancel the bail of the accused who allegedly has committed crime
punishable with death, imprisonment for life or imprisonment for ten years. Question of
benefit of reasonable doubt is necessary to be determined not only while deciding the
question of guilt of an accused but also while considering the question of bat: because
there is a wide difference between the jail life and a free life. So, benefit of reasonable
doubt about occurrence itself, identity of the accused, part allegedly played by him in the
occurrence, his presence on the spot and on the question of 'his vicarious liability, would
go to him even at bail stage. It is by now judiciously recognized that there is a tendency
in our country to involve innocent persons with the guilty. Once an innocent person is
falsely involved in a serious case then he has to remain in jail for considerable time.
Normally it takes two years to conclude the trial. When a person is detained in the jail,
all his dependents also suffer hardships. The ultimate conviction and incarceration of a
guilty person can repair the wrong caused by a mistaken relief of interim: bail granted to
him, but no satisfactory reparation can be offered to an innocent man for his unjustified
incarceration at any stage of the case, albeit his acquittal in the long run. So, whenever
reasonable doubt arises with regard to the participation of an accused person in the crime,
he should not be deprived of the benefit of bail. The bail can neither be withheld nor
cancelled as punishment.
10. In the instant case, one learned Judge of the High Court on examination of the
F.LR., statements recorded under section 161, Cr.P.C. and the material collected during
investigation was of the opinion that there were not reasonable grounds to believe that
the petitioners are guilty of the offences alleged against them, whereas on the same
material on record, another learned Judge of the same High Court has come to a totally
different conclusion than there are reasonable grounds to believe that the petitioners have
committed the alleged crime. We feel that the contrary conclusions arrived at by the two
learned Judges of the High Court have made the existence of reasonable grounds to
connect the accused with the crime doubtful, entitling the petitioners to benefit of doubt
at this stage. In any case, the contrary views/opinions of the two learned Judges of the
High Court about the guilt of the petitioners have made. out a case of further inquiry
within the meaning of ,subsection (2) of section 497, Cr.P.C. '
11. Even otherwise, the grounds on which the bail was allowed by the learned Judge of
the High Court are supportable from the facts and circumstances of the case. The names
of the petitioners/accused are not mentioned although two of them namely, Tariq Bashir
and Shahzad Bashir are the first cousins of the complainant. In the F.LR., number of the
accused given by the complainant was five. During investigation it was exaggerated from
five to nine. Three persons namely, Jano Bhatti, Capt. Nadeem, and Nadeem son of Jano
who were previously known to the complainant were also implicated. The details of the
jewellery, ornaments, number of prize bonds and the amount of cash are not mentioned
in the F.LR. In this view of the matter, it cannot be said that on the tentative assessment
of the evidence the learned Judge of the High Court was not justified in granting, bail to
the petitioners.
12. Accordingly, the petition is converted into an appeal and allowed, subject to the
petitioners furnishing fresh hail bonds in the sum of Rs. 25,000 each, with one surety each
in the like amount to the satisfaction of the trial curt. The challan has already been
submitted in the Court. The trial Court is directed to die the case within six months. The
observations made by High Court in the impugned orders and by this Court in this
judgment are without prejudice to the case of either party at trial.
By our short order we had converted the petition into an appeal and allowed the same.
These are the reasons therefor.
M.B.A:/T-104/S
Order accordingly
Present: Mir Hazar Khan Khoso and Muhammad Munir Khan, JJ
TARIQ BASHIR and 5 others---Petitioners
versus
THE STATE---Respondent
Criminal Petition for Leave to Appeal No. 56-K of 1994, decided on 31st August, 1994.
(On appeal from the order of High Court of Sindh at Karachi, dated 5-7-1994
passed in Criminal Bail No.265/1994 (Kar.) 117/1994 (Hyd.)).
----Ss. 496 & 49'7---Bail---Grant of bail in bailable offence is a right while in non-bailable
offences the grant of bail is not a right but concession/grace-- Grant of bail in offences
punishable with imprisonment for less than ltl years is a rule and refusal an exception---
Exceptional and extraordinary cases whore bail is declined in oases of offences
punishable with imprisonment of loss than ten years enumerated.
In bailable offences the grant of bail is a right and not favour, whereas in non-bailable
offences the grant of bail is not a right but concession/grace. Section 497, Cr.P.C. divided
non-bailable offences into two categories i.e. (i) offences punishable with death,
imprisonment of life or imprisonment for tee years; and (ii) offences punishable with
imprisonment for loss than ten years. In non-bailable offences falling in the second
category (punishable with imprisonment for less than ten years) the grant of bail is a rule
exceptional cases for example ---
(a) where there is likelihood of the abscondence of the accused;
(c) where there is danger of the, offence being repeated if the accused is released on bail;
and
(d) whore the accused is a previous convict.
----S. 497---Bail-_-Under-trial accused of bailable. offences---Remand on failure to furnish

surety/bail bond---H I,=-in bailable cases while remanding the accused to jail on his
failure to furnish surety/ail bond, Trial Court should consider the propriety of his release
on execution of personal bond and not only the fist ardor of judicial remand but also oath
subsequent ardor must show that the Court had really considered the propriety of his
release on personal bond.
Many under-trial accused of bailable offences and preventive offences i.e.-

offences under suctions 1(l7,1Q9 and ILtI, Cr.P.C. are sent to or confined in jails for want
of surety bonds although they, at the discretion of the Court, could be released on
execution by chum of bond (personal bond) without surety for their appearance before
the Court, Even in petty cases the Courts/subordinate Courts remand the accused to ,jail
on their failure to produce sureties with the result that hundreds of under-trial accused
who could have easily been released on personal bond are ratting in the jail for a long
time. Supreme Court, therefore, directed that in bailable cases while remanding the
accused to jail on his failure to furnish surety/bail bonds, the trial Court shall consider,
the propriety of his release on execution of personal bond. Not only the first order of
judicial remand but also each subsequent order must-show that the Court had really
considered the propriety of his release on personal bond. Instead of being severe to an
under-trial accused carrying presumption of innocence with them, it is bettor that the
Court should be lenient in the matter-of bail, food and medical facilities.
(c) Criminal Procedure Code (V of 1898)-._
_--S. 497---prisons Act (IX of 1894), S.32__Bail-- Under-trial prisoner-- Accused in bailable
offences, potty offences and offences punishable- with imprisonment for less than 10
years should not unnecessarily be detained in the jail---Under-trial prisoners are entitled
to have clothes and food privately under 5.32; Prisons Act, which facilities are to be
liberally provided to them till they are convicted.
Under section 32 of the Prisons Act, an under-trial prisoner is entitled to have clothes and
food privately. These facilities should liberally be provided to them till they are
convicted. The jails are over-crowded. The detention of under-trial prisoners, food and
medical facilities and their transportation from jail to the Court heavily burden public
exchequer. It would be in consonance with the law of bail and in the fitness of things that
accused in bailable offences, petty offences and offences punishable with imprisonment
for less than ten years should not unnecessarily be detained in the jail.
----S. 497---Bail---Accused of offences punishable with death, or imprisonment for life, or

for ten years---Grant/refusal of bail to be determined judiciously having regard to the
facts and circumstances of each case---Provisions of 5.497, Cr.P.C. are not punitive in
nature as regards offences punishable with death; or imprisonment for life, imprisonment
for ten years, for there is no concept of punishment before judgment in law---Where the
prosecution satisfies the Court that there are "reasonable grounds" to believe that the
accused has committed the crime falling in category of offences punishable with death,
or imprisonment for life, or imprisonment for ten years the Court must refuse bail---
Where, however, the accused satisfies the Court that there are no reasonable grounds to
believe that he is guilty of such offence, then the Court must release him on bail---Court,
for arriving at any such conclusion, is not to conduct a preliminary trial/ inquiry but will
only make tentative assessment "Reasonable grounds" mean grounds which appeal to a
reasonable and prudent
man---Guidelines for Courts in disposal of bail cases furnished.--[Words anti phrases].
As regards offences, punishable with death, or imprisonment for life, or

imprisonment for ten years the provisions of section 497(1) are not punitive in nature.
There is no concept of punishment before judgment in the criminal law of the land. The
question of grant/refusal of bail is to be determined judiciously leaving regard to the facts
and circumstances of each case. Where the prosecution satisfies the Court, that there are
reasonable grounds to believe that the accused has committed the crime falling in the
category of offences punishable with death, or imprisonment for life, or imprisonment
for ten years; the Court must refuse bail. On the other hand where the accused satisfies
the Court that there are not reasonable grounds to believe that he is guilty of such offence,
then the Court must release him on bail. For arriving at the conclusion as to whether or
not there are reasonable grounds to believe that the accused is guilty of offence
punishable with death, imprisonment for life or imprisonment for ten years, the Court
will not conduct a preliminary trial/inquiry but will only make tentative assessment, i.e.,
will look at the material collected by the police for and against the accused and be prima
facie satisfied that some tangible evidence can be offered which, if left unrebutted, may
lead to the inference of guilt. Deeper appreciation of the evidence and circumstances
appearing in the case is neither desirable nor permissible at bail stage. So, the Court will
not minutely examine the merits of the case or plea of defence at that stage.
The bail order must be carefully balanced and weighed in scale of justice and
requirement of relevant law. Reasonable grounds mean grounds which appeal to a
reasonable and prudent man.
____s, 497(5)---Bail---Cancellation---Grant of bail and cancellation thereof--

