Bail and Bonds | Prosecutor General

GENERAL PRINCIPLES FOR GRANT OF BAIL

A Court considering a bail application has to tentatively look to the facts and circumstances of the case and once it comes to the conclusion that no reasonable ground exists for believing that the accused has committed a non-bailable offence, it has the discretion to release the accused on bail. 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 which if left, unrebutted, may lead to inference of guilt. Mere accusation of non-bailable offence would not be sufficient to disentitle an accused from being bailed out. There should be reasonable grounds as distinguished from mere allegation of suspicion. However, strong the suspicion may be, it would not take the place of reasonable ground. The words "reasonable grounds" are words of higher import and significance than the word "suspicion". It is for the prosecution to show reasonable grounds to believe that the accused has committed the crime. If the Court is not satisfied with the material placed before it that there exist reasonable grounds to believe that the accused is guilty, then the Court has the discretion to grant bail.

Where the liberty of a citizen is involved, the action initiated by the police/prosecution is found to be mala fide and intended to extract evidence or information from the detenu the superior Courts should not be reluctant to step in and grant relief to the citizen. 1994 SCMR 1283, Govt. of Sindh v. Reesa Farooq and 5 others.

----S. 498---Pre-arrest bail, grant of---Principles---Grant of pre-arrest bail was a remedy rooted into equity, at a cost to hamper the investigation---Such judicial protection was extended solely to save the innocent from the horrors of abuse of process of law with a view to protect his dignity and honour---Said remedy could not be granted in every run of the mill criminal case, particularly to an accused facing prima facie charges structured upon material/evidence, warranting custody, that too, on the basis of positions/pleas, verification whereof, was consequent upon recording of evidence. 2020 S C M R 249

PRINCIPLES FOR GRANT OF BAIL IN NON-BAILABLE OFFENCES:

Bail should never be withheld as a punishment. In cases of non-bailable offences grant of bail is primarily in the discretion of the Courts to be exercised with due care and caution taking into account the facts and circumstances of each case. Orders on bail application should not be considered as routine orders, as the liberties of the citizens are involved. They must be carefully balanced and weighed in the scales of justice and requirements of relevant law as laid down in sections 496, 497 and 498 Cr.P.C. In cases punishable with death, life imprisonment and imprisonment exceeding 10 years the accused shall not be released on bail if there appear reasonable grounds for believing that he has committed such an offence. "Reasonable grounds" is an expression which connotes that the grounds be such as would appeal to a reasonable man for connecting the accused with the crime with which he is charged. "Ground" is a word of higher import than "suspicion." However, strong a suspicion may be, it would not take the place of reasonable grounds. Grounds will have to be tested by reason for their acceptance or rejection. The reasonableness of the grounds has to be shown by the prosecution by displaying its cards to the Court as it may possess or is expecting to possess as demonstrating evidence available in the case both direct and circumstantial. If such grounds exist tending to connect the accused with the crime, bail should be refused, without going into deeper appreciation of the merits of those grounds and the evidence on which they are based which functions are to be assumed at the trial stage. If the charge is found to be groundless; not supported by evidence; and instead of grounds being reasonable their absurdity stands exposed on a plan view, or the charge on its face appears to be a minor one which is not punishable with death or life imprisonment, as for example, where it is a case of accidental or unintended death caused by simple hurt, the limitation on the Court's discretion is removed which must then be freely exercised in favour of the accused for the grant of bail. Similarly, where reasonable grounds are not disclosed but the grounds do exist for further investigation and inquiry into the guilt of the accused the case will fall u/S. 497 (2) Cr.P.C. in which case bail should not be withheld.

Even for the purpose of bail, the law is not to be stretched in favour of the prosecution and any benefit of doubt arising in the case must go to the accused. 1995 SCMR 387, Sikandar A. Karim.

Matters to be considered for grant of bail:

(1) Whether there are reasonable grounds for believing that the accused has committed the offence.

(2) Nature and gravity of the charge.

(3) Severity of punishment in case of conviction.

(4) Apprehension of abscondence when released on bail.

(5) The character, the means and the standing of the accused.

(6) Danger of witnesses being tampered with.

(7) Opportunity to the petitioner to prepare his defence.

(8) The period for which the petitioner has been in jail and when the trial is likely to conclude.

(9) Whether the petitioner is named in the FIR or his description is given in it.

(10) Time taken in lodging the FIR, whether prompt.

(11) Whether the accused is a previous convict.

(12) Whether reasonable possibility of false implication of the accused/petitioner cannot be ruled out. PLD 1997 Kar. 165, Sajjad Hussain.

Considerations for grant of bail.

(1) Every accused presumed not to be guilty. (2) Process of trial should not be allowed to be defeated. (3) Possibility of commission of further offences to be safeguarded. PLD 1963 Lah. 279 Iqbal.

Factors to be considered at bail stage: In cases of offences, punishable with death, imprisonment for life or imprisonment for ten years: (1) Benefit of reasonable doubt, (2) Identity of the accused, (3) Part allegedly played by the accused in the occurrence, (4) His presence at the spot and question of vicarious liability would be considered at bail stage. PLD 1995 SC 34. Tariq Bashir etc.

While deciding bail application the Court should consider:

(1) Allegations made in the FIR,

(2) Statements made in the FIR,

(3) Other incriminating material against the accused.

(4) Plea raised by the accused.

PLJ 1997 Shariat Court (AJK) 23, Muhammad Sadiq v. Muhammad Arshad.

Supreme Court for bail. Supreme Court is primarily a constitutional Court and is not expected to go into matters concerning grant of bail by High Courts (SC) PLD 1977 SC 642. Sultan Khan v. Amir Khan etc.

Discretion of Supreme Court in bail matters: It is not a rule that if High Court has exercised its discretion in granting or refusing bail to a party Supreme Court would not interfere. Any discretion exercised in violation of recognised principles of justice is liable to be set a side. Discretion should not be based on whims, inferences, suspicions and mere allegations. When High Court did not exercise discretion properly because inferences were drawn by enumerating allegations without even prima facie examining facts tentatively, the order was set aside, and bail allowed. PLJ 1995 S.C. 396, Ch. Shujat Hussain 1995 SCMR 1249.

Bail not to be withheld as punishment. Orders on bail applications should not be considered as routine orders; involving as they do the liberty of the citizens. They must be carefully balanced and weighed in the scales of justice. However, strong a suspicion may be, it would not take the place of reasonable grounds. The reasonableness of the ground has to be shown by the prosecution by displaying its cards to the Court. Where grounds exist for further inquiry into the guilt of the accused bail should not be withheld. In order to ascertain whether reasonable grounds exist under section 497 (2), Cr.P.C. the Court has of necessity to look into the material available (e.g.) FIR statements under section 161, Cr.P.C. medico-legal report, recoveries etc. (SC) PLD 1968 349 Abdul Malik v. State.

Punishment. Save in grave offences refusal to admit a person to bail means punishment without trial. Custody is never meant to be a punishment; it is designed to facilitate investigation or trial by making the accused available. PLJ 1976 SC 371 Zahoor Elahi.

Allegations in FIR and the evidence collected to be given due weight in deciding bail matter and the nature of the offence and the punishment of it is to be considered. 1994 SCMR 1964, Muhammad Nawaz Khan v. Ghulam Ahmed etc.

Meaning of bail. Bail is release of a person from the custody of police and delivery into the hands of sureties, who undertake to produce him in Court whenever required to do so. (FC) PLD 1953 FC 170 Crown v. Khushi Muhammad.

"Appears" meaning of under sections 496 and 497, Cr.P.C. Word "appears" in sections 496 and 497, Cr.P.C. means appearing in response to a process. Voluntary appearance not included. (SC) PLD 1966 SC 1003 Muhammad Ayub v. Muhammad Yaqub.

Bail means curtailment of liberties, when custody is handed over to his sureties. PLJ 1980 SC 318, Said Mian v. Mian Said.

"Released on bail" and "admitted to bail" are synonymous terms. PLD 1966 SC 1003 Muhammad Ayub.

"Reasons to believe" in sec. 497 Cr.P.C. can be classified at a higher pedestal than mere suspicion and allegation, but not equivalent to proved evidence. Even strongest suspicion cannot be transformed to "Reason to believe". The criteria is that some tangible evidence is available against the accused, which if left unrebutted may lead to inference of guilt. PLJ 1995 SC 396, Ch. Shujat Hussain 1995 SCMR 1249.

Reasonable grounds for bail are grounds which appeal to a reasonable and prudent man. PLD 1995 S.C. 34, Tariq Bashir, etc.

Magistrate not to grant bail after further evidence; when the bail is refused by High Court; without referring the case to the High Court. (SC) 1971 SCMR 374 Muhammad Nawaz v. Sakina.

Duty of counsel and client to inform the Court whether any other bail application was made earlier by the petitioner or his co-accused. (DB) PLD 1975 Lah. Abdul Ghafoor.

Early hearing suggested by the Supreme Court instead of bail, pending appeal in the High Court.(SC) 1976 SCMR 134 Wahid Bakhsh.

In emergency when citizen apprehends danger of life, liberty or dignity he can present application at the residence of the Chief Justice of High Court or in his absence to the Senior Puisne Judge, even at mid-night to seek speedy or effective remedy even when the High Court office is closed and it is holiday. PLD 1991 Lah. 224. State v. SSP Lahore.

Bail granted without application to the Court as the Court is empowered to grant bail. The Court is also empowered to release accused in Court to enable accused to execute personal bond before person authorised to take bond. NLR 1991 Cr. 276. Zarina.

Robbery of Rs. 7000, identification parade delayed. Money recovered not connected with the petitioner. Bail allowed u/S. 17(3) of Offence Against Property (Hudood) Ordinance, 1979. PLJ 1989 Cr.C. (Kar.) 139 Abdul Rashid.

Continued detention for recovery of money alone was not justified for offences u/Ss. 406, 409, 420, PPC, held expeditious trial and availability of accused was considered more proper. Bail allowed on furnishing ten sureties of Rs. 15,00,000, each to the satisfaction of the Court. 1990 SCMR 1194. Javed Iqbal Awan.

Observations in bail case by High Court are only of a tentative nature. Trial Court is not to be influenced by it. 1995 SCMR 1242, Mahmood Ahmed.

Statute carrying lesser punishment to be considered for purpose of bail when accused is charged under two different statutes. In the present case u/Ss. 3 & 4 of the Prohibition Order, 1979 read with sections 8 and 14 of Dangerous Drugs Act, 1930. Bail allowed. PLJ 1996 Cr.C. (Pesh.) 1277, Ghani-ur-Rehman.

Direction for expeditious disposal of inquiry proceedings issued by Supreme Court on the prayer of the counsel when bail not granted. (SC) PLD 1974 SC 40 = PLD 1974 SC 83 Iqbal-ur-Rehman.

No limitation for moving bail in the High Court after its rejection by Sessions Court as both the Courts have concurrent jurisdiction in the matter. PLD 1990 Pesh. 118 Muhammad Shafiq etc.

Bail application treated as petition for quashment. As sections 107/117 Cr.P.C. are not offences therefore the question of release of the petitioners on bail does not arise. Petitioners set at liberty. PLJ 1997 Cr.C. (Kar.) 605, Abdul Wahab.

A number of cases of robbery against the accused was not sufficient to deprive him of liberty. Mere production of cash by the accused in absence of any other evidence was not enough for involving him in case. Bail allowed. PLJ 1997 SC 1153, Muhammad Rafiq.

Mere suspicion against the accused is no ground for withholding bail. Bail allowed. PLJ 1988 SC 304. Hafiz Khuda Bakhsh.

Absence of separate place for detention of juvenile offender entitles him to bail NLR 1986 SC 721 Inam Ullah.

.ABETMENT

Allegation of abetment (Conspiracy) against the petitioner in case u/S. 302/34/109 PPC. Petitioners were not present at the time of occurrence. Held, allegation of prosecution would be scanned at the proper time. Bail allowed. PLJ 1996 Cr.C. (Lah.) 1526, Suleman etc.

Allegation of instigation to murder, bail granted by Sessions Court but cancelled by High Court. Held, when bails are granted for lalkara to commit crime, and whenever reasonable doubts arise about participation in crime, accused should not be deprived of benefit of bail. Bail allowed. PLJ 1996 S.C. 414, Syed Aman Ullah Shah.

ABSCONDENCE CASES

Long absence after bail is relevant even after all co-accused are acquitted, for his bail matter. 1985 SCMR 382. Ibrahim v. Hayat Gul etc.

Accused remained absonder for 22 months, bail cancelled. 1985 SCMR 1166. Akhtar Ali v. Azhar Ali Shah.

Abscondence of petitioner disentitles him to bail concession even if case does not fall in prohibitory clause of section 497, Cr.P.C. 1981 SC 93. Rao Qadeer Khan. PLJ 1981 SC 171.

Abscondence, noticeable and unexplained disentitles a person to bail notwithstanding the merits of the case. Accused cannot get the benefit when valuable evidence is lost or made impossible to be collected. PLJ 1985 SC 191. Awal Gul v. Zawar Khan etc. PLJ 1985 SC 243. Muhammad Sadiq v. Sadiq. also see PLJ 1985 SC 129 Ibrahim v. Hayat Gul.

Abscondance unexplained and noticeable disentitles the accused to the concession of bail not withstanding the merits of the case. 1998 SCMR 190, Sher Ali.

Abscondence of accused could be ignored even at the initial stage as some accused hide themselves fearing police coercion. Accused allowed bail for offences u/Ss. 392, 186, 324, 323 and 13-XX-65 as a case of further inquiry. (D.B) PLD 1996 Lah. 261, Ahmed Javed.

When proceedings u/Ss. 87 & 88 Cr.P.C. not taken bail is not to be cancelled on the ground of abscondence. Petition for cancellation of bail dismissed. 1989 SCMR 1987, Khan Mir v. Amal Sharin etc.

S. 497(5)---Penal Code (XLV of 1860), S. 302---Qatl-e-amd---Bail, cancellation of---ABSCONDANCE ---Accused remained absconder for 27 years and was released on bail after he was arrested---Validity---Accused was prima facie involved in commission of offence which fell within prohibitory clause of S.497, Cr.P.C.---High Court keeping in view the nature of crime and conduct of accused who remained absconder for about 27 years, did not find accused entitled to concession of bail---Court below did not assess material available on record in its true perspective while granting bail to accused---Bail was cancelled in circumstances. 2014 PCrLJ 1787 PESHAWAR-HIGH-COURT-NWFP

S. 497---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque--Copies of cheque in question and dishonouring slip were available with the prosecution which, prima facie, connected accused with commission of alleged offence---Accused remained a proclaimed offender for a considerable period as such, his conduct did not entitle him to bail---No mala fide or ill-will appeared on part of complainant to falsely involve accused---Although present case was not hit by prohibitory clause of S. 497(1), Cr.P.C, but in such cases grant of bail in every case was not a rule of universal application and each case had to be dealt with on its own facts and circumstances---Bail application of accused was dismissed in circumstances. 2013 YLR 626 ISLAMABAD

S. 497---Penal Code (XLV of 1860), Ss. 324/452---West Pakistan Arms Ordinance (XX of 1965), S.13---Qatl-a-amd, house trespass after preparation for hurt, assault or wrongful confinement, possession of illegal weapons----In view of the conduct of accused, his ABSCONDANCE for over ten years and the nature of the crime, it was not appropriate to release the accused on grounds of statutory delay in conclusion of his trial--- Bail application of accused was refused in circumstances. 2012 PLD 95 PESHAWAR-HIGH-COURT-NWFP

The petitioner absconded after the occurrence and was arrested by the police on 7-9-2010 and in the meanwhile a report under section 512, Cr.P.C. had been submitted against the accused before the court concerned after fulfillment of requirement of section 87, Cr.P.C. An absconder would lose some of his normal rights guaranteed under the substantive aswell as ordinary/procedural law. The police, after completion of investigation, filed complete challan under section 173, Cr.P.C. against the petitioner on 13-9-2010 which shows that the commencement of the trial of the accused is on the cards…….For what has been discussed above, I am not inclined to accept this application which, accordingly stands dismissed. 2011 YLR 540 LAHORE-HIGH-COURT-LAHORE

ABSCONDANCE of accused after the occurrence had disentitled him to some of his normal rights guaranteed under the substantive as well as procedural law---Complete challan having submitted in the Court, trial of accused was likely to commence---Bail was declined to accused, in circumstances. 2011 YLR 540 LAHORE-HIGH-COURT-LAHORE

S.498---Penal Code (XLV of 1860), Ss.302, 148 & 149---Pre-arrest bail, refusal of---F.I.R. in which accused were specifically named was lodged very promptly---Counsel for accused could not point out any solid material on the basis of which it could be held that accused had been named in the F.I.R. due to the mala fide of the police or the complainant---In absence of such mala fides, pre-arrest bail could not be granted to accused---All the eye-witnesses had supported the prosecution case during the investigation---Accused though were found innocent by the police and their names were placed in column No.2, but no solid material had been , pointed out on the basis of which accused were found innocent---Even otherwise. opinion of the police was not binding upon the courts-Accused remained fugitive from law for considerable period and after adopting all the legal formalities, accused were declared absconders-Long ABSCONDANCE of accused, could be used against them as additional evidence and fugitive from law would lose some of their normal rights---Accused having not been found entitled to the extraordinary relief of pre-arrest bail, their bail application was dismissed. 2008 YLR 16 LAHORE-HIGH-COURT-LAHORE

ACCOUNTS CASES AND MONEY INVOLVED

Large amount embezzled. Offence not being punishable with imprisonment over 10 years, the mere fact that the embezzled amount is large is not ground for refusing bail. 1978 SCMR 64; Ijaz Akhtar. PLJ 1978 SC 431.

Rs. 1,83,800.20 Govt. money misappropriated. Bail allowed as prosecution evidence consists of evidence which cannot be tampered with, secondly because case is not likely to be punished with imprisonment for 10 years or more. NLR 1983 Cr. 189 Abdul Hay-uz-Zafar.

Forged documents and account. Accused being put to trial for keeping forged stock register and to have made wrong entries in relevant books in order to cheat Government. Accused having to explain many questioned items and to brief their counsel and expert opinion also required on questioned documents. Some arrests of officials of department concerned also likely and investigation likely to prolong indefinitely. Bail granted for offences under sections 420, 468, 471, 477-A etc. 1972 P.Cr.LJ 188 Abdul Majid etc.

AFFIDAVITS OF P.Ws.

S. 302(b)/34---criminal Procedure Code (V of 1898), S. 345---Constitution of Pakistan, Art. 185(3)---Compromise---Accused had deposited Diyat amount in the court in the shape of Defence Saving Certificates in the names of the three minor legal heirs of the deceased---Major legal heirs of the deceased on the basis of the compromise arrived at between the parties had forgiven the accused in the name of Almighty Allah and had already sworn Affidavit s to that effect and they had no objection to the acquittal of accused---Accused were acquitted in circumstances. 2011 SCMR 1292 SUPREME-COURT

Affidavits of PWs who had been summoned by the Supreme Court supported by them when questioned, the PWs stated that the accused were innocent. Bail allowed. 1991 SCMR 111. Muhammad Nawaz.

Affidavits of mother and sister of deceased and statement u/S. 164 of first informant stating the accused to be innocent. Held, impact and value of these statements could not be appreciated at bail stage, however a case of further inquiry is made out entitling the accused to bail. 1979 SCMR 137 Allah Bakhsh v. Nazar Hussain. 1979 SCMR 30 Rehmat Ali.

Affidavit of eye-witnesses exculpating respondents, finding to such effect unexceptionable, case being of further inquiry bail not cancelled. 1979 SCMR 137 Allah Bakhsh v.Nazar Hussain Shah.

Affidavits of P.Ws. not supporting the prosecution case considered alongwith delay of 2 years 5 months. Bail granted to principal accused in murder case. 1979 P.Cr.LJ 1741 Shafqat Ali.

Mere filing of affidavits by the advocates would not attract the expression `further inquiry' nor would it amount to two versions. Trial Court to decide the value of affidavits. Bail cancelled. PLD 1990 SC 83. Mst. Bashiran Bibi v. Nisar Ahmed Khan etc.

Affidavits and report to police. Material on record connecting accused with the alleged crime. Allegations made by the appellants regarding threats to witnesses by the accused after their enlargement on bail duly supported by necessary affidavits and not controverted by respondent. Affidavits also corroborated by report made at police station. Held, High Court erred in refusing to cancel bail earlier granted to the accused. (SC) 1977 SCMR 30 Barkhurdar v. Kafayat Ali etc.

No tampering with record, held by Supreme Court, if appellants while they were admitted to bail, obtained affidavits of eye-witnesses, not supporting the prosecution case, when such eye-witnesses did not state that the affidavits had been obtained by coercion. Bail allowed by Supreme Court. 1988 SCMR 474, Muhammad Hayat.

AGE FACTOR AND FEMALES

Below 16 years of age. A person released on bail by Sessions Judge on the ground for his being below 16 years of age. Order granting bail not to be recalled after crossing over 16 years of age limit by the accused. Petition for cancellation of bail rejected. 1968 P.Cr.LJ 340 Muhammad Iqbal v.Abdul Basit and another. Contra 1971 P.Cr.LJ236 Sikandar.

Petitioner less than 16 years old and case not covered by prohibition clause of Sec. 497 Cr.P.C. Bail allowed. 1997 SCMR 1381, Ahmed Yar.

Interim bail allowed to the mother of a suckling baby in a murder case. It was held that welfare of minor was incompatible with jail life. Precedent of Holy Prophet Muhammad (peace be upon him) in the case of "ghamidiyyah" was followed. 1996 SCMR 973, Mst. Nusrat.

Petitioner under 16 years is to be normally allowed bail unless there is something exceptional disentitling him to bail. PLJ 1984 Cr.C. (Lah.) 281. Abdul Manan.

Bail of accused under 16 years who fired shots at the deceased, an elderly man, cancelled. Attendant circumstances of the case cannot be lost sight of 1983 SCMR 791. Imam Din v. Muhammad Rafiq

Minor child 1« years old sick and could not be treated in jail hospital. Mother's sentence suspended for offence u/S. 302, PPC PLJ 1980 Cr.C.(Lah.) 167 Mst. Zahoor Elahi.

Accused 16 years of age is no ground that his bail should not be cancelled in case of sodomy. Victim 9 years old had no enmity with the accused. Bail cancelled. 1999 SCMR 338 Muhammad Sahrif v. Shafaqat Hussain.

Accused less than 16 years and attributed lalkara only, granted bail in case under section 302/34, PPC PLJ 1974 Cr.C. (Lah.) 520 Ashraf etc.

Age less than 16 years when the crime was committed by the accused. Bail cancelled for offence under section 307, PPC 1975 P.Cr.LJ 1442 Badar-us-Salam v. Muhammad Javid.

Age less than 16 years and student. Bail not allowed in a murder case on the ground of the age being less than 16 years because there was a prima facie case of murder against the accused and it was discretionary with the High Court to grant or not grant bail on account of age. PLJ 1975 Cr.C. (Lah.) 373 Abbas etc.

Accused 13 years of age at the time of committing Qatli-amd allowed bail. The question of age to be determined at the trial. Held, a case of further inquiry, PLJ 1997 Cr.C. (Lah.) 1613, Mazhar Abbas.

Minority and Bail. Discretionary with Court to allow bail to minor. Very young persons to be granted bail in absence of circumstances disentitling applicant for bail. 1979 SCMR 109. Fazal Elahi v. Miss Farah Naz.

Bail cannot be claimed as a matter of right on account of tender age. (SC) PLJ 1978 SC 357. Shahbaz Tufail, 1978 SCMR 235.

Student of intermediate: Law makes no provision of leniency in the matter of bail students. 1975 P.Cr.LJ 1092 Muhammad Iqbal etc.

16 years of age and bail. Merely that the accused is 16 years old or less is no ground for bail when he hacked the victim to death with a hatchet. 1977 P.Cr.LJ 421 Abbas.

Tender age (below 16 years) is no ground for grant of bail in all cases. Armed dacoity in daylight. Culprits caught on the spot with stolen articles valued at lacs of rupees. Bail application dismissed. PLJ 1996 Cr.C. (Kar.) 379, Syed Kamran.

Old age: Relevant consideration for grant of bail to an old person is infirmity. No, medical evidence produced in support, of old age of accused. Bail not allowed. (SC) 1977, SCMR 27, Gul Ahmad Masam Khan etc.

Case of accused at bail stage could not be legitimately distinguished from that of main accused---Allegations of common intention, prima facie, were reflected from the averments of F.I.R. and attending circumstances---Accused had allegedly made firing with a carbine at the time of occurrence whereby a prosecution witness was injured--- old age simpliciter did not entitle the accused to grant of bail ---Leave to appeal was refused to accused in circumstances and bail was declined to him. 2000 SCMR 78 SUPREME-COURT

70 years age of only does not entitle a person to bail when injury to the deceased is attributed to him. (SC) 1977 SCMR 52. Ghulam Hussain.

Old age of 75 years and illness which could not be treated in jail hospital were considered by the Supreme Court as sufficient grounds to release the accused respondent on (Bail for offence u/Ss. 302, 304 148/149 & 337F (II) PPC. PLJ 1996 SC 850, Arhad Mehmood v. Sarfraz and another 1996 SCMR 861.

Age 70 and 80. Bail not allowed as the petitioner were neither sick nor infirm. 1979 SCMR 114 Hakim Ali.

Mother of suckling child of 1 years of age allowed bail in case u/S. 302/34 PPC. Welfare of suckling child demands that the child should not be made to suffer in jail. PLJ 1988 Cr.C. (Lah.) 419, Mst. Nasreen.

Suo Motu grant of bail by High Court to female accused who had not applied for bail when their case was not distinguishable from the case of the accused who had been granted bail by the High Court. NLR 1990 Cr. 663 Sajjad etc.

ALIBI PLEA

Plea of alibi. The plea of alibi can be considered for the purposes of bail. Decision reported as PLD 1974 SC 83 does not spell out an absolute bar in the matter. Affidavits of 24 members of the Provincial Assembly implying impossibility of the accused's presence at the spot at the given time. Held, the plea would require consideration at proper time. Case requires further inquiry under section 497 (2), Cr.P.C. Bail allowed by the High Court not cancelled. (SC) 1975 SCMR 19. Ch. Muhammad Shafi v. Ch. Muhammad Anwar Samma. 1978 SCMR 242. Akram Khan.

Alibi. Each case to be dealt with on its own merits. High Court granted bail when a certificate issued by an army unit and register showing presence of the accused at another place at the time of the incident. Supreme Court refused to cancel bail. (SC) 19789 SCMR 242. Akram Khan PLJ 1978 SC 415

Plea of alibi raised by the accused and affidavits by 20 advocates sworn in support. Plea held good enough in the circumstances to justify the grant of bail to the accused in a murder case. (SC) 1975 SCMR 151. Muhammad Hussain v. Muhammad Anwar.

Alibi plea supported by affidavits does not make out a case of further inquiry, for grant of bail in a murder case. Bail cancelled. NLR 1990 Cr. 499. Sultan Mahmood v. Atta Muhammad.

S. 497---Penal Code (XLV of 1860), Ss.302 & 34---Qatl-i-amd, common intention---bail , refusal of ---Report had been lodged within thirty minutes of the occurrence, which prima facie, discarded the element of consultation and deliberation in nominating the accused---Version of the complainant in the FIR got support from the statements of prosecution witnesses, and medical evidence---Accused had been attributed a direct role of causing injury to the deceased with a specific motive, which was previous blood-feud between the parties---Contention that story, stated in the FIR, was inconsistent with the medical evidence and entries made in the site plan, could not be appreciated without deeper appraisal of evidence, which at bail stage was unwarranted---Plea of alibi raised by accused could be considered by the Trial Court in the light of the evidence led by the prosecution and defence---Ground of further enquiry should be based on a rational conclusion arrived at with reference to the peculiar facts of the case and not mere hypothetical and whimsical statement, contrary to the material available on record---bail was refused , in circumstances. 2015 PCrLJ 1083 PESHAWAR-HIGH-COURT-NWFP

S. 497---Penal Code (XLV of 1860), S. 302---Qatl-i-Amd---bail , grant of ---Opinion of police---Second investigation---Deeper appreciation of evidence---Record showed that deceased received only one injury but allegation of firing against accused was also there---Plea of alibi and claim of presence of one witness to be at police station (not at place of incident) had been brought on record through course of second investigation---Validity---Second investigating of ficer attempted to create smoke screen in order to hide some facts in favour of accused---Such opinion of police was not of binding nature nor it was proper to examine legality of such document as it would amount to deeper appreciation of evidence, which was not permissible under law---Sufficient material, prima facie, was available linking accused with commission of of fence with which he stood charged---bail was refused in circumstances. 2015 MLD 992 KARACHI-HIGH-COURT-SINDH

S. 497--- Penal Code (XLV of 1860), Ss. 302/324/148/149/ 337-F(iii)/337-A(iii)---Pakistan Arms Ordinance (XX of 1965), S. 13---Constitution of Pakistan, Art. 185(3)---During investigation Plea of accused that he was out of the country had been partly accepted but he was involved to have abetted and conspired the alleged of fence---Vehicle allegedly used by the accused side during the occurrence was recovered and weapons and bullets were found therein---Statement of owner of said vehicle was recorded, wherein he disclosed that he had a telephonic conversation with the accused, after which vehicle was handed over to a driver sent by the accused---Such statement of owner of vehicle was incriminating piece of evidence---Plea of alibi raised by accused could be considered by the Trial Court in the light of the evidence led by prosecution and defence inter alia the passport entries, air-tickets and airport entries---Trial Court could also consider allegation of conspiracy against accused---Petition for leave to appeal was dismissed in circumstances and accused was refused bail . 2013 SCMR 385 SUPREME-COURT

S. 497---Penal Code (XLV of 1860), S.302---Qatl-e-amd---bail , grant of ---Plea of alibi ---Accused pressed into service Plea of alibi and contended that he was employee of transport company and was at place "S" and not at his house at place "J" at the time of occurrence---Validity---High Court had rightly observed that such was a matter, the veracity whereof would be determined at trial---Supreme Court declined to differ with High Court---bail was refused . 2012 SCMR 707 SUPREME-COURT

Investigation Officer's opinion regarding innocence of the petitioner and his absence from the place of occurrence made a ground for bail before High Court, High Court refused bail because the plea of alibi is to be examined at trial and not bail stage. Supreme Court upheld the decision of the High Court (SC) PLJ 1974 SC 40 Iqbal-ur-Rehman.

Alibi plea: Report of Investigating Officer showing that alibi plea was not such as to render direct prosecution evidence untrustworthy. Order granting bail on such plea of alibi is not maintainable. PLD 1971 SC 324 Ch. Muhammad Khan v. Sana Ullah.

Pre-arrest bail cannot be granted on plea of alibi PLJ 1975 Cr.C. (Lah.) 25 Maqbool Ahmed.

Plea of bail in case under section 302, PPC. Sifting of evidence is the duty of trial Court. High Court should not have granted bail simply on plea of alibi, when accused named in dying statement read with FIR corroborated by recoveries. Bail cancelled by Supreme Court (SC) PLJ 1974 SC 83 Muhammad Ayub v. Latif-ur-Rehman PLJ 1974 SC 40.

APPRECIATION OF EVIDENCE TENTATIVE & DETAILED

Appreciation of evidence and drawing conclusions therefrom is the exclusive function of the trial Court; same cannot be anticipated by superior Courts dealing with an ancillary matter e.g., grant of bail pending trial. (SC) PLD 1967 SC 340 Chiragh Din. Contra. (SC) PLJ 1978 SC 327 Khalid Javed Gilan. PLD 1978 SC 256.

In bail application before recording evidence in trial Court only tentative assessment is to be made by the Court. It is not permissible to go into detail of evidence on either side as it may prejudice the case of one of the parties. PLD 1994 S.C. 65, Shah Zaman etc.

Tentative appreciation of evidence as distinguished from elaborate sifting of evidence has to be done for grant or refusal of bail. If plea pressed turned out on appreciation of evidence to be incorrect bail may be refused. However, bail is to be allowed if there are grounds for further inquiry into the guilt of the accused. 1996 SCMR 1845 Shoaib Muhammad Butt v. Iftikhar-ul-Haq. etc.

Tentative assessment of evidence proposed to be produced by the prosecution and all material on record including material in support of defence plea has to be done to see whether bail should be allowed. 1996 SCMR 931, Said Akbar etc. v. Gul Akbar etc.

Only tentative assessment of facts to be made for grant of bail without making detailed reference to the merits of the case. Normally reliance should not be placed on the opinion of the I.O. at bail stage when challan had been submitted in the Court. Supreme Court found that both the forums below had discussed in detail merits of the case while deciding the bail which is contrary to the established norms. Bail allowed. 1988 SCMR 284, Muhammad Saddiq v. Muhammad Abbas.

Even if appeasement of evidence is required for bail in sentence of 3 years for offence u/S. 420 PPC, held, bail application should be disposed of on merits for the simple reason that the sentence being 3 years and possibility cannot be ruled out that the convict would serve out the sentence before his appeal would be heard. PLD 1997 S.C. 1, Muhammad Khan Shahid PLJ 1997 S.C. 118.

Evidence of parties at bail stage could not be assessed in depth. Accused having been mentioned in the FIR with clear role in commission of crime in a murder case. Held, High Court had rightly cancelled the bail allowed by the trial Court. 1996 SCMR 555, Abdul Hye etc.

Tentative assessment only of material available on record is to be made for purposes of bail. Court to be careful when affidavits of witnesses exonerating the accused petitioners are submitted in bail matters. PLD 1997 S.C.347, Naseer Ahmed.

Tentative assessment of material on record for bail has to be done by trial Court to analyse the legal worth of the material to be produced by the parties including affidavits. PLD 1994 SC 133, Sarwar Sultan.

Tentative appreciation and whether FIR version sacrosanct. Tentative sifting of evidence is distinguishable from elaborate sifting. Decision on bail application involves a prejudgment on evidence appearing prima facie at the stage when bail is sought. Statements of persons recorded by police could not be subjected to cross-examination, therefore cannot be considered as sacrosanct. (SC) PLJ 1978 SC 327, Khalid Javed Gilan. PLD 1978 SC 256.

Deeper appreciation of evidence at bail stage is not proper. It is to be done at the trial. Discretion exercised by the High Court in bail matters has to be according to the well-settled principles of law laid down by the Supreme Court. 1995 SCMR 1765, Haji Gul Khan v. Gul Draz Khan.

Deeper appreciation of the merits of the case at bail stage cannot be under taken lest it prejudice trial itself. None of the offences punishable with death or life imprisonment. Cross version of the case pending in Court. Bail allowed. PLJ 1998 Cr.C. (Lah) 110, Muhammad Hayat and another.

Sifting of evidence in minute detail is not to be done at bail stage. PLJ 1979 SC 193 Prof. Muhammad Hanif.

Appreciation of evidence in bail case cannot be done at Leave to Appeal stage in Supreme Court. (SC) 1978 SCMR 435 Muhammad Hussain Contra. (SC) PLJ 1978 SC 327 Khalid Javed Gilan.

Elaborate sifting of evidence at bail stage is not allowed to avoid prejudice to any party. 1988 SCMR 653. Abdul Razzak Mania.

Merits of the prosecution case or defence not to be considered while disposing of bail petition. (SC) PLD 1970 SC 335 Gulzar Hussain v. Ghulam Murtaza, also see (SC) PLJ 1978 SC 327, Khalid Javed Gilan PLD 1978 SC 256.

High Court not to examine the merits of the prosecution case or the plea of defence in finding whether reasonable grounds appear for believing that the accused has been guilty of the offences punishable with death or transportation for life. (SC) PLD 1967 539 Muhammad Aslam. 1968 SCMR 924 Farid v. Ghulam Hussain.

APPROVER'S CASE (Accomplice)

Approver granted bail u/S. 561-A, Cr.P.C. in spite of the bar contained in section 337 (3), Cr.P.C. in a case being tried by Special Judge Banking as the petitioner was in jail for over 4 years and all the accused in the case had been released on bail (DB) NLR 1984 Cr. 444, Sajjowal Sarwar.

Accomplice cannot be refused bail on the ground of being an approver when the principal accused had been granted bail by Deputy Commissioner. Bail allowed. PLJ 1993 Cr.C. (Quetta) 453, Muhammad Anwar.

Approver bail, allowed under section 561-A, Cr.P.C. to prevent abuse of the process of the Court. 1968 P.Cr.LJ 1367 Bashir Ahmed and 1971 P.Cr.LJ 1150 Muhammad Ramzan. 1973 P.Cr.LJ 304 PLJ 1974 Cr.C. (Kar.) 542 Abdul Latif (PLD 1968 Lah. 1030 ref.) case-law discussed.

Approver to be released on bail not under section 497 or 498, Cr.P.C. but under section 561-A when prolonged detention becomes an abuse of the process of the Court. Bar under section 337 (3), Cr.P.C. is not absolute. PLD 1975 Kar. 159 Abdul Latif. NLR 1990 Cr. 655 Khair Afzal.

Approver, bail not granted. Bail cannot be granted to the approver under section 561-A, Cr.P.C. there being absolute bar in section 337 (3), Cr.P.C.. (DB) PLD 1958 Lah. 1030 Rehmat Masih 1970 P.Cr.LJ 865 Nazir Ahmed. (the accused had absconded in the case).

BAILABLE OFFENCES

Bail in bailable offences: Remand on failure to furnish surety/bailbond. Held, where remanding the accused to jail on his failure to furnish surety/bail bond the trial Court should consider the propriety of his release on execution of his personal bond and not only on 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. PLD 1995 SC 34,Tariq Bashir etc. Under trial Prisoners, accused of bailable offences; petty offences and offences punishable with less than 10 years should not unnecessarily be detained in jail, and they should have clothes and food privately provided to them. PLD 1995 SC 34, Tariq Bashir etc.

In bailable offence after conviction on filing an appeal the accused is entitled to bail as of right. PLD 1995 Kar. 209, Shah Hussain. PLD 1963 SC 478, Mian Mahmood Ali Qasuri etc. referred.

Person killed by rash and negligent driving. Offence u/S. 320 PPC which is bailable. Bail allowed. PLJ 1997 Cr.C. (Lah.) 186, Ahmed Khan.

Bailable offences. In bailable offences the Magistrate is bound to admit the accused to bail if he can furnish satisfactory bail. 41 Cr.LJ 252 M.A. Aziz v. King.

Under section 496, Cr.P.C., the accused has indefeasible right to grant of bail. (SC) PLD 1963 SC 478 Mian Mahmood Ali Qasuri etc.

BAIL BEFORE ARREST

Interim pre-arrest bail should be allowed when notice for pre-arrest bail is given, so that the petitioner is not arrested in the meanwhile. Otherwise it will be of no use to admit the pre-arrest bail application for regular hearing. Ad-interim bail granted by High Court. PLJ 1996 Cr.C. (Lah.) 810, Syed Muhammad Nadeem Abbas.

Right of pre-arrest bail is limited only to those cases which are based mala fide, enmity or where no offence is shown to have been committed from bare reading of FIR. Bail refused in case u/S. 10, of Zina Hudood Ordinance, 1979. PLJ 1996 S.C. 797, Muhammad Azam.

Bail concurrent jurisdiction. Unless there are exceptionable circumstances applicant should first approach the Sessions Court before coming to the High Court. However, on the following hearing the application should not be dismissed on the sole ground that the applicant should have moved the Sessions Judge first. 1973 P.Cr.LJ 873 Wali Muhammad.

Pre-arrest bail application direct to High Court is allowed under Note II Rule 14 Chapter X High Court Rules and Orders Volume III in exceptional cases. PLJ 1997 Lah. 1466, Mst. Razia Shaheen. PLR 1997 Lah. 659.

Powers concurrent. The powers of High Court under section 498 are not merely revisional but are concurrent with those of the Court of first instance. (SC) PLD 1953 FC 170 Crown v. Khushi Muhammad.

Jurisdiction-Bail before arrest. High Court has the jurisdiction to grant bail before arrest to a person residing within its territorial jurisdiction for whom warrant's of arrest are issued by a Court of a different province. 1973 P.Cr.LJ 661 Muhammad Amin (Kar.) 1973 P.Cr.LJ 935 Begum Silvat Sher Ali.

Pre-arrest bail: concurrent jurisdiction of High Court. There is no legal bar or any rule to the contrary for a petitioner to come direct to the High Court for bail before arrest. High Court should not pick and choose on whims and fancies and direct a petitioner to move the Sessions Judge first before exercising its concurrent jurisdiction for pre-arrest bail. (SC) 1976 SCMR 45 Chaudhri Muhammad Anwar Samma.

Sessions Court to be moved first is not a matter of law, for bail before arrest, but only of propriety. Bail cannot be cancelled simply for this technicality. 1991 SCMR 322. State v. Malik Mukhtar Ahmed Awan.

Sessions Court to be moved before coming to High Court for pre-arrest bail. Presence of ulterior motive, particularly on the part of police to harass and humiliate the petitioner is necessary for pre-arrest bail. Bail declined. (D.B) PLJ 1997 Cr.C. (Kar.) 358, Shahid Hayat Khan. PLD 1997 Cr.C. (Kar.) 367, Agha Muhammad Jamal.

Bail before arrest. Powers of the High Court under section 498 are not merely revisional but are concurrent with those of the Court of first instance (at page 188 Shahab-ud-Din, J. states "Tyabji, C.J., has observed that the power conferred under section 498 is of a revisional character and that a High Court should not interfere before the subordinate Court exercises its discretion. I am unable to accept this view. Ordinarily the High Court may not interfere unless the petitioner has moved the Court of first instance but I do not think that it can be said there is legal bar to a High Court exercising a power in the first instance unless the section under which it acts states to that effect. Under section 498 the bail required by the police officer or magistrate may be reduced by the High Court or Court of Sessions. There is nothing in the section to indicate that the High Court can reduce the bail only after the Sessions Judge has declined to do so. That being so I can see no objection to the High Court or Court of Sessions, like the Court of first instance exercising the power of granting bail to a person against whom a non-bailable warrant has been issued, if he appears in Court and surrenders himself". (FC) PLD 1953 FC 170. The Crown v. Khushi Muhammad.

Difference in bail before arrest and after arrest is that in pre-arrest bail elements of mala fide, false involvement, arrest with motive of humiliation and malicious prosecution should be present. NLR 1981 Cr. 157 Masha Allah Khan v. Khalid Mian, when condition of mala fide not satisfied Supreme Court cancelled bail under section 3097, PPC. (SC) PLJ 1983 SC 7 Murad Khan v. Fazale Subhan.

Purpose of pre-arrest bail is to protect a person from disgrace by trumped-up charges, and to avoid humiliation. This concession cannot be allowed where prima facie a murder case is made out. NLR 1989 Cr. 432 Dr. Niaz Ahmed etc.

Considerations in granting bail before arrest are different from those taken into account while dealing with cases of arrested persons. Plea of alibi and who was the aggressor to be determined at trial. Order granting bail recalled. 1977 P.Cr.LJ 391 Mumtaz Hussain.

Bail before arrest: considerations. Grant of bail before arrest is an exceptional matter and is meant to protect the good name of a citizen who if arrested may be humiliated in the public eyes. PLJ 1976 Lah. 185 Ghulam Abbas Khan v. Zaka Ullah Khan.

Parda nashin women should be granted bail before arrest specially when there is danger to their dignity. NLR 1985 Cr. 435. Mst. Gugoo.

Bail before arrest in case u/S. 302, 109/34 PPC allowed because: (1) Petitioner is female, (2) No overt act attributed to her, (3) Mere presence in Courtyard does not mean that she contributed to the death of the deceased. PLJ 1996 Cr.C. (Lah) 1750, Mst. Sharifan Begum.

Bail & Sec. 3(3) Ehtesab Ordinance 1997, held sec. 497 Cr.P.C. is not in conflict. Pre-arrest bail granted to the petitioner in the sum of Rs. 100,00,000/- (one crore) in cash security. PLD 1997 Lah. 489, Hakam Ali Zardari.

Bail before arrest can be granted by a magistrate under section 497, Cr.P.C. if the accused appears before him. PLJ 1978 Cr.C. (Lah.) 553 Muhammad Sharif etc.

Bail before arrest. The view expressed in Muhammad Abbas v. The Crown (PLD 1950 Sindh 80) that the High Court had no power conferred by section 498, was merely revisional and could not be exercised before the subordinate authority had the opportunity of recourse to it. This view expressly dissented from in Khushi Muhammad's case by the Federal Court and it was laid down that the power exercisable under section 498, was not merely revisional, but concurrent with that of the subordinate authorities and therefore not conditional by the previous exercise of that power, by them. (SC) PLD 1966 SC 589 (597) Sadiq Ali.

Surrender and restraint necessary for bail before arrest. Bail before arrest not possible unless the petitioner is in custody or under some form of restraint and he must appear before the Court to surrender himself (FC) PLD 1953 FC 1709 Khushi Muhammad v. Crown.

In pre-arrest bail cases High Court to give clear direction to the petitioner to be present on fixed date. As the petition was not decided on merits it would be still considered to be pending in the High Court. PLJ 1996 S.C. 1479, Muhammad Saleem Akhtar.

Pre-arrest bail confirmed in absence of petitioner, when medical certificate was produced to show that the petitioner was unable to move about. NLR 1988 Cr. 49. Zahid Khalil.

Custody in bail before arrest case includes restraint or apprehension of arrest by police (FB) NLR 1981 Cr. 444 Shabir Ahmad . PLJ 1981 Cr.C. (Lah.) 405.

Form of restraint in bail before arrest. Mention of the name of the petitioner is enough restraint. Rule laid down in Khushi Muhammad's case can be extended to a person whose arrest by the police is proved to be imminent and certain i.e., issue of warrant of arrest is not necessary for bail before arrest. (SC) PLD 1966 SC 489 Sadiq Ali. Also; PLD 1961 Kar. 121 Shaukat Hussain.

Sessions Judge not to hand over applicant to police custody unless so required when bail before arrest is refused. (SC) PLD 1966 SC 589 Sadiq Ali.

Bail before arrest granted as the accused were not named in the FIR nor alleged to have played any significant role. 1998 SCMR 576, Muhammad Gul.

Apprehension of arrest of an accused for ulterior motive, that is of humiliation and unjustified harassment is sine qua non for pre-arrest bail. Bail cancelled for offence u/S. 302/34 PPC. PLJ 1998 SC 97, Ajmal Khan v. Liaquat Hayat etc.

No ulterior motive proved; pre-arrest bail cancelled, by High Court. Supreme Court allowed bail for the reason that the petitioner for over one year did not abuse the concession of bail. Ulterior motive was pleaded, injury attributed was found simple. Arrest was intended to humiliate the petitioner who was a landlord and a businessman. PLD 1989 SC 347. Meeran Bux.

No ulterior motive and irreparable harm. Bail before arrest is to be confined to cases where not only prima facie ground is made out for bail but it must also be shown that the arrest would be from ulterior motives or would do irreparable harm. PLD 1949 Lah. 21 (FC) Hidayat Ullah v. The Crown Approved in; (SC) PLD 1966 SC 589 (600) Sadiq Ali. 1983 SCMR 645 Muhammad Safdar.

No mala fides, bail before arrest declined by Supreme Court when the accused alleged to have caused injuries with deadly weapons. (SC) 1978 SCMR 432. Muhammad Shahbaz Khan etc.

Mala fides not pleaded; bail before arrest cancelled. In case of abduction and Zina, the petitioner was declared innocent and two co-accused were granted bail because of their minority. The High Court had allowed bail before arrest to the accused/petitioner. The Supreme Court cancelled the pre-arrest bail as no mala fides had been pleaded for pre-arrest bail. 1994 SCMR 2277, Mst. Bibi Rani v. Najabat Ali and another.