Considerations altogether different---Once bail is granted by Court of competent
jurisdiction, then strong and exceptional grounds would be required for cancellation
thereof.
(f) Criminal Procedure Code (V of 1898)---
----S. 497---Bail---To deprive a person on post-arrest bail of the liberty is a most serious
step to be taken.
.
(g) Criminal Procedure Code (V of 1898)---
----S. 497---Bail---Offence allegedly committed by accused punishable with death;

imprisonilpent for life or imprisonment for ten years---Benefit of reasonable doubt about
occurrence itself, identity of-the accused, part allegedly played by accused in the
occurrence, his presence on the spot and all the questions of his vicarious liability, would
go to him at bail stage --- Wherever reasonable doubt arises with regard to the
of bail, for bail can neither be withheld nor cancelled as punishment.--[Benefit of doubt].
There is no legal compulsion to cancel the bail of the accused who allegedly have
committed crime punishable with death, imprisonment for life or imprisonment for ten
years. Question of benefit of reasonable doubt is necessary to be determined not only
while deciding the question of guilt of an accused but also while considering the question
of bail because there is a wide difference between the jail life and a free life. So, benefit of
reasonable doubt 'about occurrence itself, identity of the accused, part allegedly played
by him in the occurrence, his presence on the spot and on the question of his vicarious
liability, would go to him even at bail stage. There is a tendency to involve innocent
persons with the guilty. Once an innocent person is falsely involved in a serious case then
he has to remain in jail for considerable time. Normally it takes two years to conclude the
trial. When a person is detained in the jail, all his dependents also suffer hardships. The
ultimate conviction and incarceration of a guilty person can repair the wrong caused by
a mistaken relief of interim bail granted to him, but no satisfactory reparation can be
offered to an innocent man for his unjustified incarceration -at any stage of the case, albeit
his acquittal in the long run. So, whenever reasonable doubt arises with regard to the
of bail. The bail can neither be withheld nor cancelled as punishment.
(h) Criminal Procedure Code (V of 1898)--
----S. 497---Bail---One Judge of the High Court on examination of the F.LR., statements
recorded under S.161, Cr.P.C. and the material collected during investigation was of the
opinion that there were no reasonable grounds to believe that the accused were guilty of
the offence alleged against them-- Another Judge of the same High Court on the same
material on record had come to totally different conclusion that there were reasonable
grounds to believe that accused persons had committed the alleged crime---
Held contrary views/opinions of the two Judges of the same High Court about the guilt
of the accused, in circumstances, made out a case of further inquiry within the meaning
of S.497(2), Cr.P.C.
In the present case, one Judge of the High Court on examination of the F.LR.,
statements recorded under section 161, CrP.C. and the material collected during
investigation was of the opinion, that there were no reasonable grounds to believe that
the accused were guilty of the offences alleged against them, whereas on the same
material on record, another Judge of the same High Court had come to a totally different
conclusion that there were reasonable .grounds to believe that the accused persons had
committed the alleged crime. The contrary conclusions arrived at by the two Judges of
the High Court had made the existence of reasonable grounds to connect the accused
with the crime doubtful, entitling the accused to benefit of doubt at such stage. In any
case, the contrary views/opinions of the two Judges of the High Court about the guilt of
the accused had made out a case of further inquiry within the meaning of subsection (2)
of section 497, Cr.P.C.
Kh. Naveed Ahmad, Advocate instructed by Faizanul Haq, Advocate- on-Record

for Petitioners.
Abdul Ghafur Mangi, Additional Advocate-General, Sindh for the State

Date of hearing: 31st August, 1994.
JUDGMENT
MUHAMMAD MUNIR KHAN, J: --This petition for leave to appeal is directed

against the order, dated 5-8-1994 of the High Court of Sindh at Karachi whereby post-
arrest bail granted to the petitioners Tariq Bashir and Shahzad Bashir on 22-12-1993 and
Kamran Bashic, Suhail Zafar, Muhammad Moiz and Zafar Iqbal on 9-3-1994, in case F.LR.
No.146/1993, dated ?-4-1993, Police Station Ferozeabad, by Mr. Justice Syed Khurshid
Hyder Rizvi (as he then was) was cancelled by Mr. Justice Mamoon Kazi of the same
High Court.
2. Facts of the case, briefly stated, are that on 7-4-1993, at 1-00 p.m. five unknown persons,
duly armed, committed dacoity in the house of Mst. Robina Amjad and took away
ornaments, jewellery, cash and prize bonds. On the report of Mst. Robina Amjad, F.LR.
under section 17(3) of the Offences Against Property (Enforcement of Hudood)
Ordinance, 1979 was registered at Police Station Ferozeabad on the same day at 4-15 p.m.
The petitioners were arrested on 2-11-1993 and the stolen property was allegedly
recovered from them. They were released on bail by the High Court which was
subsequently cancelled vide impugned order. Hence this petition for leave to appeal.
3. Learned counsel for the petitioners contended that post-arrest bail granted to the
petitioners by one learned Judge of the High Court has been cancelled by another learned
Judge of the same High Court without legal and factual justification.
4. Learned Additional Advocate-General has half-heartedly supported the order of

cancellation of bail on the ground of seriousness of the charge.
5. Being fully' conscious of the seriousness of the charge against the petitioners we
have examined the impugned order of the cancellation of bail with utmost care on our
part.
6. Section 496 and subsections (1) and (2) of section 497 of the Criminal Procedure Code
read as hereunder:---
"496. In what cases bail to be taken.-- -When any person other than a person accused of a
non-bailable offence is arrested or detained without warrant by as officer-in-charge of a
police station, or appears or is brought before a Court, and is prepared at any time while
in the custody of such officer or at any stage of the proceedings before such Court to give
bail, such person shall be released on bail: Provided that such officer of Court, if he or it
thinks fit, may instead of taking bail, from such person, discharge him on his executing a
bond without sureties for his appearance as hereinafter provided:
Provided further, that nothing in this section shall be deemed to affect the provisions of
section 107, subsection (4), or section 117, subsection (3).
497. When bail may be taken in case of non-bailable offence.---(1) When only person
accused of any non-bailable offence is arrested or detained without warrant by an officer-
in-charge of a police station, or appears or is brought before a Court, he may be released
on bail, but he shall not be so released if there appear reasonable grounds for believing
that he has been guilty of an offence punishable with death or imprisonment for life or
imprisonment for ten years:
woman or any sick or infirm person accused of such an offence be released on bail:
Provided further that a person accused of an offence as aforesaid shall not be released on
bail unless the prosecution has been given notice to show cause why he should not be so
released,
2. If it appears to such officer or Court at any stage of the investigation, inquiry or trial,
inquiry, into his guilt, the accused shall, pending such inquiry, be released on bail, or at
for his appearance as hereinafter provided.,"
It is crystal clear that in bailable offences the grant of bail is a right and not favour,
whereas in non-bailable offences the grant of bail is not a right but concession/grace.
Section 497, Cr.P.C. divided non-bailable offences into two categories i.e. (i) offences
punishable with death, imprisonment of life or imprisonment for ten years; and (ii)
offences punishable with imprisonment for fuss than .ten years. The principle to be
deduced from this provision of law is that in non-bailable offences falling in the second
category (punishable with imprisonment for less than ten years) the grant of bail is 'a rule
exceptional cases, for example-_-
(a) where there is likelihood of abscondcace of the accused;
(c) where there is danger of the offence being repeated if the accused is released on bail;
and
(d) where the accused is a previous convict.
We know that many under-trial accused of bailable offences and I preventive offences i.e.
offences under sections 10?, 109 and 110, Cr.P.C. have been sent to confined in jails for
want of surety bonds although they, at the discretion of the Court, could be released on
execution by them of bond (personal bond) without surety for their appearance before
the Court. We also find that even in petty cases the Courts/subordinate Courts have
remanded the accused to jail on their failure to produce sureties with the result that
hundreds of under-trial accused who could have easily been released on personal bond
are rotting in the jail for a long time. It is, therefore, directed that in bailable ', cases while
remanding the accused to jail on his failure to furnish surety bail bonds, the trial Court
shall consider the propriety of his release on execution of personal bond. Not only the
first order of judicial remand but also each subsequent order must show that the Court
had really considered the propriety of his release on personal bond. Instead of being
severe to an under-trial accused carrying presumption of innocence with them, it is better
that the Court should be lenient in the, matter of bail, food and medical facilities. It is to
be noted that under section 32 of the Prisons Act, an under-trial prisoner is . entitled to
have clothes and food privately. These facilities should liberally be provided to them till
they are convicted. The jails in our country are over crowded. The detention of under-
trial prisoners, food and medical facilities and their transformation from jail to the Court
heavily burden public exchequer. It would be in consonance with the law of bail and in
the fitness of things that accused in bailable offences, petty offences and offences
punishable with imprisonment less than ten years should not unnecessarily be detained
in the jail.
7. As regards the first category of offences (punishable with death, or imprisonment