FIR did not show that the case against the accused was based on ulterior motive or that the machinery of criminal law had been invoked to disgrace or humiliate the accused for mala fide reasons. Pre-arrest bail allowed by High Court cancelled. 1995 SCMR 863, Jahan Dad V. Malik Altaf Hussain etc.

Pre-arrest bail is granted only in those matters where it would appear that the registration of such cases was based on enmity/mala fides or where no offence was shown to have been committed on the very face of the record. 1996 SCMR 74, Muhammad Arshad.

Ulterior motive either by police or adversaries to involve accused to humiliate and harass him is necessary for grant of pre-arrest bail. PLJ 1997 Cr.C. (Kar.) 152, Barkat Ali Isani.

Bail before arrest and mala fides. in bail before arrest to be specifically stated and all other conditions laid down by superior Courts to be fulfilled before grant of pre-arrest bail. PLJ 1984 SC 56, Zia-ul-Hassan

To be fulfilled before grant of pre-arrest bail. PLJ 1984 SC 56. Zia-ul-Hassan.

Mala fide and ulterior motive in bail before arrest. Sessions Judge has no power to grant pre-arrest bail without an express finding qua mala fides or ulterior motive by the police. In absence of mala fides or ulterior motive on the part of the police court has no jurisdiction to grant bail. PLJ 1994 Cr.C. (Lah.) 332, Khalid Mahmood v. Abdul Qadar Shah etc.

Mala fide element is evident from the fact that the police knowing that there was no evidence of theft against the petitioner yet warrants of arrest were obtained against him. PLJ 1988 Cr.C. (Lah.) 362 Haji Ghani PLD 1988 Lah. 507.

Arrest for ulterior motive such as humiliation and unjustified harassment is valid consideration for grant of pre-arrest bail. Bail allowed. 1997 SCMR 1234, Dr. Muhammad Shoab Suddle DIG. Police Karachi.

To prevent humiliation at the hands of police of respectable persons is the basic idea of pre-arrest bail. There is no compulsion for the Court to refuse bail on the ground that recovery is yet to be made. PLD 1988 Lah. 507 Haji Ghani PLJ 1988 Cr.C. (Lah.) 362.

Mala fide or ulterior motive may be humiliation and unjustified harassment by police and it is a valid ground for grant of pre-arrest bail. 1985 SCMR 1949. Jamal-ud-Din.

Pre-arrest bail cancelled by Supreme Court where discretion by both the courts below had not been exercised in accordance with law, as there was prima facie no element of mala fide and irreparable harm likely to be caused to the petitioners. PLJ 1983 SC 370. Mohib Razaq v. Shah Muhammad etc.

Principle of ulterior motive and irreparable harm is not intended to be strictly adhered to in every case. PLD 1952 Lah. 253 Muhammad Bashir v. Crown.

Threat of arrest only supported by affidavit. When the only evidence of threatened arrest was an affidavit of the applicant alone, held, it was not a sufficient ground for holding that genuine apprehension existed of his being arrested. High Court rightly dismissed the application. (SC) 1969 SCMR 134 Chiragh Shah etc.

Petitioner shall not be arrested for a definite period. Such order can be made in suitable case. When application for bail before arrest can be made direct to the High Court and the conditions for bail before arrest stated. PLJ 1973 Lah. 412 Sh. Zahoor Ahmad, also see PLJ 1975 Cr.C. (Lah.) 440 Sh. Zahoor Ahmad.

Bail before arrest. Presence of petitioner is necessary only on first date of hearing. Once surrendering himself before Court, no obligation on petitioner to be present in Court unless so directed. Petition once admitted and notice given has to be decided on merits. Absence of the petitioner on date on which he was directed to be present can result in forfeiture of his bond but Court cannot decline to decide the petition. PLD 1973 Lah. 874 Fateh Muhammad; PLJ 1973 Lah. 524 = 1974 Cr.LJ 482 Ahmad Raza Khan Kasuri.

Absence of petitioner in pre-arrest bail petition. High Court dismissed bail application. Supreme Court allowed pre-arrest interim bail when explained that the petitioner was indisposed and could not attend the Court. 1990 SCMR 823. Ch. Ijaz Ahmed.

Absence. Pre-arrest bail. Court not to reject pre-arrest bail petition for the absence of the petitioner but should give reasonable opportunity to the petitioner to explain his absence. NLR 1982 Cr. 207 Noor Ahmed etc.

Presence of accused on all dates in Court in pre-arrest bail is necessary unless presence is excused by the Court. Police should not arrest the accused in Court if bail before arrest is not confirmed unless Court orders the arrest. (FB) NLR 1981 Cr. 444 Shabir Ahmed. PLJ 1981 Cr. C. (Lah.) 405.

Interim bail before arrest. Court while admitting a "bail before arrest" application should in fitness of things grant interim bail to petitioner so that he is not arrested in the meanwhile. Refusal by Court to grant interim bail in such a case defeats the very purpose of bail before arrest application by subjecting the petitioner to humiliation of being arrested by police. When interim bail before arrest is not granted by a Sessions Judge application should be fixed for regular hearing at the earliest possible date because the petitioner may destroy evidence and Damocles sword should not be kept hanging on his head. PLJ 1974 Cr.C. (Lah.) 412 Muhammad Aslam. PLD 1974 Lah. 493.

Interim bail Grant or refusal of interim bail entirely within the discretion of High Court. 1977 SCMR 519 Major Aurangzeb.

Accused admitted to ad interim bail by Sessions Judge held, the bail application for confirmation should also be decided by the same Judge. NLR 1987 Cr. 483. Ali Muhammad.

Interim bail by Supreme Court granted till disposal of main petition in third week of April 1985. 1985 SCMR 1604. Falak Sher.

Interim bail before arrest cancelled for absence held bail application deemed to be pending, case to be decided on merits. PLJ 1980 Cr.C. (Lah.) 360 Sub. Abdul Rehman.

Bail before arrest to persons accused of offences punishable with death or life imprisonment amount to depriving investigating agency of reasonable opportunity of finding out truth and bringing culprits to book. Bail refused 1977 P.Cr.LJ 487 Muhammad Yamin etc.

Omnibus order in bail before arrest. Mala fide action designed to keep petitioner incarcerated can be prevented under Article 201(4), by passing an omnibus order restraining state from arresting petitioner in any of cases registered against him. Jurisdiction to pass such order without notice is always available provided the conditions mentioned in Article 201(4), are fulfilled. Provisions of Cr.P.C. have nothing to do with interim order passed under Article 201(4), Constitution of Pakistan 1972. PLJ 1974 Cr.C. (Lah.) 298 Maulana Abdus Sattar Niazi. PLD 1974 Lah. 323. (List of offences obtained by High Court through Advocate-General).

Trial of case likely to commence in near future, petitioner having made good amount of loss, Prima facie, not guilty of misappropriation. Interim bail confirmed. 1985 SCMR 696(1). Pervez Mahmood.

Petitioner's name substituted and involved in murder case later on. Interim pre-arrest bail granted by Supreme Court. 1988 SCMR 755. Amir Hamza.

Bail before arrest. Petitioners for bail not accused persons therefore bail could not be confirmed. However, if the Investigating Officer subsequently found the petitioners involved in the offence he was directed not to arrest them unless their warrants of arrest were obtained from Magistrate. 1974 P.Cr.LJ 422 Raji etc.

Case not registered. Warrants of arrest issued or other similar formalities undertaken, putting accused virtually under physical restraint. Arrest also proved to be imminent. Absence of formal registration of a case no bar to filing of pre-arrest bail petition. PLD 1974 Lah. 256 Sh. Zahoor Ahmed.

Petitioner named as accused in several cases but no proceedings taken against him so far. His name is not in FIR. Pre-arrest bail allowed. 1981 SCMR 935. Ch. Zahur Elahi.

Fear of police torture or death when apprehension is reasonable, are good grounds for bail before arrest. PLJ 1974 Cr.C. (Lah.) 332 Ghulam Jilani.

Bail before arrest refused and the Petitioner ordered to be arrested, by the High Court. The Supreme Court set aside the order of arrest as no process of any kind had been issued by the Magistrate dealing with case. (SC) 1975 SCMR 131 Suleman Khan.

Bail before arrest: unbelievable allegation. Accused of mature age having wife and children. Allegation of taking away from lawful guardianship a girl of 8 years to commit rape is not believable. Accused not required in person for the investigation of the case. Bail granted. 1975 P.Cr.LJ 392 Bashir Ahmed.

Allegation of loss of 14 million dollars caused by petitioner to PIA in sale and purchase of aircraft as Managing Director of PIA. Held as material on record that far did not connect the petitioner with crime, pre-arrest bail confirmed in the sum of Rs. 1,000,000 with two sureties. NLR 1989 Cr. 564. Air Marshal ((Retd)) Waqar Azim.

Compromise and bail. Wife of the petitioner compromised the offence before her death. Bail before arrest allowed in case u/s. 302, PPC. 1978 P.Cr.LJ 177 Muhammad Shafi Tahir.

Bail before arrest not granted in a smuggling case. Held, though the offence is punishable with 6 years only yet the accused cannot be let loose on the society to again indulge in smuggling. 1976 P.Cr.LJ 388 Muhammad Aslam.

No anticipatory bail to persons facing charge of theft under section 380/342/452/488/148/149, P.P.C. when recoveries are yet to be made. PLJ 1974 Cr.C. (Lah.) 521 Muhammad Sardar etc.

No reasons for confirming bail before arrest given by High Court. Case remanded to High Court for reconsideration. (SC) 1973 SCMR 42 Mst. Shafiqan v. Suba Khan.

Bail before arrest. status of the accused immaterial. Merits of the case cannot be ignored. As offence under section 325, P.P.C. is punishable with 7 years R.I. Bail before arrest refused. PLJ 1976 P.Cr.LJ (Lah.) 173 Muhammad Anwar Samma M.P.A. etc. 1976 P.Cr.LJ 1051.

Pre-arrest bail on promise to make payment of sum involved in case under sections 419, 420, 467, 468, and 471, PPC allowed by the Supreme Court as it best served the purpose of the complainant bank. (SC) 1976 SCMR 125 Zafar Iqbal.

Bail granted without surrendering. Bail granted by Sessions Judge cancelled by High Court. Supreme Court granted interim pre-arrest bail and then confirmed it as it was a case of further inquiry. 1984 SCMR 119. Hadayat Ullah v. Abdul Hameed etc.

Petitioner having surrendered before Court allowed to remain on bail on the bond furnished before the Sessions Judge, after cancellation of bail by the High Court. 1985 SCMR 900. Musharaf Khan.

Surrender to Supreme Court and not to police or jail when bail cancelled by High Court, and application for leave to appeal made to the Supreme Court against the High Court order for bail. Held, when no order of imprisonment was challenged and only order of cancellation of bail was being challenged in the Supreme Court bar contained in Order XXIII Rule 8 first proviso Supreme Court Rules 1980 would not apply. Office ordered to entertain petition for leave to appeal and to give it a regular number. The petitioners who surrendered before the Supreme Court were allowed to remain on bail on the bonds furnished by them before the Addl. Sessions. Judge. PLD 1991 SC 379, PLD 1991 SC 382 Zahid Afzal and another. PLJ 1991 SC 164, PLJ 1991 SC 166.

Bail before arrest: and surrender before Supreme Court. Bail cancelled by High Court. Petition for pre-arrest bail made to Supreme Court but the petitioner did not surrender before the Supreme Court on two dates. Petition dismissed. 1985 SCMR 97. Bakhta etc.

Without surrendering application for bail to Supreme Court when High Court had cancelled the bail of the petitioner, the petitioner appeared before the Supreme Court and prayed for bail. The Supreme Court allowed the petitioner to remain on bail on the bail bond and surety already furnished by him to the Sessions Court, till disposal of his bail application by the Supreme Court. (SC) NLR 1984 Cr. 202. Musharaf Khan 1985 SCMR 900.

Bail before arrest. arrest of the petitioner before he appears in the High Court. for his bail. Held, interference in the function of the Court and is contempt. PLD 1976 Lah. 10 State v. Niaz Muhammad PLJ 1976 Lah. 587.

Bail before arrest. in effective firing and charge with lathis attributed to the petitioners. Bail allowed. 1987 P.Cr.LJ 480. Nazra etc.

Bail before arrest: ineffective firing and plea of alibi coupled with advanced age bail before arrest allowed. NLR 1982 Cr. 305. Ghulam Ghaus

Warrants of arrest not to be issued on cancellation of bail before arrest. Matter should be left to police. 1985 SCMR 1949. Jamal-ud-Din.

Concession of pre-arrest bail not abused for one year. High Court had cancelled bail on the ground that there was no ulterior motive in the case. Supreme Court restored the order of Sessions Judge granting bail to the petitioner. PLJ 1989 SC 526. Meeran Bux.

BENEFIT OF DOUBT AND BAIL

Benefit of doubt. In bail for offence under section 302, P.P.C. the Judge should consider the whole case for purpose of bail on the data that is available. Even for bail law is not to be stretched in favour of prosecution. If any benefit of doubt arises, it must go to the accused. (SC) PLD 1972 SC 277 Amir.

Finding of innocence about one accused alone creates some doubt about the presence of the petitioner as well as material against both the accused was the same. Benefit of doubt even at bail stage must go to the accused. Bail allowed. PLD 1989 Lah. 233. Muhammad Saleem.

Benefit of doubt given at bail stage when the contention of self-defence by petitioners finds support from the F.I.R., counter-version and statement of complainant before C.M. casting doubts on prosecution version. Bail granted in case under section 302/148/149, P.P.C. 1975 P.Cr.LJ (Lah.) 30 Muhammad Aslam.

Whenever reasonable doubt arises regarding participation of accused in commission of crime he shall be entitled to concession of bail not as a matter of grace but as of right, because there is wide difference between jail life and free life. Bail cannot be withheld as punishment. (F.B.) PLJ 1998 Cr.C. (Pesh.), 802 Sakhi Zaman, etc.

Benefit of doubt in bail. Only evidence against the accused was extra-judicial confession which the circumstances indicated to have been made out of fear. Accused given benefit of doubt and bail allowed. 1975 P.Cr.LJ 1270 Nawab etc.

Possibility of false implication not ruled out where one accused empty-handed and two carrying lathis but not using them. Bail allowed in case under section 302/148/149, P.P.C. 1972 P.Cr.LJ 427 Allah Ditta 1970 P.Cr.LJ 640 Ghulam Haider.

False implication. Bail granted in murder case where there are reasonable grounds for believing false implication of petitioners. PLJ 1975 Cr.C. (Lah.) 110 Noor etc.

Doubtful credential of witnesses can be taken notice of when deciding the question of bail. (Manzoor etc. v. State Supra relied on) Previous litigation, between the parties considered when granting bail. 1973 P.Cr.LJ 125 Fateh Khan.

Who gave the fatal injury not clear from the Record Room for further inquiry about common intention. Bail allowed. 1980 SCMR 784. Jaffar etc.

Who caused fatal injury and whether common intention was there requiring further inquiry bail allowed. NLR 1982 Cr. 693 Ghulam Haider.

Which of the two accused caused fatal injury to the deceased not indicated by the police. Bail order by the Trial Court upheld, setting aside the High Court Order cancelling the bail. 1997 SCMR 251, Muhammad Aslam etc. PLJ 1997 SC 156.

Who was aggressor yet to be determined. Accused suffering extensive injuries some grievous and having counter-version. Bail allowed. 1977 P.Cr.LJ 191. Ghulam Muhammad. 1977 P.Cr.LJ 204 Abaid-ur-Rehman.

Who were aggressors yet to be determined, cross-case and counter-version in a murder case. Members of the complainant party involved in the counter-case. Bail allowed under section 302, P.P.C. PLJ 1976 Lah. 262 Ali Ahmad.

Who was the actual aggressor required to be ascertained after further inquiry FIR showing injuries on accused as well. Bail not cancelled. (SC) PLJ 1978 SC 360. Muhammad Nazir v. Muhammad Sadiq. 1971 SCMR 171.

" required further inquiry. The opposite party in cross-case on bail. Bail not cancelled. (SC) PLJ 1978 SC 370. Rehmat Ali v. Hussain. 1978 SCMR 185.

" could not be determined without further inquiry. six persons injured on complainant side while 3 persons injured on accused side. Bail granted by High Court not cancelled. (SC) 1978 SCMR 346. Muhammad Shafi v. Hakam Ali. PLJ 1978 PC 401.

Contradictory statements by abductee make the case doubtful. Bail granted for offences under sections 363, 368, P.P.C. PLJ 1975 Cr.C. (Lah.) 124 Muhammad Sardar Khan.

307 or 326, P.P.C.? A border line case. Benefit of doubt given to the accused and bail allowed. 1978 P.Cr.LJ 889 Muhammad Ayub.

CANCELLATION OF BAIL

Any person primarily interested in the prosecution of the case against the accused can move the court for justice, in this case cancellation of bail, held, the private parties are entitled to move the Court for cancellation of bail. PLJ 1993 Cr.C. (Quetta) 174, Haji Behram Khan v. Akhtar Mahmood etc.

Cancellation of bail consideration. Considerations for the cancellation of bail are different from the considerations for the grant of bail. Section 497(1) Cr.P.C. prohibits the grant of bail for offences punishable with death or imprisonment of 10 years or over. Sec. 497 (5) Cr.P.C. does not command the Court to cancel the bail even when the offence is punishable with death or imprisonment for life, and even if the grant of bail is prohibited u/S. 497 (1) Cr.P.C. the discretion is left in the Court u/s. 497 (5) Cr.P.C. which is pari materia with the principles which apply to the setting aside of the orders of acquittal. 1992 SCMR 1286, Mian Dad.

In cancellation of bail matters the Supreme Court does not ordinarily disturb the tentative opinion expressed by High Court on the merits of the case. 1995 SCMR 1765, Haji Gulu Khan v. Gul Draz.

Application by mother of the abductee to Supreme Court treated as petition for leave to appeal for cancellation of bail granted by the High Court. Rules regarding Cr. P.S.L.A. relaxed and bail cancelled. 1993 SCMR 893, Mst. Mahmona Hamayun v. Abdul Hakim etc.

Cancellation of bail application cannot only be filed by the State but also by the complainant or near relative of the deceased. PLJ 1994 Cr.C. (Lah.) 332. Khalid Muhammad v. Abdul Qadir Shah.

Lower Courts necessarily to be moved first for cancellation of bail. PLD 1984 SC 192. Zia-ul-Hassan.

Cancellation of bail application to the High Court before moving the Court which granted the bail is not competent. NLR 1991 Cr. 46 Muhammad Nasir Butt.

Documents had to be recovered and investigation would be interfered if bail is not cancelled. Bail not cancelled. PLJ 1997 Cr.C. (Kar.) 147, Rizwan Masood v. Haji Muhammad Rafiq etc.

Recovery of stolen property of misappropriated articles yet to be made is a good ground for cancellation of bail. PLJ 1984 SC 50 Zia-ul-Hassan.

Cancellation of bail by High Court on the same material on which bail was granted is competent. (SC) PLD 1977 SC 602 Amir-ud-Din.

Cancellation of bail on new grounds arising subsequently. Supreme Court held, High Court to be moved again. 1979 SCMR 479. Mehr Ghulam Nabi v. Muhammad Shafiq.

Cancellation of bail application dismissed for offence u/Ss. 302, 324/34, PPC when it was found that the prosecution had suppressed injuries on the accused. NLR 1999 Cr.C. 145 Ashiq.

Provision of Sec. 497 (5), Cr.P.C. no bar to approach higher Court for cancellation of bail. 1979 SCMR 65 Barkat Bibi.

Cancellation of bail. maximum sentence not likely to be awarded. Cases in which maximum sentence may be life imprisonment or 10 years R.I. yet if the circumstances of the case show that the maximum sentences is not likely to be awarded bail granted to the accused cannot be cancelled. PLD 1972 SC 277 and 1973 P.Cr.LJ 205 Amir v. State ref. PLD 1975 Lah. 568 Muhammad Altaf v. Nazir Ahmad.

Date fixed for trial to commence shortly. Not fair to go into merits of case for bail at this stage. 1980 SCMR 203. Muhammad Sadiq.

Bail applications ordinarily not to be decided on merits when the case is fixed for hearing. Application for cancellation of bail dismissed. PLJ 1989 SC 455. Muhammad Ismail v. Muhammad Rafiq etc.

When murder case is fixed for hearing well-known practice of Courts is not to decide bail application on merits. Cancellation of bail petition dismissed. PLJ 1989 SC 455. Muhammad Ismail v. Muhammad Rafiq.

Trial likely to commence in a few weeks time and when no allegations of misuse of privilege of bail are made, ordinarily bail is not to be cancelled. 1979 SCMR 235. Muhammad Hanif v. Khushi Muhammad.

Cancellation of bail when trial started and judgment to be pronounced soon the cancellation of bail petition not considered. PLJ 1980 SC 147 Mst. Channa Jan v. Muhammad Siddiq.

Case already fixed for arguments, bail not cancelled as no useful purpose would be served. 1989 SCMR 520. Muhammad Iqbal v. Muhammad Safeer.

Trial already started and three witnesses examined, Supreme Court did not consider the plea for cancellation of bail at that stage. 1989 SCMR 2063. Masood.

Cancellation of bail and delay in hearing. Cancellation petition filed only 20 days after bail order but case coming up for hearing before Supreme Court after 13 months. Held no advantage for this delay could be taken by respondent accused. 1979 SCMR 66. Barkat Bibi v. Gulzar.

Reasons for cancellation of bail if not cogent for example, order obtained through misrepresentation, suppression of facts or concession being abused to hamper course of trial. Such facts to be brought to the notice of the Court concerned. PLJ 1979 SC 202. Mehr Ghulam Nabi v. Muhammad Shafiq.

Cancellation of bail granted by superior Courts. Neither the Magistrate nor the Sessions Judge is empowered to cancel the bail granted by the High Court, unless the High Court order is explicitly of temporary character and applicable only to a certain stage in the proceedings. (FB) 49 Cr.LJ 521 Seoti.

Bail granted by Supreme Court cannot be cancelled by Sessions Judge for absence of the accused. The Court can issue non-bailable warrants of arrest for the production of the accused and also issue notice to the surety. NLR 1984 Cr. 724. Manzoor Ahmad Bhatti.

Bail granted by High Court cannot be cancelled by lower Courts. PLJ 1993 Cr.C. (Pesh.) 307, Zar Jan.

Cancellation of bail by High Court. Petition for cancellation of bail on the grounds of threats to prosecution witnesses dismissed by the Sessions Judge. Held, High Court under section 439, Cr.P.C. and not under section 497 (5), Cr.P.C.; can cancel the bail on new grounds set out in revision petition. (SC) 1971 SCMR 637 Nazir v. Amir Din etc.

Cancellation of bail for suborning witnesses. Police initiating security proceedings against accused. Held, if security proceedings by police prove ineffective nothing prevents the petitioner from moving committing Court for cancellation of bail and Magistrate at liberty to cancel bail despite order of High Court granting bail. 1981 SCMR 773 Muhammad Ahmad v. Muhammad Yaqub.

When cancellation of bail is sought for misuse of concession of bail, there should be clear proof on record about the allegation of misuse of the privilege of bail. When sufficient material to support the allegation is brought on the record bail is liable to be cancelled. PLD 1994 S.C. 88, Tanveer Ahmed v. Muhammad Saqib etc.

Bail cancelled without notice to the accused. Bail allowed. 1971 P.Cr.LJ 1051 Allah Bakhsh.

Bail allowed by police cannot be cancelled by the Magistrate; words "and in the case of person released by itself" in section 497 (5), Cr.P.C. does not apply in the case. 1970 P.Cr.LJ 1171 Nisar Ahmad 1968 P.Cr.LJ 1212 Muhammad Iqbal.

Medical grounds. Medical certificate showing that the accused not only suffered from infirmity but also that infirmity may endanger his life. Bail granted by Sessions Judge for offence under section 307, P.P.C. not cancelled. PLJ 1975 Cr.C. (Kar.) 40 Sarfraz Ahmad.

Cancellation of bail without giving the accused an opportunity of being heard is illegal (SC) PLD 1966 SC 126 Mushtaq Ahmed.

Cancellation of bail. High Court and Court of Sessions may cancel bail granted by them under section 498, Cr.P.C. in a case pending before a Magistrate. Powers under section 498, Cr.P.C. are only a corollary to section 497, Cr.P.C. PLD 1950 Lah. 280 Ahmed v. Crown. Section 497 (5), Cr.P.C. gives powers to do so, overruled. PLD 1956 FC 117 Gushtasab Khan v. Crown. PLD 1974 Lah. 476 Nazir Ahmad v. Latif Hussain.

" Bail cancelled when Sessions Judge granted bail on plea of alibi observing that the case required further inquiry. Bail cancelled on the ground that there was no scope for further inquiry. PLJ 1974 Cr.C. (Lah.) 517 Javid Akhtar v. Masud Ahmed.

" In case under section 307/148/149, P.P.C. Sessions Judge allowed pre-arrest bail to two accused on the ground that firing was not effective. Bail cancelled as ineffective firing is no justification for grant of pre-arrest bail, to two accused on the ground that firing was not effective. Bail to be granted very rarely in such cases. PLJ 1974 Cr.C. (Lah.) 519 Asghar Ali v. Jagdev etc.

High Court granted bail during the commitment proceedings pending before a Magistrate. Superior Courts not to do so when the grant of bail would prejudice the case. However, when bail granted not in violation of any legal principles it should not be cancelled. (SC) 1973 SCMR 498 Muhammad Yaqub v. Ghulam Qadir etc.

Order granting bail not improper. High Court cancelled bail granted by Sessions Judge. Supreme Court granted bail as discretion exercised by Sessions Judge was not found injudicious or improper. (SC) PLJ 1978 SC 204. Maz Wali.

Strong and exceptional grounds are needed for cancellation of bail when bail is granted by a competent Court. PLJ 1991 Cr.C. (Lah.) 64 Bashir Ahmed v. Mirza Muhammad Ayub.

Where High Court did not notice all the relevant circumstances of the case Supreme Court cancelled the bail. Injuries found on the accused were very slight; simply because the fight was sudden it was a long way for the accused to establish all the conditions laid down in Sec. 300 exception IV, PPC. PLD 1990 SC 758. Iqbal Hussain v. Abdul Satter.

Cancellation of bail under section 561-A, Cr.P.C. Section 561-A does not empower High Court to cancel bail granted by it under section 426, Cr.P.C. 1968 P.Cr.LJ 1069 Saleh Muhammad.

Cancellation of bail. Bail allowed by Sessions Judge because judicial confession was retracted, Bail cancelled. PLJ 1973 Cr.C. (Lah.) 492 Anaran Begum v. Mushtaq etc.

Bail cancelled when Sessions Judge had granted bail without giving proper appreciation to alibi plea. PLJ 1973 Cr.C. (Lah.) 495 Nawab v. Muhammad Saeed.

Under section 497 (5), Cr.P.C. Section 498, Cr.P.C. being a corollary of section 497, Cr.P.C. High Court has to cancel bail under section 497 (5) which was granted by Sessions Judge under section 498, Cr.P.C. (FC) PLD 1956 FC 117 Gushtasab Khan v. The Crown.

Contra. 47 Cr.LJ 106 Crown v. N.S. Krishman 221 IC 178.

Cancellation of bail by High Court under section 497 (5), Cr.P.C. bail having been granted under section 498, Cr.P.C. by the Sessions Court, held, High Court has ample power under section 439, Cr.P.C. to revise any orders made by subordinate criminal Courts. (SC) 1974 SCMR 166 Ijaz Ahmad.

For offences under sections 307, 452, 324, 148 /149, P.P.C. Since investigation completed and challan put in Court cancellation of bail would serve no useful purpose. 1976 P.Cr.LJ 193 Shamshad v. Muhammad Arshad etc.

Cancellation of bail application filed 21/2 months after bail order. Held, petition not made promptly, private party is not to be permitted to harass accused by selecting his own timings for moving for cancellation of bail specially when the accused did not abuses the concession of bail PLJ 1984 Cr.C. (Kar.) 284. Piaro.

Cancellation of bail application made to the High Court after more than 90 days of the order granting bail. Supreme Court allowed leave to appeal to consider the question whether the application to the High Court was barred by time. (SC) NLR 1984 Cr. 202. Musharaf Khan.

Cancellation of bail. Court granting bail to be moved in the first instance for the cancellation of bail. 1976 P.Cr.LJ 324 Mirza Khan v. Lal Khan PLJ 1975 Cr.C. (Lah.) 296.

Cancellation of bail. Threats to witnesses. Involvement of the accused in the conspiracy yet to be established. Allegation made that the accused after the grant of bail tried to misuse concession by approaching prosecution witnesses and threatening them not to give evidence. Bail not cancelled in the circumstances. PLD 1977 Kar. 554 State v. Muhammad Hassan etc. 1978 P.Cr.LJ 266 Sardar Khan v. Muhammad Fazil.

Cancellation of bail. Evidence on record not tampered. Accused on bail for about 9 months but liberty not abused by tampering with record or evidence Held, no useful purpose will be served by taking accused into custody. Bail could not be cancelled to enable prosecution to use coercive methods for recovery. 1976 P.Cr.LJ 264 Allah Jiwaya v. Muhammad Aslam etc.

Cancellation-abuse of liberty. High Court cancelled bail granted for offences under section 363, 366 P.P.C. because accused threatened to readjust the girl. PLJ 1975 Cr.C. (Lah.) 57 Amir Khan v. Muhammad Iqbal etc.

Cancellation: accused threatening P.Ws. since his release on bail. The fact that the accused was living 68 miles away from the spot could not prevent him threatening or intimidating the P.Ws. Bail cancelled. 1976 P.Cr.LJ 609 Bashir Hussain v. Sadiq Hussain etc.

Cancellation-abuse of liberty. High Court cancelled bail granted for offence under sections 363, 366, P.P.C. because accused threatened to re-abduct the girl. PLJ 1975 Cr.C. (Lah.) 57 Amir Khan v. Muhammad Iqbal etc.

Cancellation tampering with evidence. Accused admitted approaching complainant through others, held bail rightly cancelled. PLD 1975 Lah. 301 Ghulam. Contra 1978 P.Cr.LJ 266. Sardar Khan v. Muhammad Fazil.

Cancellation. delay in trial. Accused allowed to remain on bail because of delay in trial as no witness had been examined that far. 1976 P.Cr.LJ 944 Abdul Ghaffar v. Muhammad Saleem.

Delay in submission of Challan. FIR delayed, two eye-witnesses interested and other discrepant. Bail not cancelled. (SC) 1977 SCMR 1. Mumtaz v. Sarfaraz etc.

Additional Sessions Judge cannot cancel bail. When High Court authorised only the committing Magistrate to cancel the bail while committing the accused for trial but not exercising the power. 1971 P.Cr.LJ 236 Sikandar.

Cancellation of bail before arrest and alibi. High Court granted bail before arrest on the ground of enmity between the parties and that police should examine the plea of alibi before arresting the respondent. Held, that the plea of alibi raised by the respondent would ordinarily be examined by the relevant Court in first instance. Accused named in the FIR as the principal offender in case under section 302, P.P.C. Bail cancelled. (SC) 1976 SCMR 51 Ch. Hashmat Ali v. Muhammad Saleem etc.

Cancellation of bail before arrest. High Court granting bail before arrest to a person accused of murder who was latter challaned and the matter pending before a Magistrate. Proper course to move committing Magistrate or Sessions Court for cancellation of bail. (SC) 1970 SCMR 786 Abdus Sattar v. Muhammad Yaqub etc.

Under what provision of law is the Magistrate or Sessions Judge competent to cancel bail granted by High Court is not clear from this authority. It may be that the Magistrate could act on new grounds that arise in the course of proceedings. PLD 1958 SC (Pak.) 169 Abdul Hayee Khan.

Cancellation of bail before arrest. Bail confirmed by the High Court. Supreme Court refused to cancel it, leaving to Sessions Court to cancel it if grounds exist for believing accused to be guilty of offences punishable with death or transportation. (SC) PLD 1967 SC 293 Abdul Rehman v. Fazal Qadir.

Cancellation by the Supreme Court. The Supreme court does not interfere with the High Court orders unless the reasons given are fanciful or arbitrary, though the Supreme Court may not quite agree with those reasons. (SC) 1976 SCMR 286 Noor Muhammad v. Abdur Razaq.

No misuse of bail privilege. Although the Supreme Court was not quite happy with the grant of bail to the respondents, by the High Court, yet it did not interfere with the privilege of bail as it had not been misused. 1976 SCMR 360. Shahid Arshad v. Muhammad Naqi Butt.

No abuse of bail and delay in lodging the FIR considered by the Supreme Court as sound factors for the confirmation of the interim bail. Order not confirming the bail set aside. (SC) 1975 SCMR 137 Rana Phool Muhammad Khan etc.

Where concession of bail was abused by injuring a witness and the High Court had misread the evidence while granting bail. Supreme Court cancelled the bail. 1994 SCMR 1230, Malik Anjum Farooq Piracha v. Waqar Zafar Chauhan etc.

No misuse of liberty, interim bail granted by the Supreme Court confirmed as the petitioners were responsible persons and there were only general allegations against them and also that the trial would not be delayed. (SC) 1976 SCMR 352 Zaka Ullah etc.

No complaint against the petitioner since released on bail, about two and a half years ago. Bail confirmed by Supreme Court (SC) 1977 SCMR 40. Bashir-ud-Din etc.

Expeditious trial instead of cancellation of bail. Supreme Court directed expeditious trial when application for cancellation of bail made in a murder case; allowing trial Court to cancel bail if after examination of eye-witnesses it was found that the accused had committed a non-bailable offence. (SC) 1977 SCMR 1, Mumtaz v. Sarfaraz etc.

Trial to commence shortly, bail not cancelled, which had been granted by High Court. 1985 SCMR 1691 Mst. Irshad Begum v. Muhammad Afzal.

Where the case was cancelled by a Magistrate against an accused and the High Court had cancelled the bail of the accused, the Supreme Court set aside the High Court order cancelling bail for offence u/Ss. 302, 307, 148/149 PPC, 1992 SCMR 813, Shahid Iqbal Butt.

Trial about to start shortly, bail not cancelled. Trial Court may cancel bail after recording incriminating evidence. 1988 SCMR 918. Akmal Masih v. Salamat Masih.

Bail not cancelled when trial had started. The trial Court should be allowed to finally decide the case. NLR 1986 Cr. 738. Munshi Khan.

Bail to be cancelled on strong grounds and not by making allegations alone but by giving substantive proof of such allegations. When application for cancellation of bail is frivolous, without any substance, making general allegations, the Court is competent to dismiss it by a short order without going deep into the facts and arguments. High Court has the jurisdiction to refuse to cancel the bail and merely because it did so by passing a short order does not render such order illegal or without jurisdiction. In contested matters it is desirable to give reasons, but not in cases where the very basis of the proceedings has been challenged and found to be mala fide and on top of it application is moved for cancellation of bail without any basis or grounds which remain unsubstantiated. 1994 SCMR 1283, Govt. of Sindh v. Raeesa Farooq and 5 others.

Threats of dire consequences to P.Ws. by the accused. Plea supported by affidavits of petitioner. Bail cancelled. NLR 1987 Cr. 358 Mst. Samia Bibi v. Allah Bakhsh.

Cancellation of bail and private parties. The provision regarding cancellation of bail not available to private parties to satisfy their grudges or to use as a means of wreaking their vengeance. 1977 P.Cr.LJ 277 Nazar Muhammad.

Respondent to surrender himself voluntarily to serve his sentence when appeal was pending in the High Court and sentence had been suspended by High Court, the order was passed after cancelling bail in a murder case, by Supreme Court. PLD 1992 S.C. 463, Bashir Ahmed v. Zulfiqar.

CONDITIONAL BAIL

High Court is not competent to impose conditions on bail bond which are required to be furnished by petitioner for release. Held, petitioner to be released on furnishing surety of her own choice. PLJ SC 1444, Mst. Afshan Bibi.

Bank guarantee. Bail order in terms of Bank guarantee is in excess of jurisdiction. 1980 P.Cr.LJ 323. Sabir Hussain.

Cash deposit. Cash deposit as condition for releasing on bail is not contemplated by law. (DB) 45 Cr.LJ 340 Raj Balam Singh. 211 IC 240.

Conditional bail. There is no provision for attaching condition to the order granting bail u/S. 497 or 498, Cr.PC or suspending a sentence u/S. 426, Cr.P.C. on the condition of payment of fine. 1970 SCMR 175 = 1970 P.Cr. LJ 844 Faiz-ur-Rahman. PLD 1963 SC 478 Mahmud Ali.

Bail conditional on payment of cash, Supreme Court held the condition to be illegal and remanded the case for reconsideration to High Court. (SC) NLR 1984 Cr. 431 Abdul Rehman. 1985 SCMR 542.

Sureties to be related within prohibited degree ordered by Sessions Court, set aside. Imposition of conditions in bail order frustrate the bail order themselves. NLR 1989 Cr. 489. Mst. Niaz Bibi.

Condition that only father shall stand surety, Set aside as the condition is not sustainable in law. PLJ 1997 Cr.C. (Lah.) 618, Mst. Waziran.

Bail bond to be by father or mother, held not a conditional bail order. PLD 1985 Lah. 512. Mst. Pathani etc. v. Murtaza etc.

Conditional bail order set aside. High Court granted bail on the petitioner, accused. Supreme Court ordered that the accused 1998 SCMR 6, Mst. Afshan Bibi.

Conditional order of bail: sureties to be from relatives of prohibited degree. Condition set aside. PLJ 1993 Cr.C. (Pesh.) 478, Mst. Chan Bibi.

CONSISTENCY-PRINCIPLE AND BAIL

Principle of consistency in bail cases not binding when Supreme Court found that the co-accused should not have been allowed bail. The question of cancelling the bail of the co-accused left to the High Court u/s. 497 (5), Cr.P.C. PLJ 1988 SC 21. Muhammad Azim = PLD 1988 SC 84.

Principle of consistency. Role of the petitioner not distinguishable from that of the co-accused allowed bail, held petitioner also entitled to bail 1979 SCMR 9. Muhammad Fazal.

Co-accused granted bail in identical situation. Petitioner in the circumstances could not be discriminated against. Witnesses apparently could not see the occurrence in big gathering of the people of the area who were armed and took part in the incident. Bail allowed. 1996 SCMR 364. Fazil Khaliq.

Accused had not caused any injury to the deceased but had allegedly caused a simple injury to a prosecution witness and that co-accused with a similar role had been released on bail, held the petitioner on principle of consistency was also entitled to bail. 1996 SCMR 1693, Abdul Aziz.

Grant of bail is a rule and refusal an exception. Where a co-accused was granted bail, the petitioner who was similarly accused was also granted bail. (D.B) PLJ 1996 Cr.C. (Kar.) 367, Shahzad.

Case of co-accused at par with the petitioner. The co-accused had been granted bail, held, order granting bail to co-accused cannot be ignored. Bail allowed. PLJ 1995 Cr.C. (Kar.) 223, Abdul Latif.

On principle of consistency High Court had already granted bail to co-accused u/S. 497/498 Cr.P.C. read with Sec. 5-A (8) of S.T.A. (Special Courts) Act for offences u/Ss. 436, 427, 148, 149 PPC. Both petitioners placed in identical circumstances, hence entitled to same treatment as given to other co-accused. (D.B) PLJ 1996 Cr.C. (Kar.) 1234, Muhammad Aslam etc.

Consistency principle. Role attributed to the petitioner similar to that of the co-accused released on bail for offences u/S. 302/307, PPC. Bail allowed to the petitioner. 1982 SCMR 909. Abdus Sattar.

Principle of consistency is not absolute and inflexible. It can only be applied when a person is entitled to bail on merits. PLJ 1994 Cr.C. (Kar.) 23, Qamar Bughio.

Case at par with co-accused. Co-accused admitted to bail by Sessions Judge High Court rejected bail petition on the ground that his earlier bail petition had been dismissed. Supreme Court allowed bail on the ground that the case of the petitioner was at par with that of the co-accused allowed bail by the Sessions Judge. (SC) 1982 PSC 1332 Khadam Hussain. NLR 1982 Cr. 666.

Cases of petitioner not distinguishable from co-accused on bail. Bail allowed, to the petitioner. 1980 SCMR 142 Abdul Salam.

CROSS-CASES & COUNTER-VERSIONS

In case of counter version for offence u/s. 302 PPC in the same incident, one given in the FIR and the other given by the opposite party, case law is almost settled that such cases are covered; for grant of bail; on the ground of further inquiry u/s. 497 (2) Cr.P.C. Question about which party is aggressor and which party is aggressed can be gone into and decided by trial Court after appreciation of evidence. High Court holding that though the charge is u/s. 302 PPC for double murder there are grounds for further inquiry and granted bail to the accused. Supreme Court upheld the High Court order. PLJ 1996 S.C. 1704, Shoaib Mehmood Butt Vs. Iftikhar-ul-Haq etc. 1996 SCMR 1845.

Cross-case. Accused also injured seriously and a cross-case registered under section 307, P.P.C. against the complainant party. Reasonable doubt raised, case falling under section 302/34, P.P.C. Bail allowed. PLJ 1975 Cr.C. (Lah.) 370 M. Ashraf-ud-Din.

Bail in cross-cases. Accused challaned under section 302 and cross-case under section 307, PPC registered against opposite-party. Accused also suffered injuries. Such matter can be taken notice of in granting or refusing bail. Two different versions. Case fully covered by section 497 (2), Cr.P.C. Bail granted as it could not be determined as to who was the aggressor. 1970 P.Cr.LJ 666 Allah Ditta and 10 others.

Cross-case. Bail allowed in murder case when in cross-case under sections 307, 325, 148 and 149, PPC the other party is on bail, and the petitioner will be required to pursue his defence. PLJ 1975 Cr.C. (Lah.) 95 Bahadar etc. 1975 P.Cr.LJ 162.

Opposite party allowed bail in counter-case. Bail granted for offences u/Ss. 302, 307, 148/149, PPC as it was yet to be determined who was the aggressor. NLR 1988 Cr. 679. Barkat Ali etc.

Cross-case. It is yet to be determined which party was at fault. Bail allowed for offences u/Ss. 307, 148/149. 1975 P.Cr.LJ 1375 Mazhar Hussain etc. 1978 P.Cr.LJ 80 Syed Rafiq Muhammad Shah. 1978 P.Cr.LJ 300 Muhammad Boota.

Cross-case. F.I.R. against appellants considerably delayed. Appellant's party suffering one fatal casualty but none died from the opposite side. Question as to which party was aggressor yet to be determined. Inquiry proceedings not commenced even after one year. Interim bail confirmed for offence under section 307, PPC. (SC) 1976 SCMR 124 Fazal Hussain etc.

Cross-case registered after 24 hours of the incident makes no difference. Case held to be of further inquiry. Bail allowed, for offences under section 307, PPC. PLJ 1983 Cr.C. (Lah.) 5 Sh. Rehman.

Cross-case, filed by the petitioners cancelled by the police. No evidence recorded in the complaint filed by the petitioners. Held not fit for grant of bail. 1976 P.Cr.LJ 1064 Mumtaz Ahmad etc.

Mere fact of cross-case being registered but no definite conclusion arrived at. Bail not allowed in murder case NLR 1983 Cr. 160. Sardar Khan etc.

Cross-case. Accused an old man of 70 carrying sota but not using it. Injured by the other party. Bail allowed. 1976 P.Cr.LJ 1055 Muhammad Sharif.

Cross FIRs or cross cases got registered by each party cannot be a ground for grant of bail. 1992 SCMR 501, Nasir Muhammad Wassan.

Cross-case, free fight and likelihood of delay. Free fight between parties apparently taking place and fatal shot said to have been fired by the absconding accused. Record not revealing exact damage caused by the shot or shots fired by the petitioner. Likelihood of the trial being delayed in view of the abscondence of one of the accused and two counter-cases and a private complaint relating to same occurrence having to be simultaneously decided. Bail allowed in case under sections 302, 307, PPC (SC) 1976 SCMR 159 Wakeel Hassan.

Cross-case. 3 persons of accused side receiving grievous and simple injuries while one dead and three injured on complainant side. Who was the aggressor yet to be determined. Plea of right of private defence prima facie probable. Accused allowed bail. 1976 P.Cr.LJ 1323 Ali Ahmad.

Cross-case and counter-version accused suffered grievous injury in same fight. Premature to decide who was aggressor. Case of further inquiry. Bail allowed. PLJ 1980 Cr.C. (Sukkur) 140 Hadi Bakhsh.

Cross-case bail. Accused summoned on the complaint of petitioners under sections 307, 326, 435, 324, 149, P.P.C. on bail. Petitioners in challan case allowed bail for offences under section 302, 307, 149, P.P.C. when case not supported by post-mortem report. NLR 1982 Cr. 382 Allah Dad etc.

Cross-cases and accused seriously injured. Bail allowed. 1977 P.Cr.LJ 530. M. Ashraf-ud-Din. 1978 P.Cr.LJ 388 Muhammad Hanif.

Counter-version. Mere existence of counter-version in F.I.R. Lodged by one of the accused is no ground for bail. (SC) 1975 SCMR 391 Muhammad Usman etc.

Counter-version by accused. Question whether accused or deceased was aggressor yet to be determined. Held, bail rightly granted by High Court. Complainant could move the trial Court for cancellation after some evidence is recorded. (SC) 1972 SCMR 682 Mst. Shafiqan v. Hashim Ali.

Counter-version. Accused making report to the police one hour before the F.I.R. against him. Co-accused receiving four grievous injuries by sharp edged weapon. Which party was the aggressor is a matter of further inquiry. Bail allowed. PLJ 1984 Cr.C. (Lah.) 17. Shah Muhammad.

Counter version cannot be pressed into service for grant of bail unless there is scope for further inquiry. If the Court comes to definite conclusion after considering entire material before him that there are reasonable grounds that the accused has not committed a non-bailable offence, the accused can be released on the ground of further inquiry. PLJ 1997 Cr.C. (Pesh) 100, Nasar-ullah-Khan Vs. Mst. Bas Khanadana.

Different versions in F.I.R. and complaint. In complaint the eye-witnesses named in F.I.R. consistently exonerating the accused. Bail allowed. 1977 P.Cr.LJ 493 Riaz.

Two versions existing according to prosecution itself. Version favourable to the accused has to be adopted. Bail allowed. (DB) PLD 1991 Kar. 261 Manzoor Hussain Wassan.

Two conflicting versions by a solitary eye-witness before two investigating agencies. Held, case fell under section 497 (2), Cr.P.C. Bail not cancelled. 1975 P.Cr.LJ 640 Faiz Ahmad Khan.

Two contradictory statements made by abductee made the case doubtful. Bail allowed, 1977 P.Cr.LJ 503 Muhammad Safdar Khan.

DELAY IN DISPOSAL OF APPEAL

Appeal not heard within one year. Petitioner arrested on appeal from acquittal in the Supreme Court. Only minor role attributed to the petitioner. Bail allowed. 1986 SCMR 77. Muhammad Khan v. Muhammad Khan.

Suspension of sentence after two years when appeal not disposed of. When High Court gives reasons for not suspending sentence and the appeal being fixed for hearing soon sentence was not suspended. 1981 SCMR 727. Zulfiqar Muhammad Tufail. PLJ 1986 Cr.C. (Lah.) 292. Shaukat Ali.