for life, or with ten years' imprisonment) the provisions of section 497(1) are not punitive
in nature. There is no concept of punishment before judgment in the criminal law of the
land. The question of grant/refusal of 'nail is to be determined judiciously having regard
to the facts and circumstances of each case. Where the prosecution satisfies the Court,
that I there are reasonable grounds to believe that the accused has committed the crime
falling in the first category the Court must refuse bail. On the other hand where the
accused satisfies the Court that there are not reasonable grounds to believe that he is
guilty of such offence, then the Court must release him on' bail. For arriving at the
conclusion as to whether or not there are reasonable, grounds to believe that the accused
is guilty of offence punishable with death, imprisonment for life or with ten years'
imprisonment, the Court will not conduct a preliminary trial/inquiry but will only make
tentative assessment, i.e. will look at the material collected by the police for and against
the accused and be prima . facie satisfied that some tangible evidence can be offered
which, if left unrebutted, may lead to the inference of guilt. Deeper appreciation of the,
evidence and circumstances appearing in the case is neither desirable nor permissible at
bail stage. So, the Court will not minutely examine the merits of the case or plea of defence
at that stage.
8. The case-law on the subject of bail is very much clear that the bail order must be
carefully balanced and weighed in scale of justice and requirement of relevant law.
Reasonable grounds mean grounds which appeal to a reasonable and prudent man.
9. The considerations for the grant of bail and for cancellation of the same are altogether
different. Once the bail is granted by a Court of competent jurisdiction, then strong and
exceptional grounds would be required for cancellation thereof. To deprive a person on
post-arrest bail of the liberty is a most serious step to be taken. There is no legal
compulsion to cancel the bail of the accused who allegedly has committed crime
punishable with death, imprisonment for life or imprisonment for ten years. Question of
benefit of reasonable doubt is necessary to be determined not only while deciding the
question of guilt of an accused but also while considering the question of bat: because
there is a wide difference between the jail life and a free life. So, benefit of reasonable
doubt about occurrence itself, identity of the accused, part allegedly played by him in the
occurrence, his presence on the spot and on the question of 'his vicarious liability, would
go to him even at bail stage. It is by now judiciously recognized that there is a tendency
in our country to involve innocent persons with the guilty. Once an innocent person is
falsely involved in a serious case then he has to remain in jail for considerable time.
Normally it takes two years to conclude the trial. When a person is detained in the jail,
all his dependents also suffer hardships. The ultimate conviction and incarceration of a
guilty person can repair the wrong caused by a mistaken relief of interim: bail granted to
him, but no satisfactory reparation can be offered to an innocent man for his unjustified
incarceration at any stage of the case, albeit his acquittal in the long run. So, whenever
reasonable doubt arises with regard to the participation of an accused person in the crime,
he should not be deprived of the benefit of bail. The bail can neither be withheld nor
cancelled as punishment.
10. In the instant case, one learned Judge of the High Court on examination of the
F.LR., statements recorded under section 161, Cr.P.C. and the material collected during
investigation was of the opinion that there were not reasonable grounds to believe that
the petitioners are guilty of the offences alleged against them, whereas on the same
material on record, another learned Judge of the same High Court has come to a totally
different conclusion than there are reasonable grounds to believe that the petitioners have
committed the alleged crime. We feel that the contrary conclusions arrived at by the two
learned Judges of the High Court have made the existence of reasonable grounds to
connect the accused with the crime doubtful, entitling the petitioners to benefit of doubt
at this stage. In any case, the contrary views/opinions of the two learned Judges of the
High Court about the guilt of the petitioners have made. out a case of further inquiry
within the meaning of ,subsection (2) of section 497, Cr.P.C. '
11. Even otherwise, the grounds on which the bail was allowed by the learned Judge of
the High Court are supportable from the facts and circumstances of the case. The names
of the petitioners/accused are not mentioned although two of them namely, Tariq Bashir
and Shahzad Bashir are the first cousins of the complainant. In the F.LR., number of the
accused given by the complainant was five. During investigation it was exaggerated from
five to nine. Three persons namely, Jano Bhatti, Capt. Nadeem, and Nadeem son of Jano
who were previously known to the complainant were also implicated. The details of the
jewellery, ornaments, number of prize bonds and the amount of cash are not mentioned
in the F.LR. In this view of the matter, it cannot be said that on the tentative assessment
of the evidence the learned Judge of the High Court was not justified in granting, bail to
the petitioners.
12. Accordingly, the petition is converted into an appeal and allowed, subject to the
petitioners furnishing fresh hail bonds in the sum of Rs. 25,000 each, with one surety each
in the like amount to the satisfaction of the trial curt. The challan has already been
submitted in the Court. The trial Court is directed to die the case within six months. The
observations made by High Court in the impugned orders and by this Court in this
judgment are without prejudice to the case of either party at trial.
By our short order we had converted the petition into an appeal and allowed the same.
These are the reasons therefor.
M.B.A:/T-104/S
Order accordingly
Present : A. R. Cornelius, C. J., B. Z. Kaikaus and
Hamoodur Rahman, JJ
KHALID SAIGOL-Appellant
Versus
THE STATE-Respondent
Criminal Appeal No. 78 of 1962, decided on 8th October 1962.
(On appeal from the judgment and order of the High Court of West Pakistan, Lahore,
dated the 25th June 1962, in Criminal Miscellaneous No. 1382 of 1962 in Criminal Appeal
No. 471 of 1962).
(a) Bail--------Application for-Surrender of applicant, condition precedent for

entertainment of-Criminal Procedure Code (V of 1898), Ss. 417, 497, 498 read with S.
427-[Appeal from acquittal] [The Crown v. Khushi Muhammad P L D 1953 F C 170 and
Chan Shah v. The Crown P L D 1956 F C 43 ref.]
(b) Criminal Procedure Code (V of 1898)---S. 427 read with Ss. 417, 497 & 498-Bail, grant
of, in appeal from acquittal Principles-Section 427 an independent section-Not controlled
by Ss. 497 & 498-Presumption of innocence flowing from order of acquittal-Consideration
in grant or refusal of bail Possibility of absconding, tampering with
evidence-Heinousness of crime not by itself a ground for refusing bail- "Rule of practice
to reuse bail in cases, punishable with death or transpiration. Fullest -discretion, to grant
bail under S. 497 not fettered by any such Rule of, practice"-[Sheo Swarup v. King
Emperor L R 61 I A 398 and Lala Jairam Das and others v. Emperor L R 72 I A 120 ref.]
Nazir Ahmad Khan Senior Advocate Supreme Court (Muhammad Akram Advocate
Supreme Court with him) instructed by K M. Bukhari Attorney for Appellant.
M. B. Zaman Advocate Supreme Court instructed by Ijaz Ali Attorney for Respondent.
Date of hearing : 9th July 1962.

JUDGMENT
HAMOODUR RAHMAN, J.-----This appeal, by special leave, arises out of the judgment
and order of a Division Bench of the High Court of West Pakistan refusing to grant bail
to the appellant hereinafter an appeal against his acquittal had been admitted for hearing.
The appellant was tried along with four others in respect of charges under sections
302/149, .307/149 and 148 of the Pakistan Penal Code by the Additional Sessions Judge of
Lahore who, after a protracted trial, delivered an elaborate and considered judgment
running into some 71 pages finding all the five accused persons not guilty in respect of
all the three charges against them. It was against this acquittal that the State preferred an
appeal on the 2nd of June 1962. This appeal was admitted for regular hearing on the 21st
of June 1962, by the following order
"Having heard the learned Advocate-General, we are of the opinion that the reasons
given by the learned Additional Sessions Judge for rejecting the evidence of Mukhtar
Ahmad P. W. 29, who is prima facie an independent witness, require further
consideration.
We accordingly admit the appeal to a regular hearing. Non bailable warrants returnable
to the District Magistrate, Lyallpur, to issue against all five respondents. Notice."
It appears from the judgment of the High Court that on this occasion too ; although the
accused were not represented in Court ; an oral request was made on their behalf for bail,
but the same was refused. On the next day, therefore, a formal application was filed on
behalf of the present appellant and three others for the grant of bail. This was heard on
the 25th of June 1962, even though up to this date none of the accused persons had either
been arrested or had surrendered or were produced in Court. The High Court, however,
did not choose to insist on their surrender before taking up the application for hearing,
in spite of the fact that an objection was specifically taken by the State on that account
relying on a decision of the Federal Court in the case of The Crown v. Khushi Muhammad
(P L D 1953 F C 170). It preferred to base its order rejecting the bail application on the
ground that since one of the offences alleged was under section 302/149 of the Pakistan
Penal Code and it was a non bailable offence, bail should not be granted, as the "normal
practice" of the said Court was not to grant bail in the case of such offences except in
exceptional circumstances and for special reasons. The learned Judges constituting the
Division Bench hearing the application were furthermore, to quote their own words, "not
satisfied that reasons exist which should impel dig to depart from the normal practice
and to allow bail."
It is against this order that the appellant alone has come up before this Court and it is
urged on his behalf that the alleged "normal practice" relied upon by the High Court has
neither any legal basis nor is it the invariable practice of the said Court. Learned counsel
appearing on his behalf contends that the appropriate provision o: law governing the
grant of bail -to a respondent m an acquittal appeal is section 427 of the Criminal
Procedure Code which gives a wide discretion to the Court, for, according to him, a.
person acquitted by a competent Court after full trial stands on an entirely different
footing from a person who is either facing trial or has been convicted. In so far, therefore,
as the High Court had relied merely upon the heinousness of the offence alleged and its
so-called "normal practice", it had, it is urged, failed to exercise the discretion vested in it
by section 427 of the Criminal Procedure Code upon sound judicial principles having
regard to the facts arid circum stances of this particular case.
Learned counsel for the appellant has further sought to contend that even if it be held
that the principles governing the grant of bail under sections 496 and 497 of the Criminal
Procedure Code are applicable to such cases, the High Court has under section 498
thereof still a discretion to direct that any such person should be admitted to bail.
The learned Assistant Advocate-General appearing on behalf of the State has on the other
hand, maintained that section 427 is merely an enabling section, which is controlled by
sections 496 and 497, which set out the principles upon which bail can be granted,
particularly, since an appeal is nothing more than a continuation of the trial.
Alternatively, he contends that even if section 427 of the Criminal Procedure Code be
held to be independent of sections 496 and 497, the principles of the latter should be taken
as the guiding principles in such matters, and upon such principles the High Court was
fully justified in refusing bail having regard to the heinousness of the offence alleged and
the fact that another Division Bench of the same High Court had already held, by
admitting the appeal against acquittal, that there was a prima facie case against the
appellant. This, at any rate, it is said, raised a presumption that there were reasonable
grounds for believing that the appellant has been guilty of an offence punishable with
death or transportation for life and, therefore, could not be enlarged on bail.
Before entering upon an examination of the above,, arguments it is necessary to mention

that the failure of the appellant either to surrender or to appear before the Court at the
time of the hearing of the bail application has also been relied upon by the State as a
circumstance which disentitled the appellant even from asking for bail. In support of this
contention reliance has been placed on two decisions of the Federal Court of Pakistan in
the cases of The Crown v. Khushi Muhammad and Chat Shah v. The Crown ((1955) 2
FCR 8 = PLD 1956 FC 43). The High Court has referred only to the first-mentioned
decision and has possibly taken the view that since, admittedly on the 2nd of June 1962,
a non-bailable warrant had been issued by the High Court against the appellant, that was
a sufficient form of restraint entitling the person so restrained to ask for bail. It may,
however, be pointed out that even in the said decision the, learned Chief Justice observed
at page 138 that "in the case of a person who is not under arrest, but for whose arrest
warrants have been issued, bail can be granted under section 498 if he appears in Court
and surrenders himself." It is not understood, therefore, why the surrender of the
appellant was not insisted upon.
The principles laid down in the case of Chan Shah, however, could have left no room for
doubt, for, as therein emphasised, "it is an essential condition of the administration of
justice, in a case affecting an individual or individuals, that the persons concerned should
submit to the due process of justice" and, as such, when the appellant himself was
"engaged in setting that judicial order at naught", namely, the non-bailable warrant
issued on the 2nd of June 1962, the High Court would have been entirely justified in
refusing to entertain the bail application until the appellant had submitted to the due
process of justice. But since the High Court itself did not choose to adopt this course, it
cannot be set up at this stage as a ground for supporting its order in this Court,
particularly, since the appellant was throughout present in this Court during the hearing
of this appeal.
Reverting now to the main arguments advanced before us we propose to examine them
in some detail, since this appeal raises an important question, namely, as to what should
be the principles which should govern the grant of bail to a respondent in an appeal
against acquittal.
The relevant provisions of law which fall to be considered in this case are : ----
"Section 427.-When an appeal is presented under section 411-A, subsection (2), or section
417, the High Court may issue a warrant directing that the accused be arrested and
brought before it or any subordinate Court, and the Court before which he is
brought may commit him to prison pending the disposal of the appeal or admit him to
bail.
Section 497 (1).-When any person accused of any non bailable offence is arrested or
detained without warrant by an officer in charge of a police-station, or appears or is
brought before a Court, he may be released on bail, but he shall not be so released if there
appear reasonable grounds for believing that he has been guilty of an offence punishable
with death or transportation for life:
woman or any sick or infirm person accused of such an offence be released on bail.
(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial,
inquiry into his guilt, the accused shall, pending such inquiry, be released on bail, or, at
for his appearance as hereinafter provided.
Section 498.-The amount of every bond executed under this Chapter shall be fixed with
due regard to the circumstances of the case, and shall not be excessive ; and the High
Court or Court of Session may, in any case, whether there be an appeal on conviction or
not, direct that any person be admitted to bail, or that the bail required by a police-officer
or Magistrate be reduced."
It will be observed that even under section 497 (1) ins the case of an offence punishable
with death or transportation for life the mere heinousness of the offence is not by itself a
circumstance sufficient to take away the discretion of a Court to grant bail but in addition
thereto there must also exist reasonable grounds for believing that the person seeking bail
has been guilty of such an offence. Subsection (1) of section 497 evidently applies to a
stage where the accused is first brought before the Court or his arrest is brought to the
notice of the Court and, as such, the Court is B not called upon at that stage to conduct
anything in the nature of a preliminary trial to consider the probability of the accused's
guilt or innocence. It has, nevertheless, as a necessary part of its functions, namely, to
ascertain as to whether there exist any reasonable grounds upon which its belief can be
founded, to look at the materials placed before it by the investigating agency and be
prima facie satisfied that some tangible evidence can be offered which, if left unrebutted,
may lead to the inference of guilt before it can come to the conclusion that its discretion
no longer exists.
Subsection (2) of the said section, on the other hand, comes into application where the
investigation, inquiry or trial has already commenced and in the course thereof the
accused has come to be in a position to satisfy the Court that there are no reasonable
grounds for believing that he has committed the offence alleged and if he so succeeds in
satisfying the Court, then the Court has thereafter no discretion left, for, it is enjoined
thereunder that the Court shall enlarge him on bail even if it is of the view that there still
are sufficient grounds for further inquiry into his guilt. If, as contended on behalf of the
State, the principles of sections 496 and 497 are to be applied also to cases of persons
already tried and acquitted treating the appeal against acquittal as a continuation of the
trial, then logically subsection (2) of section 497 would be attracted and the accused
would legitimately be entitled to urge that, upon his acquittal he had been able to satisfy
the Court that there were no reasonable grounds for believing that he had committed any
such offence, for, the acquittal not only strengthens the pre sumption of innocence but
also negatives the existence of any reasonable ground for believing the accused to be
guilty. This obviously could not have been the intention of the Legislature.
Again even though an appeal is in a sense a continuation of the trial and in an appeal
against acquittal under section 417 of the Code of Criminal Procedure the High Court has
full power to review at large the evidence upon which the order of acquittal is founded
in order to come to its own independent conclusion upon that evidence, yet as observed
by the Privy Council in the case of Sheo Swarup v. King Emperor (L R 61 IA 398) "before
reaching its conclusions upon fact, the High Court should and will always give proper
weight and consideration to such matters, as (1) the views of the trial Judge as to the
credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a
presumption certainly not weakened by the fact that he has been acquitted at his trial, (3)
the right of the accused to the benefit of any doubt and (4) 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." The authority of this decision has been affirmed on more than one
occasion by this Court. It imposes restraints upon the freedom of discretion of the
appellate Court, to which the trial Court was not subject.
It, therefore, appears to us that sections 496 and 497 were not intended to control section
427. Indeed, as observed in the case of Lala Jairam Das and others v. Emperor
(LR72IA120=AIR 1945 PC 94) "the only granting of bail which is referred to in that
Chapter (which consists of sections 496 to 502 inclusive) is the granting of bail to accused
persons. There is no reference therein to the granting of bail to persons who have been
tried and convicted' or, we would like to add, acquitted. The reasons, which impelled
their Lordships of the Judicial Committee to hold in the said case that section 426 was the
only provision in the case which refers to the grant of bail to a convicted person, apply
with equal force to the case of an acquitted person, for, section 427 is also a specific
provision in the Code under the Chapter of Appeals (Chapter XXXI) and is the only
section in the Criminal Procedure Code which refers to the grant of bail to a person
against whose acquittal an appeal has been presented.
We would also respectfully adopt the arguments of their Lordships of the Judicial
Committee in the said case for holding that section 498 has no reference to acquitted
persons, for, it is merely ancillary to sections 496 and 497.
The question that next arises is that if section 427 is an independent section governing the
grant of bail to an acquitted person, against whose acquittal an appeal has been admitted
for hearing, then what are the considerations which should be taken into account by the
Court in properly exercising its discretion under the said, section. We may state
straightway that where Court is called upon to exercise its Judicial discretion, it will not
be discharging its function properly if it Were to proceed upon any a priori assumption
that in all cases where an offence punishable with death or transporation for life is alleged
bail must as a matter of course be refused nor can there be any rule of practice upon the
basis of which such a discretion can be judicially exercised, for, rarely will there a two
cases in which the facts are alike. To act upon a rule of practice may, therefore well
constitute an arbitrary exercise of power, for, the exercise of a discretion vested by law in
a Court must be upon sound judicial principles after taking into account the facts and
circumstances of each case. The nature of the accusation and the heinous of the crime
allege afire, no doubt, very relevant circumstance to be taken into consideration, but by
themselves they are not the circumstances, as we have endeavoure point out even under
section 496 and 497. what further considerations should be taken into account by the
Court in deciding this question must necessarily depend upon the facts and
circumstances of each case, and no hard and fast rule can be laid down.
There may well be a variety of other circumstances of greater or less importance which
may properly be taken into con sideration but we do not wish to enter upon any
exhaustive examination of such matters, since, in our view; it is neither possible nor
desirable to do so. It will be sufficient, however, to indicate that the possibility of the
respondent in such an appeal against acquittal absconding or tampering with witnesses
or hindering the prosecution of the appeal are some of the con siderations which the
Courts have considered relevant for this purpose.
We are not unmindful of the importance of preserving the power of Courts to be able to
act .in such a manner as to ensure that they are not hampered in dispensing justice or that
their final order, whatever it may be, can be effectively carried out. But we cannot help
observing that it is equally important that no person should be deprived of his liberty or
denied the oppor tunity to look after his own case, except for sufficient and cogent
reasons. Thus where the accused person is capable of absconding or of tampering with
witnesses, the maximum restraint may well be justifiably imposed. But in the case of the
appellant before us, we are informed, steps have already been taken to obviate the risk of
his absconding by impounding his Passport. In so far as the other risk is concerned, it
appears to be too remote, for, the calling of witnesses at the appellate stage is confined to
exceptional cases.
It follows, therefore, that in this case full weight may properly be given to the factors
enumerated in Sheo Swarup's case in considering whether bail should or should not be
granted to the appellant. The High Court, it appears, was influenced in refusing the bail
upon only two considerations, namely, (1) that the charges included an offence
punishable with death and (2) the "rule of practice" of the High Court not to grant bail in
such cases except for special reasons and in exceptional circum stances. . This "rule of
practice", we gather, is not invariable, and rightly so, for, the law, as worded; is clearly
designed to give the fullest discretion to the Court. That discretion cannot be fettered by
any "rule of practice". There is, furthermore, no allegation of any kind whatsoever that
any other circum stance, apart from the heinousness of the crime alleged, exists, which
might justifiably betaken into account, nor was any such matter placed before us at the
hearing. So far as the charge of murder is concerned, we have said enough to indicate
that even if there had been no acquittal, this fact would by itself have not been an
insuperable bar to the grant of bail.
For these reasons we allow this appeal and direct that the appellant be enlarged on the
bail already granted to him by the ad interim order made on the 9th of July 1962. In
dealing with this question of bail we have advisedly refrained front either adverting to
or making any observation as to the nature of the evidence in this case or as to the quality
of the judgment of the Additional Sessions Judge lest our comments, one way or the
other, should prejudice either side in the appeal against acquittal pending in the High
Court.
A.H. Appeal allowed.