Appeal not heard for 2 years by Supreme Court in an appeal from acquittal where non-bailable warrants of arrest were issued. Bail allowed, as of right. 1984 SCMR 1505 (1). Muhammad Azam v. Shabbir Ali.

Delay in disposal of appeal in Supreme Court. Leave to appeal from acquittal granted by Supreme Court and petitioner arrested in July 1976. Petition for bail dismissed in Feb. '78 holding the delay not inordinate. (SC) 1978 SCMR 201. Muhammad Sadiq v. Muhammad Ali etc. Also see 1991 SCMR 1459 and 1994 SCMR 480, bail allowed when appeal not heard within 2 years.

DELAY IN CONCLUSION OF TRIAL

Delay-Inordinate delay in murder trial. Trial Court failing to complete trial till March 1974 in a trial which commenced on October, 1971. High Court at various stages directing trial Court to complete proceedings. Supreme Court deploring degree of laxity displayed by trial Court and expressing great surprise over lenient view taken by High Court of flagrant disregard of its directions by trial Court. Bail granted. (SC) PLJ 1974 SC 176 Abrar Muhammad etc.

Bail on statutory ground of delay in trial for offences u/Ss. 302, 324, 452, 148/149 PPC, held right of accused to be released on bail under 3rd proviso to sec. 497 (11) Cr.P.C. is statutory right which cannot be denied under discretionary powers of Court. Word "SHALL" therein has to be read in its ordinary sense. PLJ 1996 Cr.C. (Lah.) 1713, Muhammad Sadiq etc.

Bail to be allowed as of right when statutory period expires as laid down in section 497 Cr.P.C. and the trial has not concluded unless it is shown that the delay in the conclusion of the trial was caused by the accused. 1998 SCMR 190, Sher Ali.

Delay as good ground for grant of bail. Inordinate delay in prosecution amounting to abuse of process of law can be treated as sufficient ground for grant of bail. The case dragged on for 5 years and bail not granted. Supreme Court allowed bail to all while the trial was pending before Sessions Judge. (SC) PLD 1974 SC 224 Abrar Muhammad and others.

Calculation of custody period u/s. 497 (1) Cr.P.C. speaks of continuous period of detention and not the periods calculated by adding the intermittent periods caused by the illegal and unlawful acts of the accused. 1996 SCMR 172, Khushi Muhammad v. Rab Nawaz etc.

Bail under 3rd proviso to sec. 497 (1) Cr.P.C. is not at the discretion of the Court. It can be refused only when the delay has been caused by any act of the accused or the case falls under 4th proviso of the sub-section. Bail allowed. PLD 1995 S.C. 49, Zahid Hussain Shah.

Mere registration of number of cases against the petitioner is no ground for refusing bail on statutory ground of delay in trial, when the petitioner is notÿa previous convict. Bail allowed. PLJ 1998 Cr.C. (Kar) 682, Rahim and Rahmak.

Bail on statutory ground refused in case of smuggling of heroin when FIR was registered u/s. 156 (1) (8) of Customs Act 1969. The petitioner accused was Deputy Superintendent (Vigilance) Civil Aviation Authority Karachi. The bail was refused on the ground of the accused being hardened and dangerous criminal. PLJ 1996 Cr.C. (Kar.) 562, Omair Ahmed Siddiqui.

Bail u/s. 497 (1), 3rd proviso, speaks of continuous detention and not of intermittent detention. Where an accused escaped from lawful custody after 5 months and 12 days of detention but was re-arrested later on, held, previous custody cannot be counted by adding intermittent period caused by an illegal and unlawful act of the accused. Bail cancelled. PLJ 1996 S.C. 377, Khushi Muhammad v. Rab Nawaz etc.

Delay by itself is a sufficient ground for bail, merits of the case notwithstanding the petitioners in jail for 3 years for no fault of theirs.

Held petitioners entitled to bail. 1977 P.Cr.LJ 474. Zahur Ahmed etc. 1978 P.Cr.LJ 79. Pathan (SC) PLD 1977 SC 480 Riasat Ali 1978 SCMR 248, Sher Zaman.

Bail. Where accused escaped from custody for more than 1« years he could not be granted bail even u/s. 497 (1) Cr.PC when 2 years had passed in custody. 1996 SCMR 172, Khushi Muhammad v. Rab Nawaz etc.

Delay by itself sufficient ground for grant of bail (F.I.R. dated 18-2-1970 commitment not completed till February, 1973) Bail allowed for delay. PLJ 1973 Lah. 395 Zahur Ahmed. PLJ 1974 Cr.C. (Lah.) 296 Shah; PLJ 1974 Cr.C. (Lah.) 297 Muhammad Sadiq etc. (delay in commitment 1 year and 11 months). 1974 P.Cr.LJ Notes 155 and 153 (delay of 17 months and 29 days); PLJ 1974 Cr.C. (Lah.) 491 (only 2 P. Ws. examined in 2 years bail allowed for 302,307,148,149, P.P.C.). 1977 P.Cr.LJ 471, 478,479. (DB) = 1978 P.Cr.LJ 589 Abdul Rehman.

Delay of 2« years in trial after the omission of 3rd and 4th provisos of sec. 497 Cr.P.C. the pre-amendment position of law is restored. Case entrusted to Adll. Sessions Judge recently and the trial of the case bound to take considerably long time. Bail allowed. PLJ 1994 Cr.C. (Lah.) 73, Khalid. Cases relied upon. PLD 1968 S.C. 353, Riasat Ali v. Ghulam Muhammad; 1978 SCMR 248, Sher Zaman v. Muhammad Azad; PLD 1977 S.C. 434, Barkhurdar v. Liaqat Ali etc.; 1972 SCMR 207, Manzoor Khan v. Kamir etc.; PLD 1972 S.C. 81, Manzoor Ahmed etc.; 1973 SCMR 212, Muhammad Sadiq v. Muhammad Shafi.

Many cases pending against the accused petitioner do not disentitle him to bail on statutory grounds of trial not being concluded within 2 years, unless it is shown that the petitioner is a dangerous/hardened criminal. Bail allowed for offence u/S. 17(3) of Offences Against Property Ordinance VI of 1979. PLJ 1998 Cr.C. (Kar.) 457, Abdul Wahad Junejo.

Inordinate delay in prosecution of a case amounting to an abuse of the process of the Court can be considered as a ground for bailing out of an accused even in a murder case depending on the nature of the delay and the circumstances which have caused it. (SC) PLD 1968 SC 353 (355) Riasat Ali v. Ghulam Muhammad; (SC) PLJ 1974 SC 176 Abrar Muhammad and others. (inordinate delay in trial). Bail allowed.

Delay in trial. Petitioner in jail for 28 months and trial not likely for another 15 months. Bail allowed by High Court not cancelled. (SC) 1979 SCMR 248. Sher Zaman v. Muhammad Afzal PLJ 1978 SC 416.

Bail on statutory ground available when first bail application was made but that ground was not agitated. Second bail application on the ground of statutory delay cannot be refused just because the ground of delay although available was not taken up in the first bail application. Bail allowed. PLJ 1996 Cr.C (Kar) 534, Muhammad Tahir.

Bail. Delay in disposal of trial. Delay on account of the conduct of the co-accused does not disentitle the accused to the concession of bail. PLJ 1982 Cr.C. (Sukkur) 106. Khuda Bakhsh.

Trial delayed by 3 years and 4 « months, held. High Court rightly released the accused on bail. 1978 SCMR 303. Mir Akbar v. Kala etc.

Non-production of accused from jail, the delay cannot be attributed to the petitioner. Witnesses also not produced. Bail allowed. PLJ 1975 Cr.C. (Lah.) 359 Muhammad Rafiq.

Delay caused in trial by the accused and sec. 497 (1) 3rd proviso. It is evident that calculation of time constituting delay caused at the instance of the defence is not the intention of law in the section. Courts are to see whether the delay is due to the act or omission of the accused or whether the accused was responsible for the delay only partly. 1989 SCMR 1580. Ashiq etc.

Delay caused by counsel not to be considered against the accused for grant of bail on statutory ground. In murder cases if for any genuine reason counsel for accused is unable to appear on a particular date case may be adjourned to next day or 2 or 3 days, thereafter, but if adjournment is granted for a longer period without there being any request from defence counsel, delay thus taking place in conclusion of trial cannot be considered against the accused. PLJ 1996 Cr.C. (Lah) 1713, Muhammad Sadiq etc.

Delay partly caused by counsel of the accused due to adjournments secured by him, hence benefit of 3rd proviso of sec. 497(1) Cr.P.C. could not be given to the accused for bail. 1997 SCMR 32, Syed Abdul Baqi Shah.

Delay in proceedings. Entire delay in the conclusion of the proceedings not on account of the mala fide intention of the prosecution. Held, case not fit for the grant of bail on account of delay. PLD 1975 1975 Lah. 530. Mansab Dar etc.

Delay in disposal of case not contributed to by accused, and no signs of progress in the case. Bail allowed for offences under sections 302/307, 148, P.P.C. 1974 P.Cr.LJ Note 60 Lal etc.

Accused behind the bars for 18 months because of the lethargic attitude of the prosecution in conclusion of the trial. Bail allowed for offences u/Ss. 409,420,468,471/109 PPC in the sum of Rs. 10,000,000/- with 3 sureties each in the like amount. PLD 1997 Lah 26, Senator Lt. Gen. (Retd) Saeed Qadir.

Delay of 9 months: Petitioner in prison for 9 months; no specific part ascribed to him: fire-arm injuries on his person unexplained. Bail in case under section 302, PPC etc. granted. PLJ 1974 Cr.C. (Lah.) 550 Shahbaz Khan.

No discretion of Court left while considering grant of bail u/s. 497 (1) third proviso. The word shall is not to be read as may. 1983 SCMR 341. Saleh Muhammad 1983 SCMR 72, Nazir Hussain v. Zia-ul-Haq. (SC) NLR 1983 Cr. 6.

Two years in custody and trial not commenced as co-accused could not be apprehended being a military employee. Held, delay was not attributable to the petitioner, bail allowed for case u/Ss. 302,307, PPC 1983 SCMR 427. Wazir Khan.

Trial not concluded within two years. Sessions Court allowed bail which was cancelled by High Court. Supreme Court allowed bail holding, that the act or mission of one co-accused would not deprive other accused of benefit of bail for delay as the other accused were not responsible for delay. Fact that the counsel representing the accused was busy in other professional work and could not attend the trial will not ipso facto be construed a justification for delaying trial. 1984 SCMR 613. Shauki.

2 « years in jail in a murder case without trial, bail refused with a direction that petitioner's case be separated from the absconder's case and to start the trial. The prosecution had contended that the delay was attributable to the accused as his brother was absconding with the purpose of delaying the trial to get bail for the petitioner. 1990 SCMR 607 Iftikhar Ahmed.

Delay in trial because of moving bail applications by the accused is not to be considered against the accused for purposes of grant of bail. PLJ 1984 Cr.C. (Pesh.) 102. Samunder Gul.

Bail not allowed under 3rd proviso to sec. 497(1) Cr.P.C. as the delay in the trial was attributed to the accused petitioner. PLJ 1996 Cr.C. (Kar) 1562, Javed Akhtar.

Accused in custody for 3 years as under trial in case u/s. 302, P.P.C. Delay of only 6 months attributed to the petitioner. Bail allowed. 1985 SCMR 1509 Abdullah.

Bail granted 3 months before expiry of 2 years as further delay was likely. Supreme Court cancelled the bail as it has been granted before 2 years. PLJ 1983 SC 211. Saleh Muhammad.

Mere apprehension of delay in trial is no ground for bail. 1976 P.Cr.LJ 1446. Ismail. PLJ 1982 SC 627 Nazir Hussain.

Accused not produced in Court from jail and no progress made in the case for 6 months. Bail allowed. 1977 P.Cr.LJ 5471 Abdul Ghani.

Trial not concluded within one year. A large quantity of heroin recovered from car driven by the accused. Accused not responsible for delay in trial. Bail allowed, 1990 SCMR 1090. Tariq Butt.

Delay of one year. The petitioner attributed only one dang blow on the arm of the deceased. Only one witness examined during one year. He too was to be re-examined after the arrest of absconder. Petitioner granted bail. PLJ 1974 Cr.C. (Lah.) 375 Haji Muhammad. (2 « years delay by C.M., bail allowed under section 302). 1974 P.Cr.LJ 448 Falak Sher. PLJ 1976 Lah. 127 Mahboob Hussain.

Delay of one and half years. No witness examined. Bail allowed to the principal accused. Bail allowed to the other accused whom no overt act was attributed. 1975 P.Cr.LJ 1276 Talib Hussain.

Delay; 18 months in jail; petitioner attributed only a minor role in the murder case in a jail for 18 months. Bail allowed. PLJ 1975 Cr.C. (Lah.) 439 Ghulam Hussain.

Eight years delay. 6 persons were murdered. Long delay in inquiry ad callous disregard of prosecution to procure presence of some accused. Not a single witness examined and the accused rotting in jail for 8 years. Sessions Judge directed by Supreme Court to consider case of the accused at par with those accused released on bail by him. (SC) 1971 SCMR 196 Maula Bakhsh etc.

Delay. Bail granted to the principal offender on the ground of delay of: (Accused arrested on 28-7-1972 bail granted on 29-5-1973 by High Court) in a murder case. Supreme Court refused to cancel bail. (SC) Criminal Petition for Special Leave to Appeal No. 202 of 1973, decided on 11th October, 1973-Not reported.

Trial not concluded within two years, held nature or seriousness of offence committed cannot deprive applicant from statutory right of bail by provisos (iii) to section 497, Cr.P.C. Bail allowed. PLJ 1988 Cr.C. 219 Mashooq etc.

Bail allowed on statutory ground not cancelled as the delay was not attributable to the accused but was caused by the co-accused of the respondent. 1998 SCMR 228, Shaukat Ali v. Ghulam Abbas etc.

Abscondance and statutory delay: Abscondance of accused does not disentitle him to bail on account of statutory delay which right accrues to him after his arrest and statutory period having expired as mentioned in clause (a) or (b) of 3rd proviso to sec. 497 (1) Cr.P.C.. If accused himself has contributed to the delay in trial he would not be entitled to bail on statutory ground. Bail refused. 1998 SCMR 190, Sher Ali.

Commencement of trial or likelihood of its conclusion in near future is no ground for refusing bail when prescribed period u/s. 497 (1) proviso (3) has expired. NLR 1988 Cr. 228 Ahmed Hassan Shah.

Trial not concluded within one year bail u/s. 497 (1), Cr.P.C. can only be refused when it is on record that the petitioner is desperate, hardened or dangerous criminal. When no such thing found against the petitioner bail was allowed. 1990 SCMR 1045 Ghulam Sarwar.

Trial not concluded within two years: High Court granted bail u/S. 497 (1), Cr.P.C. to the accused whose trial for offences u/Ss. 302,307,148/149, P.P.C. had commenced and was shortly to be concluded. The petitioner had remained in jail for 5 years. Held, consideration such as commencement of trial are foreign to first and second provisos and quite irrelevant in a case not hit by restrictions on provisos. NLR 1988 Cr. 359 Ahmad Hassan Shah.

Habitual offender is not a person against whom some cases are pending and he is on bail, and is not a previous convict. Petitioner under detention for more than two years. Trial not concluded. Without sufficient material. He cannot be regarded as desperate and hardened criminal. Bail allowed. PLJ 1987 Cr.C. (Q) 421. Nazar Muhammad etc.

Dangerous, desperate or hardened criminal? Petitioner charged for committing two murders. The per se does not lead to the conclusion that he is a dangerous, desperate or hardened criminal, nor the fact that his brother or other relatives are wanted in number of cases, it does not disentitle him to the concession of bail. PLJ 1987 Cr.C. (Kar.) 28. Wazir Ali etc.

"Hardened, desperate or dangerous criminal", the words used in sec. 497 can be applied to the accused, considering the manner in which the offence, for which the bail is sought, was committed by them. Whether the murder was committed in a brutal manner. When no such indication is there the accused are not considered hardened, desperate or dangerous criminals. 1993 SCMR 525, Jallal v. Allah Yar.

Desperate and dangerous character u/S. 497 (4th proviso), Cr.P.C. for bail can be determined from the cumulative effect of the following factors: (1) Nature of accusation and conduct of the accused at the time of the incident, (2) previous record of the accused, (3) reports of the police officers and the jail authorities concerned. PLJ 1989 (Kar.) 257 Jumoo.

Desperate and hardened criminal can be said about a person against whom some other cases of criminal nature are pending. It is not necessary that he should have been convicted of those offences. NLR 1986 Cr. 850. Muhammad Hanif.

Brutal murder can only be committed by hardened, desperate and dangerous criminal, hence 3rd proviso to Sec. 497 (1), Cr.P.C. does not apply because of 4th proviso. Bail refused. NLR 1988 Cr. 527. Habib-ur-Rehman etc.

Heinousness per se is no ground for refusing bail when case fell u/s. 497 (2) Cr.P.C. Bail was allowed for offences u/Ss. 341, 427/34 PC. PLJ 1995 S.C. (AJK) 47, Zahid Pais.

"Hardened, desperate or dangerous" in exception clause of Sec. 497, Cr.P.C. relates not only to the material produced by prosecution but also to the facts of the case in which bail is sought. The cases in which the petitioners were acquitted cannot be considered against them, for holding them as hardened criminals etc. PLJ 1989 SC 1. Moundar etc.

Hardened, desperate or dangerous criminal as mentioned in Sec. 497 91) Cr.P.C. It is not necessary to prove that he had been previously convicted for the reason that previously convicted persons are separately dealt with in fourth proviso to section 497 (1) Cr.P.C. 1998 SCMR 190, Sher Ali.

Desperate, hardened or dangerous criminal cannot be called a person, because he killed his wife on suspicion of bad character. Held, entitled to bail because of his continuous detention in jail for two years without conclusion of trial. NLR 1989 Cr. 45. Muhammad Nawaz.

16 injuries on deceased do not make the accused petitioner a dangerous criminal for refusing bail under 3rd proviso to Sec. 497 (1), Cr.PC Bail allowed. PLJ 1989 Cr.C. (Pesh.) 154 Asif Mahmood.

Responsibility for delay lies on the prosecution when proceedings are adjourned for non-appearance of absconding accused as well as non-production of co-accused from jail and non-production of prosecution evidence. 1976 P.Cr.LJ 762. Muhammad Akram.

DELAY IN FIR

Delayed F.I.R. F.I.R. against petitioner after 20 days; prosecution story against normal human conduct. Further inquiry yet to be made. Bail allowed in case under section 302/307, P.P.C. PLJ 1975 Cr.C. (BJ) 27 Ali Muhammad.

48 hours delay in lodging F.I.R. not explained satisfactorily, and the parties having strained relations. Prosecution story not corroborated, bail allowed for offence under section 307, P.P.C. 1975 P.Cr.LJ 1265 Taja.

FIR lodged after 2 days delay, accused behind the bars for over 6 months and challan not submitted to the Court, case needing further inquiry, bail allowed for offences u/Ss. 324, 337-A, 148, 149 PPC 1994 P.Cr.LJ 86, Mhanda.

FIR delayed by 4 hours. Alleged crime guns not connected with firing. Injured P.Ws. neither identifying the petitioners nor naming them in their statements before police. Bail allowed. 1978 P.Cr.LJ 150. Abdul Hamid Khan.

4 days delay in FIR and cross-case. Possibility of introducing facts in order to change the nature of the offence existing. Bail allowed. 1976 P.Cr.LJ 1021 Shah Ali etc.

FIR delayed by 7 days and no marks of violence on prosecutrix who was found to be habitual to sexual intercourse. Held, prosecutrix could not be believed per se. Bail allowed. 1990 P.Cr.LJ 1362 Aziz alias Kala.

FIR delayed by 14 days, delay not explained. Bail allowed in case u/Ss. 302, 201, P.P.C. 1986 SCMR 938 Karim Haider etc.

FIR lodged after 20 days of occurrence. Alleged witnesses not named in the FIR and the statement u/s. 161 Cr.P.C. recorded after 21 days. Bail allowed. 1993 SCMR 1321, Muhammad Riaz Munna.

Delay of 3 years and 4 months in lodging FIR not explained. Offence u/S. 16/18. Offence of Zina Hudood Ordinance. Parties inimical. Bail allowed. PLJ 1997 Cr.C. (Kar) 157, Ghulam Muhammad etc.

Delay of one month and 11 days in lodging FIR was enough to cast doubt upon the prosecution case and reasonable grounds existed for believing that the accused might not have committed the offence. Bail allowed for offences u/Ss. 302,328, 109/34 PPC. 1994 P.Cr.LJ 87, Amjad Ali.

FIR lodged after 20 days and police statement recorded after 21 days of occurrence. Witnesses not named in FIR. Bail allowed. 1993 SCMR 1321, Muhammad Riaz Munna.

Delay in lodging FIR alone is never considered a circumstance sufficient for grant of bail in a case involving capital punishment. 1995 SCMR 1765 Haji Gulu Khan v. Gul Daraz Khan.

DELAY IN CHALLAN

Challan not in Court within 14 + 3 days: See Sec. 173(b) Proviso Cr.P.C. (Act XXV of 1992 w.e.f. 12.12.1992) Held, detention illegal correct procedure not followed. Appellant acquitted. PLJ 1995 Cr.C. (Kar.) 420, Mooso (D.B.)

Delay in challan for one year. Not known when trial shall commence. Bail allowed, in case u/Ss. 302,307,380, P.P.C. NLR 1985 Cr. 746. Hakim Ali.

Bail not cancelled when challan completed and case ripe for trial for offence u/S. 10(2) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 PLJ 1999 Cr.C. (Pesh.) 238 Shahnaz Bibi v. Gul Khan, etc.

Investigation not completed within 3 months and likely to take still more time. Bail allowed for offences under sections 406/419, 420, 468, 471, 409,480, P.P.C. PLJ 1974 Cr.C. (Lah.) 578 Ashiq Ali.

Challan not put up for 4 months. Accused lodged in jail as under-trial prisoner without trial. Accused had a right to be admitted to bail. 1971 P.Cr.LJ 49 Farzand Ali. PLJ 1974 Cr.C. (Lah.) 234.

Challan not in Court for 5 months, accused charged under section 302/34, P.P.C. released on bail. PLD 1959 Kar. 157 State v. Samiullah etc. contra. 1977 P.Cr.LJ 468 Fazal Hussain.

Challan not submitted for 5 months. Bail allowed in zina case. Speedy trial is the right of the accused. NLR 1982 Cr. 663 Ghulam Muhammad etc. NLR 1982 Cr. 663.

Challan not put in Court for 5 months. Petitioner in jail. Bail rejected. Shan v. State not followed. 1976 P.Cr.LJ 283 Karim-ud-Din etc.

Challan not put in Court for 6 months. Bail granted by Sessions Judge in murder case not cancelled by High Court. PLJ 1975 Cr.C. (Lah.) 169 Amir v. Bakhshu etc.

Delay and bail challan not put in court even after 6 months of occurrence. Accused granted bail for offence under section 307, P.P.C. (SC) 1969 P.Cr.LJ 356 Muhammad Zakria.

Even incomplete challan not submitted 10 months after F.I.R., held case fit for grant of bail PLJ 1980 SC 350, Zahoor Hussain.

Challant not put in Court for over 7 months. Accused in jail at time of occurrence. Uncorroborated confession made 7 months after occurrence. Bail allowed in murder case. 1975 P.Cr.LJ 128 Khuda Bakhsh etc.

Delay of 14 months in putting up challan. Abscondence of one accused cause of such delay. Bail not granted. PLD 1973 Lah. 366 Shahban.

Accused in judicial lock-up, no longer required for investigation. Sanction for prosecution to be obtained. Handwriting expert's opinion awaited. Presentation of challan to Court to take some time Bail allowed for offences under section 420/465/468/471, P.P.C. 1974 P.Cr.LJ 600 Muhammad Ghazi Khan.