Present: Sajjad Ahmad, J
In re : RIASAT ALI-Petitioner
versus
(1) GHULAM MUHAMMAD AND
(2) Tim STATE-Respondents
Criminal Miscellaneous Petition No. 62 of 1968 In Criminal Petition for Special Leave to
Appeal No. 194 of 1968, decided on 12th July 1968.
(a) Criminal Procedure Code (V of 1898), S. 497-Bail in non bailable offence-Delay in

prosecution of case amounting to abuse of process of law -A valid ground for bailing out
accused Delay in prosecution of case as a ground for bail, however, to be weighed and
judged, in each case on its own merits.
Inordinate delay in the prosecution of a case, if not explained by the prosecution

amounting to an abuse of the process of law, can be considered as a ground for bailing
out an accused person even in a murder case depending on the nature of the delay and
the circumstances that have caused it. The prosecution is expected to proceed with its
case with all despatch eliminating every avoidable delay in order to bring it to a close and
thus to determine the fate of an accused person which hangs in the balance as long as the
proceedings do not terminate one way or the other. The prosecution cannot be permitted
to enlist the will of the Court on its side directly or indirectly in prolonging the worries
and harassment of an accused person which are inevitably caused by his protracted
detention without trial. Leisurely steps taken in filing the challan, tardy and halting
production of evidence or seeking of unnecessary adjournments, except those
necessitated by force of circumstances must be strongly deprecated. But delay in the
prosecution of a case or the procrastination of the proceeding in a trial furnishing as a
ground for bail have to be weighed and judged in each case on its own merits.
Where, therefore, some adjournments in the trial of a criminal case were caused by
unavoidable circumstances and some occasioned by absence of Presiding Officer from
the Court, it was held, that the Court could not be blamed for indifference or inactivity in
proceeding with the case and the High Court was not justified in granting bail to accused
on ground of delay in such circumstances.
(b) Appeal to Supreme Court-Criminal appeal against order of High Court granting bail
to accused in murder case on ground of delay in prosecution-Supreme Court, finding
grant of bail prima facie not justified, admitting appeal for hearing and as a corollary
issuing non-bailable warrants for arrest of accused filing petition before Supreme Court
praying that order of arrest be suspended contending that else that order would virtually
seal the result of appeal-Contention, held, misconceived Supreme Court at ultimate
hearing might hold bail by High Court to be justified and restore same.
(c) Bail-Cancellation of-Notice should always be sent to accused well in advance of date
of hearing-- Criminal Procedure Code (V of 1898), S. 497.
Mian Mahmood Ali Qasuri for Petitioner.

Raja Said Akbar, Advocate-General for the State.
ORDER
This Petition seeks suspension of an order passed by a Bench of this Court on the 27th of
June 1968, by which while granting leave to appeal in Petitions Nos. 194/68 and 207/68,
filed by the complainant Riasat Ali and the State respectively-both directed against the
order of bail granted to the petitioner by a learned Single Judge of the High Court of West
Pakistan, Lahore, it was ordered that non-bailable warrants should immediately issue
against the petitioner-Ghulam Muhammad, returnable to the District Magistrate,
Sahiwal.
The ground on which bail was granted by the High Court to the petitioner namely that
the learned Inquiry Magistrate was sitting over the proceedings in the case for the last 6
months without having examined a single witness and the case was being adjourned on
every occasion causing unnecessary harassment to the petitioner, was found to be
factually incorrect apart from its being not one of the grounds on which the petition for
bail was based.
The case relates to the murder of two persons-Jhanda and Muhammad Shafi, by causing
fire-arm injuries to them in broad day-light, for which the charge was laid against 10
persons including the petitioner, one of whom is still absconding. The occurrence took
place on the 19th of November 1967. The petitioner and 6 other accused persons were
arrested on the 25th of November 1967. Two of the accused persons namely Rahmat Ali
and Mahboob Ilahi could not be arrested before the 18th December 1967. Proceedings
under section 88, Cr. P. C., were taken against Muhammad Yar, the accused who is still
at large. An incomplete challan was put in Court on the 17th of December 1967 followed
by a complete challan on the 2nd of March 1968 which was subsequently amended by the
transposition of one of the accused persons namely Zaffar Sawar as a suspect in column
No. 2 instead of being named in column No. 4, as according to the report of the Crimes
Branch, he was stated to be innocent.
It appears that some adjournments were caused in the case for the non-production of the
accused persons in the Court on some hearings due to an epidemic having spread in the
jail where they were lodged. One or two adjournments were caused in the case for
summoning the constable who had tried to trace Yaroo, the absconding accused in order
to proceed against him under section 5 1 2 of the Cr. P. C. It seems that one or two more
adjournments were occasioned because of the absence of the Presiding Officer from the
Court for one reason or another. It would thus appear that the observation of the learned
Single Judge that the Committing Court was sitting over the case without having
recorded any evidence, was not grounded on facts. In the circumstances it would be
unjustified to put any blame on the Committing Court for indifference or inactivity in
proceeding with the case. Inordinate delay in the prosecution of a case, if not explained
by the prosecution amounting to an abuse of the process of law, can be considered as a
ground for bailing out an accused person even in a murder case depending on the nature
of the delay and the circumstances that have caused it. The prosecution is expected to
proceed with its case with all despatch eliminating every avoidable delay in order to
bring it to a close and thus to determine the fate of an accused person which hangs in the
balance as long as the proceedings do not terminate one way or the other. The prosecution
cannot be permitted to enlist the will of the Court on its side directly or indirectly in
prolonging the worries and harassment of an accused person which are inevitably caused
by his protracted detention without trial. Leisurely steps taken in filing the challan, tardy
and halting production of evidence or seeking of unnecessary adjournments, except those
necessitated by force of circumstances must be strongly deprecated. But delay in the
prosecution of a case or the procrastination of the proceeding in a trial furnishing as a
ground for bail have to be weighed and judged in each case on its own merits represented
acceptance of the fact that a mistake had been made in appointing him to a post for the
requirements of which he did not possess the necessary ability, and the conclusion to that
effect was not reached hastily or on any ulterior ground, but after actual trial and issue
of a notice to the appellant that he was under special report for the purpose of judging
whether he could prove his adequacy for the post. Therefore, nothing in the nature of a
punishment was involved in his removal. He had sufficient notice of the fact that he was
liable to lose his appointment on the ground of his inadequacy, and had been informed
of the method in which he could prove that he was possessed of the necessary ability for
the higher post to which he had been appointed. Absence of any victimization or personal
prejudice is apparent from the fact that he was restored to his earlier appointment, which
was in Class II service, and that he has been retained in that service for the past seven
years, and eventually has been promoted to Class I. The treatment of the appellant by the
West Pakistan Government, has throughout been bona fide, and in these circumstances,
the application to him at an early stage of his service in the new post of the condition of
termination by notice appears to have been thoroughly proper. His writ petition calling
in question the legality of such termination was rightly rejected."
Capt. Muhammad Azhar v. Commissioner of Karachi P L D 1966 S C 253; Abdul Majid