Investigation to take long time. F.I.R. containing main allegation against co-accused. Bail allowed in case under sections 468, 471, 406, 409, P.P.C. PLJ 1974 Cr.C. (Lah.) 490 Khair Din.

DEAD BODY NOT RECOVERED

Dead body not recovered, does not entitle the accused to bail when alleged that the accused after killing carried her dead body with them. NLR 1987 Cr. 597 Ahmed etc.

Dead body not recovered, recovery of incriminating articles after a month. P.Ws. biased. Bail allowed. 1977 P.Cr.LJ 591 Fata etc.

Dead body not recovered, nothing recovered in pursuance of joint extrajudicial confession. Bail allowed. PLJ 1988 Cr.C. (Lah.) 573 Mahmood Ahmed.

DEFENCE OF PAKISTAN RULES & BAIL

Bail under D.P.R. Grant of bail to persons arrested under D.P.R. by superior Court has now been expressly taken away by amendment of Arts. 187 and 199 of the Constitution and section 13 of Defence of Pakistan Ordinance, 1971. (SC) PLJ 1977 SC 329. State v. Zahoor Elahi.

Defence of Pakistan Rules. For bail also see Defence of Pakistan Ordinance XXX of 1971 and Rules.

Amended law. Because of section 13-A in the Ordinance XXX of 1971 as amended by Ordinance XXIX of 1976 bail cannot be granted by any other Court except the Special Tribunal.

Defence of Pakistan Rules; and application under sections 497, 498, Cr.P.C. read with D.P. Rule 210: bail allowed for an offence under D.R. Rule 49 when the police action was held to be mala fide 1976 P.Cr.LJ 533 Zaheer Ahmed etc.

And application under section 498, Cr.P.C. by an accused facing trial before Special Tribunal under Defence of Pakistan Ordinance 1971, held not competent in law. (DB) PLD 1976 Kar. 869. Muhammad Yasin. Also see PLJ 1976 SC 371 Zahoor Illahi (minority view).

Majority view to the contrary jurisdiction of the High Court to grant bail under section 498, Cr.P.C. is not ousted under section 31 of Ordinance XXX of 1971. High Court also grant bail under section 561-A, Cr.P.C. and Art. 199 of the Constitution. contra PLJ 1976 SC 371 Zahoor Illahi.

Defence of Pakistan Rules High Court has power to grant bail when it appears that the case does not fall under Rule 42. PLJ 1976 Kar. 12 Abdul Aziz.

"If case does not fall within the scope of rule 42. High Court can grant bail otherwise not. 1974 P.Cr.LJ 559 Kadir Bakhsh.

Defence of Pakistan Rules and Bail Provisions of Cr.P.C. section 498 etc. regarding bail do not apply to cases under D.P. Rules. See Section 9, Defence of Pakistan Ordinance (XXX of 1971), and D.P. Rules, 1971, rr. 42 and 49. PLD 1973 Kar. 674 Illahi Bux. PLJ 1974 Cr.C. (Kar.) 60. Muhammad Ismail. PLD 1974 Kar. 29.

Sec Defence of Pakistan Ordinance also for bails.

EARLY HEARING OF CASE AND BAIL

Early hearing suggested by Supreme Court instead of bail, pending appeal in High Court. 1976 SCMR 134 Wahid Bakhsh.

Appeal to be heard early. Appellant sentenced to transportation for life. No grounds for bail. Appeal ordered to be heard at an early date. Unreported case. Cr. Misc. No. 1 of 1968 in Cr.A. 89 of 1968 Lahore High Court. Arshad Mahmood.

Hearing of Appeal ordered to be expedited. Appellants sentenced to transportation for life, bail refused. The Supreme Court directed the High Court to expedite the hearing of appeal. Unreported case: (SC) Cr.P.S. L.A. 52 of 1974. Ghulam Mustafa etc. v. State. On application being presented to the High Court with the orders of the Supreme Court in Cr. Misc. No. 4 of 1974 in Cr. A. 536 of 1973 the High Court dismissed the application with the remarks that the appeal cannot be heard out of turn.

Bail application not disposed of on merits, but trial Court ordered to decide the case within two months failing which the trial Court shall release the petitioner on bail. It amounted to withholding the bail for a specified period. Case remanded to High Court for decision on merits within shortest possible time. 1993 SCMR 65, Khan Muhammad and another.

Direction for expeditious disposal of inquiry proceedings issued by Supreme court on the prayer of the Counsel when bail not granted. PLD 1974 SC 40 = PLD 1974 SC 83. Iqbal-ur-Rehman.

Case to be fixed shortly for evidence cannot disentitle the accused to bail if otherwise he is so entitled. PLD 1989 Lah. 233. Muhammad Saleem.

Fixation of case for prosecution evidence cannot disentitle the accused to bail. Accused should not be detained in jail when his case is covered by Sec. 497 (2), Cr.P.C. NLR 1989 Cr. 517. Muhammad Saleem.

Case for trial already fixed, hence no ground for leave to appeal for grant of bail made out. 1990 SCMR 307 Allah Ditta.

EVIDENCE INSUFFICIENT

Statement of two P. Ws. made before a Magistrate, exonerating accused stating that they were not present at the time of occurrence. Held the accused entitled to bail (in case under sections 302, 354, 366, 148/149, P.P.C.) in the circumstances 1973 P.Cr.LJ 283 Pervaiz Ahmad and another.

Insufficient evidence. Prosecution case resting on:

1. Extra Judicial Confession.

2. Seen carrying an unidentified person on a cot.

3. Recovery of blood stained cots 2 « months after occurrence. Bail allowed 1979 P.Cr.LJ 26 Sultan Ahmad.

No eye-witness, only weak circumstantial evidence and extra-judicial confession of co-accused against the petitioner. Bail allowed u/Ss. 302, 377/34, PPC. PLJ 1975 Cr.C. (Lah.) 13. Muhammad Ashraf etc.

Extra judicial confession of co-accused only evidence against the petitioner. bail allowed. 1975 P.Cr.LJ 1330 Muhammad Ashraf.

Evidence of last seen and extra judicial confession to two unimportant persons held improbable as such case covered by section 497 (2). Bail allowed. 1977 P.Cr.LJ 455. Ghulam Muhammad etc. 1975 P.Cr.LJ 1330 Muhammad Ashraf.

Extra judicial confession and wajakar evidence, recorded after 9 days of and last seen evidence after 6 days of occurrence. Held no reasonable ground to believe that the accused was guilty of the offence. Bail allowed, in a murder case. PLJ 1989 Cr.C. (Lah.) 382. Nazir.

Bail during trial proceedings declined by Supreme Court on ground of insufficient evidence, as evidence is not to be sifted to assess its value by the Supreme Court. However, trial Court directed to conclude the trial expeditiously. 1991 SCMR 2450. Naseebullah.

FREE FIGHT AND SUDDEN FIGHT

Free and sudden fight. Simple injuries attributed to X.Y. and Z. accused. In a a free fight each person responsible for his own act. Question whether it was a sudden fight needing further inquiry. Bail allowed for offences under section 302/148/149, P.P.C. PLJ 1974 Cr.C. (Lah.) 363 Asghar.

Free fight. Facts disclosing free fight between parties, petitioners receiving 24 injuries but the fact suppressed in F.I.R. Held each accused responsible for his own individual act. Petitioners not causing death entitled to bail. 1977 P.Cr.LJ 460 Ghulam Nabi etc.

Free fight and bail. Free fight between two parties, injuries sustained by both the sides. Accused not attributed fatal blows admitted to bail. PLJ 1977 Lah. 495. Karim Bakhsh.

Sudden quarrel, yet to be determined whether the two accused shared common intention. Bail allowed. NLR 1987 Cr. 465. Dost Muhammad etc.

Sudden fight, no pre-planning the accused who were not assigned any injuries to the deceased allowed bail while the petition of the accused causing fatal injuries rejected. 1974 P.Cr.LJ 431 Fakir Muhammad etc.

FRESH OR SUBSEQUENT APPLICATION

Subsequent bail applications in the same case are to be heard by the same learned judge who heard the first bail application, even though he be posted to a different bench, unless it is not possible for that judge to hear the case. In that case the subsequent bail application can be heard by a different Judge on the orders of the Chief Justice. The bail application of the co-accused is also to be heard by the same learned Judge. PLJ 1986 SC 369. State v. Zubair.

Bail application dismissed as withdrawn. Fresh bail application to be heard by the same judge who had dismissed the earlier bail application although it has been withdrawn. Order of dismissed as withdrawn is sufficient to attract the ratio as laid down by the Supreme Court in Zubair's case PLD 1986 SC 173 referred. 1996 P.Cr.L.J. 370, Shaikh Rasheed Ahmed.

Interim bail confirmed by another Judge of High Court When the judge who granted interim bail was available at the principle east of the High Court. Following case of State v. Zubair, (PLD 1986 S.C. 173), order confirming the interim bail was set aside and the bail application was directed to be placed before the judge who had granted the interim bail to the accused. 1997 SCMR 1336, Muhammad Taj v. Muhammad Akhtar etc.

Successive bail applications: when the previous order on bail application is not passed on merits, held, it is not necessary to send the subsequent bail application to the same judge for disposal who had passed order on the previous application. Bail allowed as the accused had not caused injury to the deceased and the ocular evidence was in conflict with the medical evidence. PLD 1996 Kar 382, Shamsud-Din-Mir Jat.

Dismissal of previous bail application to be mentioned when making fresh bail application. Concealment of the fact amounts to serious misconduct. PLJ 1996 Cr.C. (Kar) 700, Omair Ahmed Siddiqui.

Duty of counsel and client to inform the Court whether any other bail application was made earlier by the petitioner or his co-accused. (DB) PLD 1975 Lah. 754. Abdul Ghafoor.

Suppression of fact of previous bail application having been dismissed penalised by Supreme Court by cancelling bail granted by High Court. PLJ 1986 SC 179. Shahadat Ali v. Mubarak Shah.

Fresh ground for bail is a ground which was not available to the petitioner when first bail application was disposed of, and not that the ground was available but it was not urged or pressed. PLJ 1986 SC 369. State v. Zubair etc.

Second bail application entertainable when first bail application neither urged, pressed nor considered on bail aspects and dismissed with observation. Not entitled to bail at this stage. PLD 1985 Lah. 571. Mst. Raqia Parveen.

Fresh application Petitioner showing his case having not been considered in all its aspects. Fresh application not barred by law. 1980 P.Cr.LJ 602. Vikio v. Abdullah etc.

Fresh bail application can only be made on new ground which were not available at the time of the first application. PLJ 1983 SC 211 Saleh Muhammad.

Fresh bail application on grounds for which previous bail application was dismissed is not competent. PLJ 1993 Cr.C. (Quetta) 450, Sabz Ali etc. 1968 SCMR 289 and 1970 SCMR 14 relied upon.

Bail petition on fresh grounds may be heard by a judge who did not hear the previous petition. Such case is not covered by Khan v. Sajawal etc. PLD 1984 SC 341 = PLD 1985 Lah. 134. Iqbal.

Fresh bail application is not barred even in absence of fresh material. Section 369, Cr.P.C. is not applicable to order disposing of bail application PLD 1980 Lah. 127. Saleem Akhtar.

Fresh bail application can always be moved if it is shown that the case has not been considered before, from all aspects. PLJ 1980 Cr.C. (Kar.) 466. Ayaz Ali.

Fresh application can be moved for bail at a subsequent stage when earlier application dismissed, there being no grounds of bail at that stage (SC) 1970 SCMR 481 Shah Muhammad v. Muhammad Yousaf.

Sessions judge who dismissed the first bail petition should hear the subsequent petition on fresh grounds. 1984 SCMR 134 Muhammad Yousaf.

Bail, second application can be decided by another judge, when the first judge is not available. PLJ 1985 Cr.C. (Lah.) 75. Muhammad Iqbal.

Subsequent order in bail application does not amount to review. Section 369, Cr.P.C. does not apply to orders on bail. High Court is empowered to examine question of cancellation of bail from various angles. Order cancelling bail and later granting bail by the same Court does not amount to review of earlier orders. 1981 SCMR 35. Muhammad Ismail v. Hidayat Ullah etc.

Judgment in bail petition under section 498, Cr.P.C. is not controlled by section 369, Cr.P.C. High Court can review its order in suitable cases. Order u/S. 498, Cr.PC is not judgment. (SC) PLD 1970 SC 355 Gulzar Hussain Shah v. Ghulam Murtaza PLJ 1977 SC 466 = PLD 1977 SC 602 Amir-ud-Din.

Fresh petition for bail to be heard by the judge who dismissed the previous bail application. One judge of High Court expressing himself strongly against grant of bail. Another judge of the High Court, in accordance with long established practice and rule of propriety, when moved for grant of bail should transfer such application for disposal by first judge to avoid two contradictory orders being passed in the same case by the High Court. (SC) 1968 SCMR 924 Faird v. Ghulam Hussain.

Fresh bail application normally to be heard by the same judge who disposed of the previous application. Petition could be competently sent to Lahore from Rawalpindi Bench so that it could be heard by the same judge. PLJ 1984 SC 334. Khan Beg v. Sajawal. PLJ 1986 SC 369, State v. Zubair.

Zubair' case not applicable when trial is being conducted by another Judge. Bail application shouldbe made to the trial judge. Circular of Lahore High Court No. 10174 MIT/HC ¬ Cr. Misc. 382-CB/94 dated 4.7.1997 has directed: "Rule in Zubair's case shouldbe applied as far as possible...However after commencement of trial all bail applications arising out of the case should be entrusted to trial Court. PLJ 1998 Cr.C. (Lah.) 842, Ghulam Yaseen v. Muhammad Nawaz.

Fresh application for bail to the High Court lies on fresh grounds, otherwise not, as a criminal Court cannot review its own orders. However, such application should be disposed of by the Judge who heard earlier application. (SC) 1971 SCMR 789. Muhammad Khan v. Muhammad Aslam and others.

Bail, second application can be decided by another Judge when the first Judge is not available. PLJ 1985 Cr.C. (Lah.) 75. Muhammad Iqbal.

FURTHER INQUIRY CASES

Further evidence not likely to improve the prosecution case. Accused in jail for 9 month natural eye-witnesses and recovery witnesses exonerating the accused in a murder case before C.M. Further evidence not likely to improve the prosecution case. Bail allowed. 1976 Cr.LJ 876 Muhammad Ismail. 1975 Cr.LJ 884. Muhammad Ehsan.

Who caused the fracture of arm bone when one sota blow each was given by two accused. Case being of further inquiry bail allowed. 1994 P.Cr.LJ 511, Allah Bakhsh.

Further evidence not likely to improve the prosecution case. Two eye-witnesses not supporting the prosecution case. Bail allowed for offences under section 302/34, PPC. PLJ 1974 Cr.C. (Lah.) 578 Muhammad Rafi.

When further inquiry needed regarding petitioner's implication in a murder case bail allowed. PLJ 1975 Cr.C. (Lah.) 95 Zafar.

Merely because it is a case of further inquiry without fulfilling other conditions of sub-section (2) of section 497, Cr.P.C. does not entitle the accused to bail, PLJ 1988 SC 298 Asmat Ullah Khan v. Bazi Khan etc. PLD 1988 SC 621.

Case of further inquiry. Yet to be determined which party was aggressor. Doctor declaring injuries as not direct cause of death, but death due to blood transfusion. Bail allowed. PLJ 1994 Cr.C. (Lah.) 31, Fateh Khan.

Mere need for further inquiry is no ground for grant of bail unless it is held that there were no reasonable grounds to believe that the petitioner had committed a non-bailable offence. Bail cancelled. 1991 SCMR 1849. Mst. Rehman Jan v. Abdul Rehman.

Case of further inquiry is that where the Court finds that there are reasonable grounds to believe that the petitioner is not guilty of the offence charged and in such a case he can claim admission to bail as of right, even irrespective of the fact that he had been an absconder 1989 SCMR 899. Najeeb Gul v. Khalid Khan.

Petitioner involved in case u/s. 302/34 PPC on account of supplementary statement of the first informant which can be considered only at the time of the trial. No recovery from the accused. Held a case of further inquiry. Bail allowed. PLJ 1996 Cr.C. (Lah.) 1092, Ibrar Hussain.

Abductee not recovered. It is only the abductee who can prove whether she was abducted. FIR admittedly delayed and there is no plausible explanation for the inordinate delay. Held, a case of further inquiry, bail allowed. PLJ 1994 Cr.C. (Kar.) 425, Wali Muhammad.

Last seen evidence and joint extra-judicial confession could only be evaluated during trial. Held case of further inquiry. Bail allowed, in case u/Ss. 302, 337, 364 PPC. PLJ 1996 Cr.C. (Lah.) 1808 Jahangir etc.

Extra Judicial confession only evidence against the petitioner in case u/s. 302, 379, 411/34 PPC with no other material to corroborate the extra judicial confession, held, matter of further inquiry. Bail allowed. PLJ 1996 Cr.C (Lah.) 104, Shakeel Ahmed.

"Bail to be allowed as a matter of right". and not as a matter of grace or concession when there are no reasonable grounds to believe that a person is guilty of an offence punishable with a non-bailable offence but there are grounds of further inquiry. Bail allowed for offence u/s. 302 PPC. PLJ 1996 Cr.C. (Lah.) 374, Misal Din.

Further inquiry is called for when vicarious liability is yet to be determined where out of several accused one causes fatal injury. Bail allowed. (DB) PLJ 1986 Cr.C. (Kar.) 141 State v. Aziz.

Matter still pending investigation, in a murder case, and further inquiry yet to be made into allegations against accused. Accused, held, entitled to bail under section 497 (2), Cr.P.C. 1971 P.Cr.LJ 1307 Muhammad Ashraf Mir.

Bail before completion of investigation. In such cases, the Magistrate can require the accused to appear before police when required. AIR 1945 Lah. 215.

Prima facie right of private defence. The question whether accused exceeded his right requires further inquiry. Bail allowed u/S. 302, P.P.C. (SC) PLJ 1978 SC 356. Mitho. 1978 SCMR 231.

Plea of self-defence getting strong support from evidence recorded by police which was found to be reliable. Held, a case of further inquiry. Bail allowed NLR 1987 Cr. 360. Muhammad Hanif.

Plea of the accused not examined by the investigating agency regarding the statement of the approver. Held, a case of further inquiry. Bail allowed. 1989 SCMR 2071. Lt. Gen. Fazale Haq.

Case of further inquiry. Prosecution version leaving much to be inquired into, held case to be one of further inquiry, bail allowed. 1979 SCMR 103. Falak Sher.

Further inquiry case for bail u/s. 497 (2), Cr.PC can only be pressed into service when it is proved that either the police officer or the Court has held that there are no reasonable grounds to hold that the accused is guilty of any non-bailable offence. When such opinion is recorded the accused is to be released on bail as of right otherwise not. 1985 SCMR 382 = PLJ 1985 SC 243. Ibrahim v. Hayat Gul etc. 1985 SCMR 195. Abbas Ali v. Khamiso.

Further inquiry case. One petitioner accused of causing head injuries. No mention of head injury in FIR. Another accused of strangulation. Post Mortem report not disclosing any mark of ligature. Case held to be of further inquiry. Bail allowed. (SC) 1978 SCMR 285. Nazir.

13 out of 18 accused held innocent by police, does not make it a case of further inquiry against the remaining 5 accused. Bail petition rejected. PLJ 1980 SC 95 Ghulam Rasul.

Turn of irrigation water and cross-case. Fight over turn of irrigation water, fate of the case depending on the fact whether new warrabandi had or had not come into force at the time of occurrence. This fact yet to be determined. Accused enlarge on bail. 1973 P.Cr.LJ 74 Wali Muhammad.

GRAVE AND SUDDEN PROVOCATION

Grave and sudden provocation. Bail allowed when the accused found the deceased having illicit intercourse with his wife in the house of the accused, and killed him FIR also delayed by 16 hours. PLJ 1985 Cr.C. (Kar.) 422 Allah Bachayo. NLR 1984 SCJ 256. Rehman etc. and 1982 SCMR 301. Muhammad Sadiq v. Muhammad Rafiq etc. ref.

Defence plea can be considered at bail stage. Plea that the petitioner acted under grave and sudden provocation was supported by material collected by the investigation. Because of grave and sudden provocation the offence was not likely to be punished with 10 years imprisonment or over. Accused in custody for over a year. Bail allowed for offence u/S. 302 PPC. PLD 1994 Lah. 129, Muhammad Saddiq.

Double murder under grave and sudden provocation. Petitioner killed his own daughter and chased and killed the paramour under grave and sudden provocation. Bail allowed. PLJ 1980 Cr.C. (Lah.) 171. Rehmat Ali.

Killing sister and her paramour on seeing them in compromising position does not amount to Qatle-amd because deceased in such a case is not "Masoom-ud-dam". Bail allowed. PLJ 1997 Cr.C. (Lah.) 1640 Muhammad Faisal.

Bail-Grave and sudden provocation. Wife and cousin found in compromising position and done to death. Bail allowed. 1979 P.Cr.LJ. 72. Ghulam Hussain.

Grave and sudden provocation caused when accused saw the deceased in compromising position with his wife in his own house and killed him. Bail granted by High Court not cancelled. 1982 SCMR 301. Muhammad Sadiq v. Muhammad Rafiq.

Petitioner killed the deceased when finding him pari-delicto with his sister and grievously injured his sister, considering himself to be justified in law (u/S. 76 and 300 PPC) in furtherance of maintaining pure and ethical atmosphere in Islamic Society. Bail allowed. PLJ 1994 Cr.C. (Lah.) 471, Liaqat Ali.

Petitioner allowed bail u/s. 302 PPC for strangulating his daughter with a dopatta when he saw her embracing a young man, as the act of the petitioner was because of ghairat. PLJ 1996 Cr.C. (Lah.) 494, Atta Hussain.

GOVERNMENT SERVANT

Government servants must be allowed bail for offences like 406, 408, 409, 468, P.P.C. as it would be a poor consolation if a Government servant were to be discharged or acquitted after he had remained in custody for a long time. Bail before-arrest confirmed. PLD 1969 Pesh. 49 Ch. Bashir.

Petitioners (Police Officers) not allowed pre-arrest bail by the Supreme Court for offences u/Ss. 364, 342, 337 (L) (II), 148, 149 PPC and Sec. 5(2) of Prevention of Corruption Act 1947. The petitioners had taken law into their own hands by beating and detaining complainant in custody without any legal justification. Pre-arrest bail can be granted only in those cases where it appears that the case was based on enmity, mala fide or where no offence was made out. PLJ 1996 S.C. 793, Muhammad Arshad etc.

S.H.O. murdered an accused by torture during investigation and gave it a colour of suicide. Judicial inquiry revealed death of the accused by torture by S.H.O. Bail refused. PLD 1997 Lah 191, Muhammad Ashraf Gondal.

Government servants accused u/Ss. 420, 468 PPC and Sec. 5(2) PCA 1947 and arrested. Bail allowed as the offences did not fall under the prohibitory clause of sec. 497 Cr.P.C, and being Govt. Servants there was no apprehension of their abscondance. PLJ 1995 Cr.C. (Pesh) 180, Irshad Ahmed Khan.

Servants of smugglers allowed bail as their act was not at par with the offence committed by owner of the launch who was the real beneficiary of the smuggled goods and disappeared. He was yet to be brought to trial. (SC) 1976 SCMR 190 Noorul etc.

HABEAS CORPUS, WRIT AND BAIL

In writ of habeas corpus under article 199 bail allowed by High Court as the case was very old, and the manner of detention was unlawful. PLJ 1976 Lah. 206 Zahoor Elahi (MNA).

Bail in writ petition. Bail application cannot be kept pending till disposal of main petition challenging validity of petitioner's conviction. No possibility of disposal of case by High Court for quite some time. Bail allowed. PLD 1976 Quetta 176, Sardar Bahadur Khan.