Sheikh v. Mushafe ,4hmed P L D 1965 S C 208 and Ghulam Sarwar v. Pakistan P L D 1962
S C 142 distinguished.
Shamim Ahmad Mirza, Advocate Supreme Court instructed by Tanvir Ahmad, Attorney
for Appellant.
Raja Said Akbar Khan, Advocate-General West Pakistan (R. S. Sidhwa, Advocate
Supreme Court with him) instructed by Ijaz Ali, Attorney for Respondent.
Date of hearing : 1st December 1967.
JUDGMENT
CORNELIUS, C. J.-The appellant Muhammad Mumtaz Khan was holding a post in Class
II Service of the Province of West Pakistan as Development Officer in the Industries
Directorate when after a successful appearance before the Provincial Public Service
Commission, he was appointed in a temporary capacity to a Class I post as Progress
Officer in the Planning and Development Department, on specified terms of which the
following are relevant :-
(1) the post was a. temporary post in the Junior Class I scale ;
(2) although temporary, the post was likely to continue indefinitely ;
(3) the appointee was liable to serve anywhere in Pakistan ;
(4) the appointment was liable to be terminated at any time on a month's notice on either
side; and
(5) the appointee in respect of his general conditions of service would be governed by the
old Civil Service Rules (Punjab) as amended by any rules or orders issued by the West
Pakistan Government until such time as a fresh set of West Pakistan Civil Service Rules
should be promulgated.
On the 22nd October 1959, he received a letter written on behalf of the Commissioner
(Development) and Secretary to the Government of Pakistan, Planning and Development
Department saying that he had failed to give a satisfactory account of himself "during the
brief tenure of your office as Progress Officer (General)" and he was therefore being
placed on "special report for a period of three months during which you will have an
opportunity to improve your work". If his work continued to be unsatisfactory after the
expiry of the period of three months, action would be taken to terminate his service by
notice as specified in his conditions of appointment. On the 4th February 1960, an order
was issued by the Commissioner (Development) and Secretary to the Government which
said that the Government had decided to terminate the appellants service by notice and
he was accordingly given a month's notice. At the expiry of this period of a month, the
appellant was taken back by the Industries Department in his previous post, and it
appears that he has been in continuous employment in that Department ever since. It was
stated at the hearing that recently he had been promoted to Class I Service.
The appellant made a representation to the Commissioner (Development) against the