Habeas corpus and bail. Case against the detenus registered after filing of habeas corpus petition. Detenus ordered to be released on bail. 1976 P. Cr.LJ 1054, Muhammad Ali v. S.H.O.

IDENTIFICATION DELAYED OR DOUBTFUL

Delay in identification parade. Identification parade held 6 months after occurrence. Petitioner not named in F.I.R. Bail allowed. 1978 P.Cr.LJ 859. Muhammad Ali.

Identification 18 days after occurrence No recovery of incriminating articles. Bail allowed 1978 P.Cr.LJ. 176 Mehar.

Identification at mid-night which certainly is difficult. Statement of P.W. implicating accused recorded after one month. Incident reported after 6 months. bail allowed. 1979 SCMR 60 Sher etc.

Prosecution not getting the accused identified who was not known to the witnesses before, though mentioned by name in the FIR. Bail allowed NLR 1983 Cr. 25. Waqar Yousaf.

INEFFECTIVE FIRING AND INJURIES

Ineffective firing in air and lalkara attributed to the petitioner. Bail allowed. NLR 1987 Cr. 355. Muhammad Niaz.

Ineffective firing attributed, three affidavits about alibi. No direct enmity between petitioner and deceased. No report of ballistic expert received about the matching of empty recovered. Held, case of further inquiry. Bail allowed, for offences u/S. 302/34, PPC. PLJ 1989 Cr.C. (Kar.) 136. Muhammad Awais.

Ineffective firing by co-accused in murder case. Previous enmity existing. No crime empty found. Held, a case of further inquiry. Bail allowed. PLJ 1988 Cr.C. (Lah.) 236. Abdul Haq.

Ineffective firing by the accused and no injury attributed to him. Held, case of further inquiry, bail allowed for offence u/s. 302, 148/149 PPC, 1998 SCMR 454, Muhammad.

Who fired the 4 or 5 ineffective shots not pin pointed in the FIR. No eye-witness was cited though the incident took place out side the house of the complaint in broad day light. Bail allowed for offence u/S. 324 PPC. 1998 SCMR 217, Muhammad Shahid.

Hatchet used from wrong side and only one blow given to each of the two witnesses. Bail allowed u/Ss. 307, 323, 148, PPC. NLR 1984 Cr. 452. Riaz.

No hatchet injuries found on the deceased. Accused alleged to have been armed with a hatchet. Bail allowed. PLJ 1976 Kar. 1202 Allah Dino.

No injury caused fire-arms while injuries with blunt and sharp weapon found on complainant party. Bail allowed to accused allegedly armed with shotgun in case u/Ss. 302, 325, PPC. 1983 SCMR 1288. Abdul Sattar.

Petitioner though armed not firing at the deceased. Deceased killed by another by fire-arm. Petitioner granted bail. 1981 SCMR 771. Sultan Ahmad.

Petitioner armed with revolver not using it, but causing injuries on the legs of the deceased with blunt side of hatchet. Injuries attributed to other petitioner not found on the deceased. Bail u/S. 302, PPC allowed as a case of further inquiry. 1985 SCMR 565. Muhammad Amir etc.

Fist and kick blows only attributed to the petitioner while deceased died of knife blow. Bail allowed. 1972 P.Cr.LJ 749. Ayub James etc. 1982 P.Cr.LJ 1300 = 1985 P.Cr.LJ 265.

Only fist belows attributed to the accused in a case of sudden flare up resulting in death. Accused allowed bail. 1976 P.Cr. LJ 1003 Qasim etc.

No injuries caused to the deceased by the petitioner. Contention that the petitioner cannot be held to be vicariously liable at bail stage is not correct. Bail refused. 1981 SCMR 1082. Munawar.

Simple blunt weapon injury to PW and not deceased. Bail allowed in murder case. NLR 1989 Cr. 145 Samual Masih NLR 1989 Cr. 146 Peera.

Only simple injury attributed to PW in case u/ss. 302, 148/149, PPC, held case requires further inquiry. Bail allowed. NLR 1989. Cr. 447. Khushi Muhammad.

Injuries not caused to the deceased but to a PW. It does not entitle the accused to bail. Each case has to be considered on its own facts and whether section 34 or 149, PPC applies. (SC) 1981 Cr. 85. Munawar.

Simple injuries to PWs and no injury to deceased, bail allowed for offences u/ss. 302, 307, 148, 149, PPC. NLR 1984 Cr. 580 (1) Zulfiqar.

Injuries sustained not on any vital part of the body; contention that the assailant did not intend to cause de admittedly the petitioner/accused nor fire. Held, case required further inquiry u/Ss. 324/337-F(1)/34 PPC. PLJ 1997 Cr.C. (Lah.) 669, Asghar Ali.

Simple injury on leg of deceased attributed to the petitioner. Bail allowed in case u/s 302/34, PPC. PLJ 1985 Cr. C. (Lah) 64. Hidayat etc. PLD 1985 Lah. 201.

Accused armed with deadly weapons causing simple injuries (blunt), though armed with rifle, gun and hatchet using wrong side of weapons to some prosecution witnesses. In the circumstances whether the accused shared common intention with the co-accused who caused death of the accused needed further inquiry. Bail allowed for offences u/ss 302, 324, further inquiry. Bail allowed for offences u/ss 302, 324, 337 - A (II), 148, 149 PPC. 1996. SCMR 1125, Mumtaz Hussain etc.

Accused petitioners not causing injuries to the deceased and one accused not attributed any role in the FIR. Bail allowed for offences under section 302, 307, 148/149, PPC. PLJ 1976 Lah. 302 Mahla etc. 1978 SCMR 146 Khadim Hussain.

Accused empty-handed and not alleged to have caused any injury to the complainant. Bail allowed for offence u/ss 324, 148, 149/109 PPC. 1997 SCMR 445, Munir Ahmed.

Accused armed with rifle, gun and hatchet caused only simple injuries to some PWs using wrong side of weapons. Question whether accused petitioners in such circumstances shared common intention to cause death of deceased needed further inquiry. Bail allowed in case u/Ss. 302, 148, 324, 337-A/149, PPC. Petition converted into appeal and bail allowed (SC) PLJ 1999 SC 727 Mumtaz Hussain and five others.

No injuries attributed to the accused. FIR revealing that the members of the accused and the deceased party both receiving large number of injuries. No injury to the deceased attributed to the accused petitioners. Bail allowed. PLJ 1976 Lah. 768 Ghulam Nabi etc.

Mere presence of empty-handed petitioners at the spot of murder, without causing any injury to the deceased. Bail allowed. PLJ 1996 Cr.C (Lah) 308, Muhammad Mansha etc.

Petitioner present at the spot but no overt act attributed to him held, a case of further inquiry. Bail allowed. PLJ 1996 Cr.C (Lah) 192, Muhammad Hanif.

Mere presence of the accused at the spot and receipt of a cut on an arm could not deprive him of the bail facility. He was found innocent by the investigation agency. Bail allowed. 1996 SCMR 76, Muhammad Ramzan.

Accused empty-handed and attributed no injury to the deceased were granted bail by the High Court. Cancellation of bail was declined by the Supreme Court. 1995 SCMR 310, Mehmood Akhtar etc. v. Haji Nazir Ahmed etc.

Injury ascribed in the FIR not found on the deceased, in post-mortem examination. Petitioner released on bail. PLJ 1983 SC 532 Walayat.

Bails & Bonds

Select Rulings

No injury found on the deceased as was attributed to the petitioner. The petitioner had acted in concert with co-accused and had taken money from the pocket of the deceased after he had been shot dead. Bail not allowed. 1982 SCMR 84 Iqbal.

Injuries attributed to the petitioner not found on the deceased. Bail allowed in murder case. NLR 1983 Cr. 102 Ahmad Yar etc.

Only simple injury given to the deceased and another injury attributed to the accused not found on the person of the deceased. Bail allowed. 1984 SCMR 530. Walayat and another. PLJ 1983 SC 532.

Causing no injuries to the deceased. At best causing simple injuries to the PWs. Bail allowed. 1976. Cr. LJ 1095 Mahla etc. (SC) 1978 SCMR 7 Muhammad Akbar 1978 SCMR 146 Khadim Hussain. 1978 P.Cr.LJ 194. Sultan etc. PLD 1978 Lah. 784 Ghulam Rasul. Contra PLJ 1978 SC 298 Nazar Muhammad. PLD 1976 SC 236.

No injury on vital part of body (307, PPC) raises question of doubt entitling accused to bail. NLR 1984 Cr. 558. Abdullah Khan.

Simple injury attributed to the accused; accused held, to be innocent by the police and placed in Column No. 2 of challan form. Bail allowed for offence u/S. 302, 379, 148/149 PPC. 1994 SCMR 1728, Gulzar Ahmed.

Simple hatchet injury attributed to the petitioner. Death occurred due to the fire-arm injury by co-accused. Held, case of further inquiry. Bail allowed. PLJ 1994 Cr.C (Kar) 427, Shahmir.

Bailÿfor offence u/S. 324 PPC. As the injury is simple in nature the case of the petitioner is one of further inquiry. petitioner neither a previous convict nor a hardened criminal and is in judicial custody for over 6 months. Bail allowed. PLJ 1996 Cr.C (Lah) 1636 Zafar Ali.

Simple gun-shot injury on ankle, held offence would fall u/S. 337-F (ii) PPC, punishable with 3 years R.I. and daman. As the offence did not attract the prohibitory clause of sec. 497 Cr.P.C bail allowed in the sum of Rs. 50,000 with 2 sureties. 1994 SCMR 2051, Muhammad Afsar.

Two shots fired hitting on right shin and thigh. Injuries simple. Held, offence u/S. 337-F (II). Injuries being on non-vital parts of the body, bail allowed. PLJ 1996 Cr.C. (Lah) 312, Muhammad Akram.

Sentence of life imprisonment suspended by High Court where no injury was attributed to the petitioner. Supreme Court declined to cancel the bail. 1994 SCMR 1727, Mst. Latif Bibi v. Abdul Ghafoor etc.

Location of injury is important to determine the intention of the accused. When the injury was on non-vital part of the body, ankle in this case and the accused did not repeat the fire-arm shot, held, reasonable grounds exist that the accused was not guilty of a non-bailable offence. Bail allowed for offence u/S. 324 PPC. PLJ 1996 Cr.C (Lah) 1837, Muhammad Khursheed.

Grievous injury caused by teeth does not fall u/S. 326 but Sec. 325, PPC. Bail allowed. NLR 1984 Cr. 676 Allah Bachayo.

One blow only on head of deceased struck by the accused. All witnesses supporting the version. It is for the trial Court to decide what offence if any committed. Case committed. Supreme Court refused bail. (SC) 1971 SCMR 351 Jan Muhammad.

Four accused injured, a case of further inquiry. Bail not cancelled. 1979 SCMR 526 Ahmad v. Sheru etc.

Injuries on accused not explained in FIR or statements under section 161, Cr.P.C Facts were being suppressed which could be favourable to the accused. Bail allowed to accused under sections 302, 307, 326, 148, 149 PPC. NLR 1983 Cr. 48 Shahzad Sultan. PLJ 1983 Cr. C. (Lah) 7.

Both parties sustaining injuries, who was the aggressor yet to be determined. Two FIRs registered. Bail allowed. PLJ 1989 Cr. C. (Kar.) 177. Shahid-ur-Rehman etc.

Injuries on accused. Free fight. Complainant receiving one grievous injury at back of hand whereas accused receiving 5 simple injuries. Held, a fit case for enlarging accused on bail. 1970 P.Cr. LJ 1093 Ghulam Hussain.

Both parties injured. On complainant side 8 persons injured and one dead. Accused party had 9 injured persons. Fatal injury not specifically attributed to petitioner in FIR. Yet to be established who were the aggressors. Held, case of further inquiry bail allowed, for offence u/Ss. 302, 307 326 148.149, PPC, PLJ 1989 Cr. C. (LH) 53. Nazir Ahmed.

Injuries on accused old age and sickness and only two simple injuries attributed to him to have been caused to P.Ws. Bail allowed. 1979 SCMR 24 Ghulam Nabi.

Seven injuries on the accused including two firearm injuries which were not mentioned in the FIR. SHO had failed to register petitioner's case. Interim bail allowed to the petitioner was confirmed. 1996 SCMR 530, Haji Muhammad Abbas.

JAPHA (holding the victim)

Holding the deceased by one arm while the co-accused gave one knife blow, held, it was yet to be seen whether it was necessary for two persons to hold the deceased when accused inflicted a solitary knife blow. Bail allowed. 1976 P.Cr. LJ 758 Shahid Iqbal.

Japha while co-accused gave a chhuri blow. Sudden flare-up. Bail allowed to accused who was attributed Japha. PLJ 1985 Cr. C. (Kar.) 242 Ali Asghar etc. PLD 1985 Kar. 609

Catching hold of deceased while co-accused inflicted dagger blows; held, it was yet to be determined whether the accused had facilitated the commission of the offence to attract sec. 34 PPC which made it a case of further inquiry. Bail allowed. 1994 SCMR 393, Shahid.

Accused catching hold of the deceased before he was given injuries by the co-accused. Matter being of further inquiry, the Supreme Court converted the petition into appeal and accused was granted bail. 1995 SCMR 310, Mehmmood Akhtar etc v. Haji Nazir Ahmed etc.

Japha, a case of further inquiry. Respondent held the deceased in Japha while co-accused hit him on the head. Bail not cancelled. 1978 SCMR 357. Barkat Hussain v. Ghulam Hussain.

Japha only attributed to the petitioner. Two co-accused allowed bail whose case not distinguishable from that of the petitioner. Bail allowed. 1981 SCMR 850. Muhammad Anwar.

" attributed to the accused respondent. Bail allowed by High Court not cancelled. 1981 SCMR 894. Muhammad Nasir v. Muhammad Arshad.

Catching deceased to facilitate fatal blow by co-accused. Section 34 prima facie applicable. Bail cancelled. 1979 SCMR 65 Mst. Barkat Bibi v. Gulzar. 1979 SCMR 114 Hakim Ali.

Japha (catching hold) of deceased. While other accused hit the deceased on head. Respondent charged with facilitating murder. High Court held, rightly pointed out, case needing further inquiry and granted bail (SC) 1978 SCMR 357 Basharat Hussain v. Ghulam Hussain etc. PLJ 1978 SC 405.

Japha and bail. Additional Sessions Judge granted bail to the accused who had clasped the deceased on the ground that it being a case of further inquiry whether the accused holding the deceased shared the common intention. High Court cancelled the bail, Supreme Court upheld the High Court Order. (SC) NLR 1981 Cr. 213. Muhammad Ishaq v. Sajawal etc.

Catching by the legs. Petitioner alleged to have held deceased while asleep when the co-accused inflicted a kassi blow on him. Held, no necessity of catching hold of a person who is sleeping. Bail allowed. 1979 P.Cr.LJ 190. Allah Ditta.

Japha by petitioner, life sentence suspended because the part attributed to petitioner was only that of holding the deceased. (DB) NLR 1987 Cr. 610. Mazahar Saeed.

LALKARA (Exhortation Loudly)

Lalkara only and no accused. Bail allowed. 1973 P.Cr.LJ 217. (SC) Farman Ali Shah etc. Cr. A. No 106 of 1970 Lall etc. (Supreme Court unreported) rel. 1978 SCMR 448 Wazir Muhammad 1980 SCMR 743 Sher Khan.

Only Lalkara attributed to the petitioner in case u/S. 302, 324, 337, 148/149 PPC. Petition converted into appeal and bail allowed. 1993. SCMR 1992, Amanat Ali.

Mere Lalkara in murder case attributed to petitioner, bail allowed PLJ 1989 Cr.C (Lah) 185. Muhammad Latif.

Lalkara, with infirmity, bail allowed after commitment. (SC) PLD 1966 SC 658 Abdul Aziz v. Bashir Ahmed.

Lakara and old age. Accused an old man. No hope of the case being tried within a year. Petitioner attributed lalkara only. Bail allowed 1978 SCMR 77. Khan Badshah PLJ 1978 SC 432. PLD 1978 Lah. 670. Ghulam Haider.

Lalkara. Accused armed with chhuri and not using it, only raised lalkara. Bail not cancelled. 1971 P.Cr. LJ 106 Muhammad Yaqub.

Accused kept on firing and raising lalkaras at the time of occurrence, although the accused were armed with a pistol and a rifle yet they did not cause any injury to the complainant party. Allegation of lalkara against the accused was proverbial. Accused admitted to bail. 1996 SCMR 1654. Muhammad Sadiq etc.

Only lalkara attributed to the accused, petition converted into appeal and appellant granted bail for offences u/Ss. 302, 324, 148, 149 PPC. 1995 SCMR 343, Rafiq Khan.

Only lalkara attributed to the empty-handed petitioner. Bail allowed. for offence u/S. 302/34 PPC. PLJ 1997 Cr.C (Lah) 187, Muhammad Hayat.

"Role ascribed to the accused merely one of raising lalkaras and inciting co-accused to finish complainant party. True import of Lalkaras ascertainable only after recording of evidence. Accused admitted to bail. 1971 P Cr. LJ 778 Muhammad Ashiq. 1973 P Cr. LJ 217 Farman Ali. PLD 1978 Lah. 670. Ghulam Haider.

Only lalkara attributed to accused. Bail allowed for offences u/Ss. 302, 324, 337-A, 337-D, 337-F, 148/149 PPC. 1993 SCMR 1992, Amanat Ali.

Lalkara & bail. Accused in murder at night time would be more disposed to conceal his identity than making lalkara, held, correct, and matter requires further inquiry. Bail allowed. 1977 P.Cr.LJ 1048. Nisar Ahmed.

Lalkara and cross-case. One accused a blind man, attributed lalkara only. Other accused a boy a little over 16 years involved in murder case. Counter-case under section 325, P.P.C pending. Case having two versions whether accused guilty of an offence punishable with death or transportation yet to be decided. Bail Allowed. 1973 P Cr. LJ 391 Hafiz Niaz Muhammad.

Lalkara and no other overt act attributed to the petitioners. Bail allowed for offences under sections 307, 380, P.P.C. 1975 P.Cr.LJ 1075 Salim Butt etc. 1975 P.Cr.LJ 1173 Shah Nawaz.

Lalkara amounts to abetment, bail not allowed. PLD 1967 SC 340, Chiragh Din.

Lalkara, bail cancelled in a triple murder case wherein 7 sons of the petitioner had fired at the deceased on the lalkara of the respondent who was empty-handed. PLJ 1993 Cr. C. (Lah) 463, Karamat Ali v. Haji Muhammad Hussain etc.

Proverbial lalkara, bail refused, for offence u/S. 302/34, PPC where motive attributed to the accused is to kill. Both accused way laid the deceased petitioner fully aware that the co-accused had a pistol in his hand, pistol fired after raising the lalkara by the petitioner. Held, petitioner liable u/S. 34, PPC. PLJ 1988 Cr. C. (Lah) 11 Haq Nawaz.

LAST-SEEN Evidence only

Co-accused last seen with deceased near place of occurrence and nothing recovered from accused. Bail allowed. NLR 1984 Cr. 414. Rafiq Ahmed etc.

Deceased last seen with petitioner and doubtful extra-judicial confession only evidence against the petitioner. Bail allowed. 1974 P.Cr.LJ 486 Ghulam Muhammad.

MEDICAL EVIDENCE INCONSISTENT WITH PROSECUTION

Medical evidence not supporting specific part attributed to the petitioner. Bail allowed. 1977 P Cr. LJ 159 Mohsin.

Medical evidence conflicting with ocular evidence is sufficient ground for grant of bail. PLJ 1980 Cr. C. (Lah) 86 Abdul Qadir.

Medical evidence contradicting prosecution version. Accused not named in the FIR Police placed the name in column No. 2 of the challan. Bail allowed. 1975 P Cr. LJ 549 Rauf etc.

Medical evidence contrary to eye-witness account about time of death of deceased, held, case of further inquiry. Bail allowed. PLJ 1981 Cr. C (Sukkur) 62 Hiddu.

Medical report inconsistent with eye-witness account may be relevant factor at trial such matter cannot be deeply gone into at bail stage. 19082 SCMR 208. Sanatta.

Medical evidence in direct conflict with allegation in FIR. Other accused caused injuries in a scuffle and the petitioner was not a habitual, hardened, desperate or dangerous criminal. Bail allowed. 1998 SCMR 1528 Haji Maa Din PLJ 1999 SC 49

Conflict between ocular and medical evidence disclosed on tentative assessment of evidence. Petitioner for leave to appeal converted into appeal and bail allowed, in case u/Ss. 302, 324, 147, 148/149 PPC. 1997 SCMR 32, Syed Abdul Baqi Shah.

Post-mortem report contrary to F.I.R. story in case under section 302/148/149, PPC. Bail granted by the Sessions Court not cancelled. NLR 1983 Cr. 653. Zaka Ullah v. Muhammad Khan etc.

NO OVERT ACT

No overt act attributed to the petitioners in a murder case. Bail allowed. PLJ 1975 Cr. C. (Lah.) 431 lnayat etc.

No overt act ascribed to petitioners bail allowed in case under section 302, PPC. PLJ 1975 Cr. C. (Lah.) 10 Talib Hussain.

No overt act attributed to the petitioner though his name mentioned in the FIR for offence under section 302/34, P.P.C., bail allowed. PLJ 1974 Cr. C. (Lah.) 418 Muhammad Musa etc.

No overt act attributed to the petitioners except their presence at the spot. Bail allowed. 1977 P.Cr. LJ 463 lnayat etc.

No overt act attributed to the accused although alleged to carry a hatchet. No motive. Bail allowed 1976 P Cr.LJ 1050 Niamat.

Petitioner armed with hatchet but no overt act or motive attributed to him. Cross-case under sections 307, 148/149, P.P.C also registered. Interim bail confirmed PLJ 1976 Lah. 179 Niamat. PLJ 1976 Lah. 180. Muhammad Sharif.

NOT NAMED IN FIR

Not named in FIR. Petitioner not named in the FIR as an assailant, injured person refusing to make statement before the sub-inspector. Held case fit for the grant of Bail. (SC) 1975 SCMR 483 Muhammad Rafiq.

Involvement in a number of robbery cases was not sufficient to deprive the petitioner of liberty. Record did not show why identification test of the accused by alleged eye-witnesses was not held when the accused was not named in the FIR. Mere recovery of cash in absence of any other evidence was not enough for his involvement in the case. Bail allowed. 1997 SCMR 412, Muhammad Rafiq.

Petitioner's name not mentioned in the FIR, Nor any identification parade held. Petitioner in jail on account of confession of- co-accused. Bail allowed in case u/Ss. 203/353 PPC. PLJ 1996 Cr.C (Lah) 417, Bashir Ahmed Butt.

Petitioner not named in FIR lodged by real brother of the deceased. Dying declaration naming the deceased, not recorded in presence of the doctor nor certificate of fitness to make the statement obtained. Petitioner only alleged to have held the deceased. Bail allowed. 1977 P Cr. LJ 600. Liaquat etc.

Only recovery of articles of common pattern against him. Bail allowed under section 302/392, P.P.C PLJ 1975 Cr. C. (Lah) 261 Nayat etc. 1975 P Cr. LJ 1271.

Not named in FIR. Co-accused naming the petitioner as having fired the fatal shot, in extra-judicial confession. Held case fell under section 497 (2) Cr.P.C. Bail allowed. 1975 P.Cr.LJ 1017 Muhammad Ashraf.

Name of the petitioner appearing in the investigation after 17 days: Name not in FIR Held, a fit case for bail even after commitment, (SC) 1976 SCMR 182 Waris Muhammad v. Haji Ahmad Yar.

OBSERVATIONS IN BAIL CASES

Observations by superior Courts in bail matters are intended only for the limited purpose of bail and do not affect merits of the case. (SC) 1975 SCMR 247 Abdul Ghaffar.