notice he had received, on the 16th February 1960, which was rejected by that officer on
the 29th February. He made a representation thereafter to the Governor asking for
reinstatement in his post of Progress Officer, which was rejected on the 10th September
1961. Thereafter, he filed an appeal to the Governor to which it was stated he received no
reply. He then moved a writ petition in the High Court in which reference was made to
a further notice of termination of his services, which he received on the 16th August 1961
in the following terms :-
"Please take notice that in accordance with the terms of your service . . . . . your services
will stand terminated after one month from the date of receipt of this one month's notice.
By order of the Governor West Pakistan."
The earlier notice while it contained a reference to the relevant term in the appellant's
conditions of service and fixed the period of notice at one month, did not expressly say
that it was being issued by order of the Governor of -West Pakistan. In the Provincial
Government's written statement in reply to the writ petition, it was explained that the
second notice was issued because of certain doubts regarding the legality of the first
notice and accordingly the case was submitted directly to the Governor of West Pakistan,
who issued an order of termination by notice and thereafter the second notice was issued.
The Provincial Government further stated that although it "could be argued that
technically the termination of the petitioner's services became effective from the 16th
September 1961"s nevertheless it was not possible to reinstate him as Progress Officer in
the relevant Department "for the period in question." It is of some importance to note that
in his writ petition, it was nowhere suggested that the termination of service was due to
some prejudice against him or that it was an act of victimization or that the real motive
for the Government action had not been correctly stated. In the arguments before us
learned counsel for the appellant tried to say that the termi nation was due to prejudice
against the appellant entertained by an American Adviser in the Industries Department,
who had sat with the Public Service Commission at the viva voce) examination which
had led to his being selected despite the opposition of the said adviser. We find that no
mention of this was made by the appellant either in his writ petition, or in his petition to
this Court for Special Leave to Appeal against) the judgment of the High Court
dismissing the writ petition. We therefore decline to examine the case from this aspect.
Special Leave to Appeal was granted to the petitioner to consider the contention that
because his employment was in a post, which though temporary was to continue for an
indefinite period, he could not be regarded as a temporary officer and his services could
therefore not be terminated by notice.
Mr. Shamim Ahmad Mirza has argued the case on behalf of the appellant, and has
attempted to rely on certain earlier decisions in service cases by this Court, in particular
the cases of Capt. Muhammad Azhar (P L D 1966 S C 253) of Abdul Majld (P L D 1965 S
C 208) and of Ghulam Sarwar (3). The case of Ghulam Sarwar was entirely different from
the case for Ghulam Sarwar held a permanent post in a permanent service and although
he had entered the service on terms, which enabled termination thereon by one month's
notice, it was held that his removal by notice under that contract required compliance
with the provisions of section 240 (P L D 1962 S C 142) of the Government of India Act,
1935. There was also an element of victimization in that case by superior Officers to whom
Ghulam Sarwar had given offence. The case of Abdul Majid was one of a civilian Gazetted
Officer working in the Ministry of Defence, from a date in 1954 until on the 29th August
1953, when he was given 14 days' notice of discharge. It was found in that case that the
post which he held at the termination of his service was sanctioned on a permanent basis
and although his appointment thereto was expressly described as temporary,
nevertheless it had been made clear from the outset that it was to be of indefinite duration.
In these circumstances, it was held that the mere fact that his appoint ment to his last post
was "until further orders" did not deprive him of the constitutional right to an
opportunity to show cause against his removal. The civil servant in that case had
successfully undergone more than one period of probation in the course of his service.
There was also an element of prejudice on account of his having been involved in a
dispute over a technical matter between himself and his immediate superior In his last
post in the Pakistan Naval Dockyard. In the case of Capt. Muhammad Azhar, it was
found that his dismissal from service had been ordered by an authority, which was not
competent to remove him from service, and further that there had been no reference of
his case to the Central Public Service Commission as his terms of service required.
In the present case, the appellant's tenure of the Class I post of Progress Officer clearly
contained no element of permanency for the post itself was temporary and he had been
appointed to it in a temporary capacity. His removal from that post was effected in an
entirely straightforward manner, on the basis that his work showed that he was
inadequate to the requirements of the post. He had been informed of this at an
intermediate stage, and given an opportunity to show better work over a period of three
months. On account of his failure to do better, his services were terminated in the Class I
appointment, and he was restored to his original Class II appointment for which at the
state his efficiency had then reached, he appears to have been suitable. His removal was
in no since a punishment. It represented acceptance of the fact that a mistake bad been
made in appointing him to a post for the requirements of which he did not possess the
necessary ability, and the conclusion to that effect was not reached hastily or on any
ulterior ground, but after actual trial and issue of a notice to the appellant that he was
under special report for the purpose of judging whether he could prove his adequacy for
the post. Therefore, nothing in the nature of a punishment was involved in his removal.
He had sufficient notice of the fact that he was liable to lose his appointment on the
ground of his inadequacy, and had been informed of the method in which he could prove
that he was possessed of the necessary ability for the higher post to which he had been
appointed. Absence of any victimization or personal prejudice is apparent from the fact
that he was restored to his earlier appointment, which was in Class II service, and that he
has been retained in that service for the past seven years, and eventually has been
promoted to Class I. The treatment of the appellant by the West Pakistan Government
has throughout been bona fide, and in these circumstances, the application to him at an
early stage of his service in the new post of the condition of termination by notice appears
to us to have been thoroughly proper. His writ petition calling in question the legality of
such termination was rightly rejected.
We find it necessary to add that in view of the Provincial Government's own admission
that its original notice of the 4th February 1960 was of doubtful legality and the action
that was taken to regularise the matter by issue of a fresh notice terminating the appellant
with effect from the 16th September 1961, the appellant may rightly claim the monetary
benefits of the notional retention in the Class I post between the 4th March 1960 and the
16th September 1961. We must not however be understood to be holding that the original
notice was in law ineffective, or that in the circumstances of this case, it was necessary for
the appellant's case to be placed before the Governor personally for an order of
termination of his service. We say so because we find that the earlier notice of termination
was issued in the name of the Department, and was signed by the Secretary to
Government in the relevant Department, and it could be argued in terms of Article 74(2)
of the 1956 Constitution that the action of the Government as represented by that notice
could not be called in question since it was authenticated by the signature of a Secretary
to the Governor. That point has however not been examined in the High Court and our
view expressed above that the appellant is entitled to certain benefits between the period
4th March 1960 and the 16th September 1961 is based solely on the admission made by
the Provincial Government in this particular case.
We accordingly dismiss the appeal, but in the circumstances made no order as to costs.
K. B. A. Appeal dismissed.
2023 S C M R 364
[Supreme Court of Pakistan]
Present: Jamal Khan Mandokhail, Muhammad Ali Mazhar and Syed Hasan Azhar
Rizvi, JJ
FAHAD HUSSAIN and another---Petitioners
Versus
STATE through Prosecutor General Sindh---Respondent
Criminal Petition No. 167-K of 2022, decided on 28th December, 2022.
(On appeal against the order dated 27.10.2022 passed by the High Court of Sindh,
Circuit Court, Larkana in Criminal Bail Application No. S-232 of 2022)
----Ss. 498 & 497(2)---Penal Code (XLV of 1860), Ss. 302 & 34---Constitution of Pakistan,
Art. 185(3)---Qatl-i-amd, common intention---Ad interim pre-arrest bail, confirmation
of---Further inquiry---According to the FIR, the incident occurred on 11.4.2022, while
the FIR was lodged by the complainant on 20.4.2022---Though the complainant
attributed the cause of delay to the police that after some protest the FIR was lodged
but no details of the alleged protest were mentioned---Complainant has narrated in
the FIR that when he along with his mother and brother reached the house of his
deceased sister, they heard hue and cry from her room and when they entered the
room, the accused was asphyxiating her, while the two co-accused persons were
holding her hands and feet; that upon seeing this the complainant and his brother and
mother raised cries which attracted villagers due to which the accused persons left the
house, however no name of any villager was mentioned in the FIR who came to the
scene of crime---Nothing was mentioned in the FIR that despite presence of the
complainant and his brother along with the mother at the crime scene, whether any
efforts were made by them to overpower the culprits in order to save the life of the
deceased---According to the complainant, the post-mortem could not be conducted
due to the non-availability of a lady doctor, hence the deceased was buried without
conducting a post-mortem---On the contrary, according to the interim report filed
under section 173, Cr.P.C, parents of the deceased mentioned the incident as a suicide,
and it was further mentioned that letter for postmortem was issued but the
complainant and his brothers did not allow the doctor to conduct postmortem and
thereafter, the parents of the deceased forcibly took the dead body from hospital and
buried it without postmortem---Said interim report further stated that the
complainant had not produced eye-witness of the case to record their statement hence
investigation was not concluded---Special Medical Board constituted for the
postmortem unanimously concluded that the cause of death of the exhumed dead
body of the deceased remained undetermined---Question as to whether present case
was a case of suicide or murder, could only be resolved and determined by the trial
court after full-fledged trial of the case---Keeping in view the present set of
circumstances, the case of the accused persons required further inquiry---Petition for
leave to appeal was converted into an appeal and allowed, and ad-interim pre-arrest
bail already granted by the Supreme Court was confirmed.
----S. 497(2)--- Bail--- Further inquiry--- Scope--- Perception and discernment of the
expression "further inquiry" is a question which must have some nexus with the result
of the case and it also pre-supposes the tentative assessment which may create doubt
with respect to the involvement of accused in the crime.
(c) Criminal Procedure Code (V of 1898)---
----Ss. 497 & 498---Bail---Benefit of doubt---Benefit of doubt can be extended to the
accused even at the bail stage.
----Ss. 497& 498--- Bail--- Proof beyond reasonable doubt--- Basic philosophy of
criminal jurisprudence is that the prosecution has to prove its case beyond reasonable
doubt and this principle applies at all stages including pre-trial and even at the time
of deciding whether accused is entitled to bail or not.
----S. 497(1)---Bail---"Reasonable grounds" for believing that accused has been guilty
of an offence punishable with death or imprisonment for life or imprisonment for ten
years---Scope---Reasonable grounds are those which may appeal to a reasonable
judicial mind, as opposed to merely capricious, irrational, concocted and/or illusory
grounds---However, for deciding the prayer of an accused for bail, the question
whether or not there exist reasonable grounds for believing that he has committed the
alleged offence cannot be decided in a vacuum.
Muhammad Sachal R. Awan, Advocate Supreme Court for Petitioner.
Complainant in person.
Hussain Bux Baloch, Additional Prosecutor General, Sindh for the State.
Date of hearing: 28th December, 2022.
JUDGMENT
MUHAMMAD ALI MAZHAR, J.---By dint of this Criminal Petition, the petitioners
have called in question the order dated 27.10.2022 passed by the High Court of Sindh,
Circuit Court, Larkana in Criminal Bail Application No. S-232 of 2022 whereby the
petitioners' application for pre-arrest bail was dismissed and ad-interim bail order
was recalled in FIR No. 23 of 2022 dated 11.04.2022, lodged under sections 302 and 34,
P.P.C. at Police Station Kakar, District Dadu.
2. The pith and substance of case as divulged from the contents of FIR, are that the
complainant's sister, Mst. Nirma ("deceased"), was married to Fahad Hussain
("petitioner No. 1") about sixteen or seventeen months prior to the incident. It was
further alleged that the attitude of his brother in-law, the petitioner No. 1, was not
good and he had illicit relationships with other women, which perturbed the deceased
who tried to prevent the petitioner No.1 from such activities which annoyed him and
led to him extending threats to the deceased that he will kill her. The complainant also
alleged that the deceased complained to her father-in-law but he did not take any
action and asked her to remain silent. On 10.4.2022 at about 8.00 p.m., the deceased
called the complainant and informed him that the petitioner No. 1, along with the
other accused Muhammad Khan and Mst. Hazooran were threatening to murder her,
therefore, the complainant, his mother, Mst. Noor Khatoon, and his brother, Shahid
Ali, left Kotri for village Ali Bux Junejo and on 11.04.2022 at about 4.30 a.m., they
reached the house of his sister, the deceased, and heard cries coming from her room.
When they entered the room, they saw that the accused petitioner No.1 was
strangulating her with a Reshmi Dupata, (silk scarf) while the accused Mst.Hazooran
had caught hold of the hands of the deceased and accused Muhammad Khan had
caught hold of her legs. Upon seeing this, the complainant, his brother and his mother
raised cries, causing the other villagers to come and consequently, the accused persons
vacated the house and went away. The complainant party found marks of violence on
her chest, arms and leg and discovered that Mst. Nirma had died. It was further
alleged that the matter was conveyed to Kakar Police who came and took the dead
body but, due to the non-availability of a lady doctor, no post-mortem was conducted,
thereafter, the complainant brought the dead body to the village and buried the same
and went to lodge an FIR which was initially not registered, however, after making
some protest, the FIR was registered.
3. The learned counsel for the petitioners argued that the prosecution story is
unbelievable. It was further averred that the FIR was lodged after a delay of 9 days
without any plausible explanation. He further argued that the deceased committed
suicide in the absence of her husband, the petitioner No. 1, and that when the suicide
was committed, the deceased's brother, namely Shahid Ali, was present in the house
of the petitioner No. 1, and it was the deceased's brother who removed the dead body
and then informed the petitioner No.1 who was at the shop. He further argued that
even while answering a media reporter, the brother of the deceased disclosed that his
sister had committed suicide. He further argued that the complainant party did not
allow the doctors to conduct a post-mortem and they remained silent. He further
argued that no efforts were made by the complainant party to overpower the accused
persons if they were committing the deceased's murder in the presence of the
complainant party at the alleged scene of crime. He concluded that the case requires
further inquiry and the petitioners are entitled to the confirmation of ad-interim bail
as they have been implicated with mala fide intention in order to humiliate and
disgrace them on the instigation of the complainant.
4. The Additional Prosecutor General, Sindh argued that, keeping in view the final
conclusion drawn by the Special Medical Board in the Post-mortem Report of the
exhumed body of the deceased the cause of death could not be determined, so at this
stage it could not be resolved whether it was a case of murder or suicide.
5. Heard the arguments. According to the FIR, the incident occurred on 11.04.2022
at 4:30 a.m., while the FIR was lodged by the complainant on 20.04.2022, though the
complainant attributed the cause of delay to the police that after some protest the FIR
was lodged but no details of the alleged protest are mentioned. The complainant has
narrated in the FIR that when he along with his mother, Mst. Noor Khatoon, and
brother, Shahid Ali, reached the house of the deceased, they heard a hue and cry from
her room and when they entered the room, the petitioner No. 1 was asphyxiating her,
while Mst. Hazooran was sitting over the deceased holding her hands and
Muhammad Khan was holding her feet to immobilize her. Upon seeing this the
complainant and his brother and mother raised cries which attracted villagers due to
which the accused persons left the house but no name of any villager is mentioned in
the FIR who came at the scene of crime. Nothing is mentioned in the FIR that despite
presence of the complainant and his brother along with the mother at the crime scene,
whether any efforts were made by them to overpower the culprits in order to save the
life of the deceased. According to the complainant, the post-mortem could not be
conducted due to the non-availability of a lady doctor, hence the deceased was buried
without conducting a post-mortem. On the contrary, according to the interim report
filed under section 173, Cr.P.C dated 20.4.2022, the parents of the deceased shown the
incident as suicide. It is further mentioned that letter for postmortem was issued but
the complainant and his brothers did not allow the doctor to conduct postmortem and
thereafter, the parents of the deceased forcibly took the dead body from hospital and
buried it without postmortem. It is further stated in the report that the complainant
has not produced eye-witness of the case to record their statement hence investigation
was not concluded. According to the Scrutiny Memo of the Assistant District Public
Prosecutor, Dadu dated 15.08.2022 appended to the police papers, the dead body of
the deceased was exhumed in compliance of the order dated 30.04.2022 passed by the
learned IInd Judicial Magistrate, K.N. Shah, on 02.06.2022 in the presence of mashirs
(witnesses) and the post-mortem was conducted on the same day. Following the post-
mortem, the Special Medical Board constituted for the post mortem tendered a
provisional conclusion wherein they rendered unanimous opinion that at this belated
stage the soft tissues of the neck and other sites were decomposed and only hard
tissues were found intact. It was further opined that no anatomical cause of death
attributable to violence over neck and other parts of body could be ascertained,
however, it was mentioned that final report will be communicated after receiving the
Chemical Examiner's Report. After receiving the Chemical Examiner's Report dated
04.07.2022, the Special Medical Board unanimously concluded that the cause of death
of the exhumed dead body of the deceased remained undetermined.
6. The perception and discernment of the expression "further inquiry" is a question
which must have some nexus with the result of the case and it also pre-supposes the
tentative assessment which may create doubt with respect to the involvement of
accused in the crime. The raison d'etre of setting the law into motion in criminal cases
is to make an accused face the trial and not to punish an under trial prisoner or let him
rot behind the bars. It is a well settled principle of the administration of justice in
criminal law that every accused is innocent until his guilt is proved and this benefit of
doubt can be extended to the accused even at the bail stage, if the facts of the case so
warrant. The basic philosophy of criminal jurisprudence is that the prosecution has to
prove its case beyond reasonable doubt and this principle applies at all stages
including pre-trial and even at the time of deciding whether accused is entitled to bail
or not which is not a static law but growing all the time, moulding itself according to
the exigencies of the time. In order to ascertain whether reasonable grounds exist or
not, the Court should not probe into the merits of the case, but restrict itself to the
material placed before it by the prosecution to see whether some tangible evidence is
available against the accused person(s). Reasonable grounds are those which may
appeal to a reasonable judicial mind, as opposed to merely capricious, irrational,
concocted and/or illusory grounds. However, for deciding the prayer of an accused
for bail, the question whether or not there exist reasonable grounds for believing that
he has committed the alleged offence cannot be decided in a vacuum.
7. In the case of Aamir Bashir and another v. The State and others (2017 SCMR 2060),
this Court held that besides making out a prima-facie case for the grant of pre-arrest
bail, the accused petitioner has to show some mala fide on the part of the complainant
and the investigating agency, motivated by caprice and ulterior motive to humiliate
and disgrace the accused person in case of arrest, however, at bail stage, except in very
rare cases, it is difficult for an accused person to furnish tangible proof about the
element of mala fide or foul play on the part of the complainant or the arresting
agencies, therefore the Court has to look at the material available on record and draw
inferences therefrom about the mala fide or ulterior motive on account of which the
intended arrest of the accused is motivated. The Court also reiterated the guiding
principles laid down in the case of Khalid Javed Gillan v. The State (PLD 1978 SC 256),
that while deciding bail petitions only a tentative assessment of the material and facts
available on record is to be made and deeper appreciation of the same shall be avoided
and that any fact which may not be sufficient to cast doubt of absolute nature on the
prosecution case, but equally sufficient to be considered for grant of bail, cannot be
lightly ignored.
8. We have cautiously scanned and ruminated the material placed on record and
reached to a tentative assessment that whether it is a case of suicide or murder, this
can only be resolved and determined by the trial court after full-fledged trial of the
case but keeping in view the present set of circumstances, the case of the petitioners
requires further inquiry.
9. As a result thereof, this criminal petition is converted into an appeal and allowed.
The ad-interim pre-arrest bail already granted by this Court on 20.12.2022 is hereby
confirmed on the same terms. It is emphasized that the observations made by us are
tentative in nature and shall not prejudice the case of either party before the Trial
Court. The petitioners are directed to join the investigation and regularly appear in
the Trial Court. In case they misuse the concession of bail, the learned Trial Court will
be at liberty to cancel the bail.
MWA/F-1/SC Bail confirmed.

Bail Principle

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Bail Principle

Uploaded by

Copyright:

Available Formats

P L D 1995 Supreme Court 34

Present: Mir Hazar Khan Khoso and Muhammad Munir Khan, JJ

TARIQ BASHIR and 5 others---Petitioners

(a) Criminal Procedure Code (V of 1898)---

(b) Criminal Procedure Code (V of 19138)---

----S. 497---Bail-_-Under-trial accused of bailable. offences---Remand on failure to furnish

Many under-trial accused of bailable offences and preventive offences i.e.-

(c) Criminal Procedure Code (V of 1898)-._

(d) Criminal Procedure Code (V of 1898)---

----S. 497---Bail---Accused of offences punishable with death, or imprisonment for life, or

As regards offences, punishable with death, or imprisonment for life, or

(e) Criminal Procedure Code (V of 1898)---

____s, 497(5)---Bail---Cancellation---Grant of bail and cancellation thereof--

(f) Criminal Procedure Code (V of 1898)---

----S. 497---Bail---Offence allegedly committed by accused punishable with death;

(h) Criminal Procedure Code (V of 1898)--

Kh. Naveed Ahmad, Advocate instructed by Faizanul Haq, Advocate- on-Record

Abdul Ghafur Mangi, Additional Advocate-General, Sindh for the State

MUHAMMAD MUNIR KHAN, J: --This petition for leave to appeal is directed

4. Learned Additional Advocate-General has half-heartedly supported the order of

(a) where there is likelihood of abscondcace of the accused;

(d) where the accused is a previous convict.

7. As regards the first category of offences (punishable with death, or imprisonment

Present: Mir Hazar Khan Khoso and Muhammad Munir Khan, JJ

TARIQ BASHIR and 5 others---Petitioners

(a) Criminal Procedure Code (V of 1898)---

(b) Criminal Procedure Code (V of 19138)---

----S. 497---Bail-_-Under-trial accused of bailable. offences---Remand on failure to furnish

Many under-trial accused of bailable offences and preventive offences i.e.-

(c) Criminal Procedure Code (V of 1898)-._

(d) Criminal Procedure Code (V of 1898)---

----S. 497---Bail---Accused of offences punishable with death, or imprisonment for life, or

As regards offences, punishable with death, or imprisonment for life, or

(e) Criminal Procedure Code (V of 1898)---

____s, 497(5)---Bail---Cancellation---Grant of bail and cancellation thereof--

(f) Criminal Procedure Code (V of 1898)---

----S. 497---Bail---Offence allegedly committed by accused punishable with death;

(h) Criminal Procedure Code (V of 1898)--

Kh. Naveed Ahmad, Advocate instructed by Faizanul Haq, Advocate- on-Record

Abdul Ghafur Mangi, Additional Advocate-General, Sindh for the State

MUHAMMAD MUNIR KHAN, J: --This petition for leave to appeal is directed

4. Learned Additional Advocate-General has half-heartedly supported the order of

(a) where there is likelihood of abscondcace of the accused;

(d) where the accused is a previous convict.

7. As regards the first category of offences (punishable with death, or imprisonment

P L D 1962 Supreme Court 495

Present : A. R. Cornelius, C. J., B. Z. Kaikaus and

Criminal Appeal No. 78 of 1962, decided on 8th October 1962.

(a) Bail--------Application for-Surrender of applicant, condition precedent for

Date of hearing : 9th July 1962.

Before entering upon an examination of the above,, arguments it is necessary to mention

A.H. Appeal allowed.

Present: Sajjad Ahmad, J

(1) GHULAM MUHAMMAD AND

(2) Tim STATE-Respondents

(a) Criminal Procedure Code (V of 1898), S. 497-Bail in non bailable offence-Delay in

Inordinate delay in the prosecution of a case, if not explained by the prosecution

Mian Mahmood Ali Qasuri for Petitioner.

Capt. Muhammad Azhar v. Commissioner of Karachi P L D 1966 S C 253; Abdul Majid

Date of hearing : 1st December 1967.

(2) although temporary, the post was likely to continue indefinitely ;

(3) the appointee was liable to serve anywhere in Pakistan ;

The appellant made a representation to the Commissioner (Development) against the