Observations in bail case disapproved. Accused and his companions acting in prosecution of a common object and each vicariously responsible for offence committed by other co-accused. High Court granting bail observing : "It is normal habit of complainants in the districts of the Punjab to implicate all able bodied family members of the accused so that none in the family is left to look after the case." Held generality of statement made by High Court was open to question and calculated to prejudice prosecution case. Trial Court directed to disregard the observations of the High Court. (SC) PLS 1971 SC 316 Muhammad Sharif v. Muhammad Ashraf.

OPINION OF POLICE

Police report different from complainant's version. Police on investigation holding accused not to be guilty but complainant party consistently maintaining that police report was not correct and real culprits were placed in column No. 2 of challan. Held, High Court erred in refusing bail to such accused for offence under section 302, P.P.C (SC) PLD 1972 SC 81 Manzoor etc.

Opinion of investigating police officer holding accused innocent yet challaned him. Held, accused could take advantage of such opinion. Accused allowed bail for offence u/S.. 302, P.P.C 1974 P Cr. LJ 450 Muhammad Hayat.

Police opinion though not binding on Court yet being adverse to the prosecution creates doubt about veracity of prosecution case. Bail allowed for offence u/S. 302/34 PPC. PLJ 1997 Cr.C. (Lah.) 259, Zulfiqar Ali. Also PLJ 1997 Cr.C. (Lah.) 333, Muhammad Rafiq.

Name not in column 2 of challan; does not make difference when otherwise the report of the investigating officer is favourable to the accused. Bail allowed. NLR 1982 Cr. 669 Nisar Ali.

Police reporting accused innocent: held, as the accused had been named in the FIR and also in the dying declaration by the deceased he was not entitled to bail. NLR 1984 Cr. 591 Mukhtar Ahmad.

Opinion of investigating officer about innocence of the accused when based on the statement of village respectables who had neither seen the occurrence nor were witnesses of alibi. Held, such opinion had no weight in bail matters PLJ 1983 Cr.C. (Lah.) 58. Barkha etc.

Accused not guilty according to Investigating Officer. Further investigation in progress. Held, case fell under section 497 (2), Cr.P.C. Bail allowed 1971 P.Cr.LJ 1051 Allah Bakhsh.

Name in column No. 2 of Police Report, held such person is not accused. The question of whether order granting bail by High Court was valid or not would arise only when he is considered as an accused by the prosecution. Application for cancellation of bail dismissed. 1992 SCMR 1857, Muhammad Ilyas v. Ijaz Ahmed Butt = PLJ 1992 SC 398.

Name in column No. 2 of challan in murder case. Bail allowed. 1975 P.Cr. LJ 451 Slabat etc. NLR 1982 Cr. 164 Umar Hayat.

Police declaring accused innocent in two different investigations in case u/Ss. 302, 324, 452, 148/149, PPC. Bail allowed. (DB) PLD 1999 Lah. 74 Abdul Mannan.

Findings of ASP that the petitioner was not present at the spot at the start of the occurrence and did not cause any injury to any one. SHO also had agreed with the finding. Injuries on one accused petitioner suppressed by complaint in FIR. Bail allowed in case u/Ss. 302, 324, 452, 148/149, PPC PLJ 1999 Cr.C. (Lah.) 200 Kalu etc.

The accused whose name is in column No. 2 of challan remains an accused for purpose of trial until he is got discharged by the police from the Court. (DB) PLD 1993 Lah. 105, Riasat Ali.

Name in column No. 2. Accused found innocent by four investigating agencies. Only 3 out of 16 P.Ws. examined. Bail not cancelled. (SC) 1975 SCMR 230 Karam Din v. Mohammad Ashraf etc.

Name in column No. 2 of police report under section 173, Cr.P.C. petitioner's name in column No. 2 of challan by police. Case falls under section 497 (2), Cr.P.C. Bail allowed. 1969 P.Cr.LJ 111 Ibrahim. 1971 P.Cr. LJ 590 Muhammad Sher.

Accused placed in column No. 2 of challan and not summoned by trial judge as accused and bail allowed by trial Court. High Court did not cancel the bail and Supreme Court refused leave to appeal. 1987 SCMR 1721. Mukhtar v. Mohsin Ali.

Even though name of petitioner in column No. 2 yet the Court can disagree with the police and refuse bail. Bail cancelled. 1988 SCMR 1743. Haji lanyat-ul-Haq v. Said Muhammad Khan.

Opinion of DSP that one appellant's participation was doubtful held, not relevant and not binding on Court. (DB) PLJ 1988 Cr. C. (Lah.) 307 Abdul Sattar.

Petitioner found innocent by police. No motive attributed to the petitioners. Reasonable grounds to believe that the petitioners have not committed non-bailable offence, there being ground for further inquiry. Bail allowed, for offences u/Ss. 302, 380, 148/149 PPC. PLJ 1998 Cr.C. (Lah.) 3, Haji Hussain, etc.

3 investigations showing the accused as innocent, 4th investigation by a senior police officer of the rank of ASP found the accused directly involved. Supreme Court declined bail as role of the accused in the FIR supported by eye-witnesses was that he directly fired at the deceased. Bail refused irrespective of the fact that the name of the accused was in column No. 2 of challan. 1998 SCMR 1, Muhammad Din.

Two investigating officers declared accused innocent. Witnesses during investigation gave two different versions. Bail allowed for offences u/Ss. 302/34 PPC. (DB) PLJ 1998 Cr.C. (Kar) 463, Qazi-ur-Rehman.

Police declared accused as innocent but a single judge of the High Court on the statement of witnesses who were not eye-witnesses substituted his own opinion that the petitioners were guilty and cancelled their bail. Supreme Court allowed bail. 1988 SCMR 1452 Muhammad Mumtaz.

3 Police Officers including S.P. declared petitioner innocent. FIR delayed by 17 days. Bail allowed. PLJ 1997 Cr.C. (Lah) 144, Saifur Rehman Khan.

Accused found innocent by three successive I.O.S and was not alleged to have caused any injury to the deceased, bail allowed. 1991 SCMR 1630 Nek Muhammad.

Two investigating officers found the accused innocent on the basis of oral testimony of defence witnesses. Specific role was assigned to the accused in the FIR and supported by two injured eye-witnesses, held, High Court was justified in refusing bail to the accused. While assessing whether the opinion of the I.O should be accepted or not all the attending facts and circumstances of the case should be considered. PLD 1994 S.C, 172, Liaqat Ali.

Two police officers declared petitioner innocent in case u/S. 302/34 PPC. This made the case against the petitioner one of further inquiry. Bail allowed. PLJ 1996 S.C 795, Muhammad Hussain.

Accused found innocent in two investigations granted bail before arrest in a rape case as it was held to be case of further inquiry. 1992 SCMR 600, Naqi Hussain Shah.

Two Deputy Superintendents of Police declaring the accused innocent. Accused's participation in the offence appeared to be doubtful. Bail allowed. 1993 SCMR 2288, Dr. Muhammad Aslam.

Petitioner found innocent by three police officers, bail allowed for offences u/Ss. 302, 307/34, 109, PPC. PLJ 1988 Cr.C. (Lah.) 574. Khalid Sarwar.

Opinion of Police Officer not per se legal evidence but can be considered in granting or refusing bail. Police finding the accused innocent. Accused allowed to remain on bail. 1969 P.Cr. LJ 1111 Wali Muhammad v. Muhammad Akbar Khan. Contra. (SC) PLJ 1974 SC 40. Iqbal-ur-Rehman.

IPSE DIXIT (dogmatic statement resting on bare authority) of police regarding the guilt of innocence of an accused not to be depended upon even in the matter of deciding the question of bail. The onus is on the prosecution to disclose those reasonable grounds, and the Court has to examine the data available in the case to find out whether reasonable grounds exist to connect the accused with the crime. The Court's belief on the point has to rest on the accusations made in the report of the police, the nature and the credentials of evidence, which the prosecution proposes to lead in the case, and all the other relevant circumstances surrounding the occurrence.

The ultimate conviction and incarceration of 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. "(SC) PLD 1972 SC 81 Manzoor etc.

Conflicting police version. Two Police officers pronouncing accused innocent but ultimately one of police officers deciding to send him up for trial. Police record showing conflicting versions of the incident. Held case covered by section 497 (2), Cr.P.C. Bail allowed. 1968 P.Cr.L.J. 1905 Rehmat Khan.

Conflicting findings as to the guilt and innocence of the accused by different police officers, held, conflict should be resolved in favour of the accused. Bail allowed for the offences u/Ss 302/34, 109 PPC. 1994 P.Cr.LJ 1020, Abdul Rehman.

Police declaring innocent. Mere fact of C.I.A. Staff in a subsequent investigation declaring accused innocent is no ground for allowing bail in case of broad daylight murder and implicated by injured P. Ws. (SC) 1977 SCMR 27 Gul Ahmad v. Masam Khan etc.

Police declaring accused innocent. Opinion of police not binding on a Court, yet Court taking notice and granting bail. 1976 P.Cr.LJ 511 Mansha etc.

Opinion of police officer about innocence of accused is not binding on the Court and such opinion cannot be made only basis for grant of bail. The Court may differ with the opinion of the I.O. Bail cancelled. PLJ 1996 Cr.C (Lah) 1505, Nazar Muhammad.

Petitioner found innocent by police investigating officer whose findings were confirmed by Supervising Police Officer. Petitioners named in F.I.R and implicated by the complainant in his statement before the Magistrate, Held, findings, not binding on Court. Bail refused. 1977 P.Cr.L.J. 114 Aitbar Khan etc. PLJ 1978 Cr.C. (Lah.) 430 Kamal Din.

Conflicting police opinions. Two Police officers supporting prosecution case while two police officers, including one submitting final challan declaring petitioner K and A to be innocent, held, case of further inquiry bail allowed 1978 SCMR 360 Khushi Muhammad etc.

Investigating officer reporting accused as innocent. Accused neither present at the spot nor any overt act attributed to him. Bail before arrest allowed. 1979 SCMR 56 Malik Muhammad Akram.

Further inquiry and police finding conflicting. Two police officers supporting prosecution version while other two finding false implication of two accused. Held, a case of further inquiry. Bail allowed. (SC) 1978 SCMR 360 Khushi Muhammad.

Police found accused innocent. Accused found innocent by C.I.A and local police. However, accused challan because 4 witnesses made statements under section 164, Cr.P.C Bail allowed. 1975 Cr. LJ 1273 Hassan Muhammad.

Police holding the accused innocent yet, challaning them. Bail allowed in case under section 302/148, P.P.C. PLJ 1975 Cr.C. (Lah.) 13 Hassan Muhammad etc.; PLJ 1984 Cr.C. (Lah.) 360 Allah Rakha.

Investigating Officer finding accused innocent. Such finding though not legal evidence yet makes the prosecution case needing further inquiry about its veracity. Bail allowed. (SC) 1970 SCMR 299 Rehmat Ullah 1974 P.Cr. LJ 598.

Special investigation finding accused innocent. His name transferred from column No. 3 to 2. Bail allowed in murder case. NLR 1981 Cr. 503 Muhammad Aslam.

Accused declared innocent by A.S.P. and 65 years of age. Interim bail allowed. 1996 SCMR 526, Muhammad Aslam.

Police opinion about innocence of the accused when based on sound material can be considered for purpose of bail. NLR 1984 Cr. 319 Shabbir Ahmad etc.

Relevancy of opinion of investigating officer as to the innocence or guilt of the accused depends on the soundness of the material on which it is based. Opinion based on the statements of respectable persons. Bail granted by High Court not interfered with. 1984 SCMR 429. Muhammad Afzal v. Nazir Ahmad. 1984 SCMR 521. NLR 1986 Cr. 969 Bahadar etc.

Petitioner found innocent by police but his name not placed in column No. 2 of report. Although fatal shot not attributed to the petitioner bail not allowed, as he was a member of unlawful assembly. 1981 SCMR 849. Baboo.

Name in column No. 2 of challan form: Sufficient weight is to be attached to the result of the investigating officer. Bail not cancelled. 1982 SCMR 440. Ghulam Rasul.

One investigating Officer finding case of self-defence but subsequent I.O. did not agree, held, a case of further inquiry. Bail allowed in murder case. NLR 1983 Cr. 54. Muhammad Ashraf.

Alibi; non-conclusive findings by I.O.- Plea further being investigated by D.S.P Bail allowed in the meanwhile u/Ss. 302, 307, 148, 149, PPC. NLR 1983 Cr. 229. Arif Hussain Shah.

Benefit of doubt in bail. Benefit of doubt arising from police investigation conducted by A.S.P. Who found that 3 accused where not present at the spot must go to the accused at bail stage. Bail allowed u/S. 302, PPC. (SC) NLR 1984 Cr. 68 Amir Ali etc.

Accused declared innocent by I.O. on sufficient material that he was not presnet at the spot. Bail allowed u/S. 302, PPC. 1984 SCMR 521. Amir Ali.-Innocence of accused: opinion of police officer not considered when prosecutrix stated that she had been detained for 2 nights and raped by the petitioner and that the police officer wanted the prosecutrix to withdraw the case. Bail refused. PLJ 1984 Cr.C. (Lah) 531. Nazir Ahmad. NLR 1984 Cr. 672.

Opinion of investigating officer : Mere opinion of investigating officer, as a rule is not to be used successfully for grant of bail. PLJ 1983 Cr.C. (Lah) 259. Muhammad Tahir Mahmood.

Bail allowed by police cancelled by High Court u/S. 497(5) Cr.P.C. as pre-arrest bail of petitioner had been dismissed by the Sessions Judge and he had been taken into custody. 1994 P.Cr. LJ 1166, Muhammad Ali. v. Shahbaz Ali etc.

PROHIBITION CLAUSE

(Offences punishable with 10 years or over)

Grant of bail is a rule in cases punishable by less than 10 years imprisonment and refusal to grant bail is an exception. Bail in such cases can be declined in extra-ordinary and exceptional cases; for example :-

(a) Where there is likelihood of abscondence of the accused ;

(b) Where there is danger of offence being repeated;

(d) Where the accused is a previous convict.

PLD 1995 S.C 34, Tariq Bashir etc.

Bail refused in offence not falling in prohibitory clause of sec. 497 Cr.P.C., held, the Court may decline to admit an accused to bail if there existed a recognised exceptional circumstance. PLD S.C. 545, Imtiaz Ahmed.

Offence even if not falling in prohibition caluse of Sec. 497 Cr.P.C. does not mean that bail should be granted as a matter of course. It is obligatory for the Court to consider all the circumstances before deciding to releae the accused on bail. Bail refused. PLJ 1997 SC 1917, Muhammad Afza.

Bail for offence u/S. 324 PPC allowed when the injury is caused; accused is liable to punishment provided for the actual hurt caused. In the instant case the hurt fell u/S. 337-F(1) PPC which is not punishable with 10 years imprisonment or over. PLJ 1995 Cr.C (Lah) 268, Qaisar Yar Haider.

When accused not likely to be awarded maximum sentence for offence u/S. 304 (II) the prohibitory clause of Sec, 497, Cr.P.C. does not apply to disentitle the accused for bail NLR 1989 Cr. 287 Muhammad Azam.

Offence not punishable with 10 years imprisonment or more. Bail should not be refused because the offence is non-bailable. In the absence of strong reasons to refuse bail the Courts below did not exercise their discretion properly when in an offence under section 325, P.P.C.; the victim had suffered large number of injuries. Bail allowed for offence under section 325, P.P.C (SC) 1977 SCMR 449. Mansha Khan etc.

Offence punishable with less than 10 years in case u/S. 337-F(ii) PPC bail allowed to the petitioner. 1996 SCMR 979, Mir Ahmed Gul etc.

Prohibition clause u/S. 497(1), Cr.P.C. not attracted when offence although punishable for ten years or more but alternative punishment of fine is provided it is left to the discretion of the Court to award any punishment, that is, either R.I or fine; it will be difficult to hold that such an offence is exclusively punishable with any of the punishment provided. Bail allowed for offence u/S. 17(2)(b) and 18 (2) of Emigration Ordinance, 1979 punishable with 14 years R.I. or fine. NLR 1983 Cr. 723. (Kar.) Muhammad Akhtar. Contra NLR 1988 Cr. 57 Hafeez Ahmed Khan.

Where alternative punishment is less than 10 years offence shall not fall within prohibitory clause. The alternate punishment being 7 years and the petitioner had suffered over 5 months imprisonment, bail allowed. PLJ 1998 Cr.C. (Lah.) 141, Muhammad Ashraf, PLJ 1998 Cr.C. (Lah.) 136, Ghulam Hussain.

Bail for offences not punishable with 10 years or over term of imprisonment would not ipso facto entitle the accused to grant of bail. (D.B) PLD 1995 Kar 347, Kanwar Khalid Younis etc.

Offence u/S. 152(1)(14) read with sec. 32 Customs Act, 1969. Bail allowed as the offence do not fall within the prohibitory clause of sec. 497 Cr.P.C. PLJ 1995 S.C. 357. Sikandar A. Krim.

Bail refused in case not falling in prohibitory clause of Sec. 497 (1) Cr.P.C. Court has discretion to decline relief keeping in view circumstance of each case. PLJ 1994 Cr.C. (Pesh.) 29, Bahadar.

Case not falling in prohbition clause bail not granted as the accused was involved in 5 Criminal cases and the accused had criminal history. NLR 1989 Cr. 144 Muhammad Jamil.

Bail for offence u/S. 156(1)(8)(89) Customs Act, 1969, allowed when smuggled gold recovered from the vehicle of the applicants, as the offence of the applicants (Driver and the owner) of the vehicle did not fall within prohibitory clause of section 497 Cr.P.C. PLJ 1993 Cr.C (Kar.) 194, Aftab Alam etc.

Offence not punishable with 10 years or more bail not allowed. The petitioner was a brain behind the fraud causing loss to the state exchequer for rupees 2.76 crore. PLD 1978 Lah 78. Rana Muhammad Amin.

Attempt to commit Qatle Amad punishable with 10 years and fine in addition to the punishment for the injury caused, bail refused. 1996 SCMR 1270, Arshad; PLJ 1996 S.C. 1475.

Offence did not attract prohibitory clause of sec. 497 (1) Cr.P.C., held, accused could not be detained in judicial lock-up without trial for indefinite period. Bail allowed. 1995 SCMR 144, Sher Ahmed etc.

Power of attorney considered as valuable security, its forgery attracts provisions of Sec. 467, PPC which falls under prohibitory clause of Sec. 497, Cr.P.C. NLR 1989 Cr. 129 Javaid Akhtar.

Objectionable goods seized by customs. Bail allowed as offence not punishable with death or life imprisonment. (SC) 1978 SCMR 430. Torab Shah.

Cases not punishable with "death or transportation" for life. The general grounds of seriousness of the menace of sumggling etc. should not be allowed to prevail against general rule that a person charged with offence not involving a sentence of death or transportation for life should unless there are strong grounds for belief in his guilt be allowed bail. (SC) 1968 P.Cr. LJ 192 Wali Muhammad 1969 SCMR 233 - 1971 P.Cr. LJ 136.

Bail u/S. 497(1) Cr.P.C. allowed to the petitioner when the offence was punishable by life imprisonment as the petitioner was not a previous convict or hardened criminal. Mere fact that the accused was transporting heroin during day time on a donkey cart was not sufficient to hold him as a hardened, desperate or dangerous criminal. Bail allowed. 1997 SCMR 361. Jaggat Ram.

Life Imprisonment case, sentence suspended on the plea that the appellant had acted in the defence of his brother whom the deceased was belabouring with a hockey stick. PLD 1995 Lah. 142, Thair Mahmood.

Confessional statement of the co-accused which was not admissible was the only thing against the accused. Bail allowed, or offence u/Ss. 302, 365/34 PPC. PLD 1996 Kar 534, Muhammad Hanif.

Shajjah-i-Mudihah, that is, exposer of a bone without causing any fracture, the offence not falling in prohibitory clause bail allowed. 1993 SCMR 1994, Allah Rakha.

Offences not in exception clause in section 497, Cr.P.C. Accused charged with offences not falling within exception clause in section 497, Cr.P.C., bail could be refused to him only for good and sufficient and not whimiscal ground. (SC) 1968 SCMR 251. Siraj-ul-Haq. (SC) PLJ 1978 SC 206 Mansha Khan etc.

When offence is punishable with imprisonment or fine, only the accused shall be entitled to be released on bail as of right, because if at the trial he is sentenced to fine only, the period spent as under trial prisoner by the accused shall amount to double jeopardy. PLD 1993 Pesh. 104, Sher Ahmed.

Punishable with death or transportation for life, meaning of. While considering whether the offence fell under the prohibition contained in sub-section (1) of section 497, Cr.P.C in bail case, the Courts are not to keep in view only the maximum sentence provided by law i.e., the death or transportation for life, but if at the bail stage it appears, that the prosecution case taken to its extreme would not entail the maximum punishment, it would go out of the prohibition. The Courts would then have the jurisdiction to grant or refuse bail. 1973 P.Cr. LJ 205 Amir Contra NLR 1988 Cr. 57 Hafeez Ahmed Khan.

Offence punishable with death or transportation for life. Court nonetheless has discretion to allow bail in cases punishable with death or transportation for life. Grant or refusal of bail depends on circumstance of each case. (DB) PLD 1966 Lah. 144 Bashir Ahmad.

Case u/S. 392 PPC being punishable by life imprisonment, when tried by a Magistrate does not mean that the case has gone out of prohibitory clause of section 497 Cr.P.C. for purpose of bail. When no reasonable grounds exited to believe that the petitioner had not committed a non-bailable offence, bail was refused. PLJ 1995 Cr.C (Kar) 89, Muhammad Arshad.

Reasonable grounds whether exist to believe the accused to be guilty of offence punishable with death or transportation for life to be decided at initial stage on allegations made in the F.I.R statement of eye-witnesses and other incriminating material in the hands of prosecution. 1971 P Cr. LJ 778 Muhammad Ashiq. (SC) PLJ 1978 SC 327 Khalid Javed Gilan. PLD 1978 SC 256.

Bail (offence under section 307, P.P.C.) Supreme Court granted leave to appeal to consider whether High Court was acting with jurisdiction in granting bail to an accused for an offence punishable with transportation for life without his case falling under any exceptions. (SC) 1968 SCMR 30 Fazal Din v. Muhammad Sharif.

Bail for offences u/Ss. 342 & 337 PPC allowed as offences did not fall in prohibitory clause of Sec. 497 (1) Cr.P.C. 1998 SCMR 500, Jan Muhammad v. Haji Noor Jamal, etc.

Where maximum punishment for the offence is not likely to be awarded, though the offence may be punishable with maximum sentence of 10 years or more, bail may not be refused. Bail allowed in a case falling under section 304 (1), when there was grave and sudden provocation. PLJ 1975 Cr.C. (Lah.) 362 Muhammad Altaf v. Nazir Ahmed.

Grievous injury; maximum sentence not likely to be awarded as case being tried by Section 30 Magistrate. Bail allowed. NLR 1984 Cr. 574. Shahadat Ali.

When offence is not punishable with 10 years or more, the Supreme Court allowed bail under the Customs Act. The petitioners had been in detention for 70 days. Petition for leave to appeal converted into appeal. (SC) 1976 SCMR 145 Munir Muhammad etc.

Pseudo doctor of medicine practising for 30 years hauled up u/Ss. 419, 420, 468 and 471 PPC although the offence did not fall in the prohibitory clause of sec. 497 Cr.P.C bail not allowed for his foul conduct, playing with the health and lives of the people. PLJ 1993 Cr.C. (Lah) 202, Dr. Ghulam Sarwar Bhatti.

Case before a Court not empowered to punish for 10 years or more is no ground for grant of bail. However, bail can be competently granted if case attracting prohibitory clause is not made out. (FB) PLJ 1985 Cr. C. (Kar.) 508. State v. Rais Pehlwan.

REMAND UNLAWFUL & ADJOURNMENTS

Repeated adjournments/remands, under section 344, Cr.P.C. Adjournment of proceedings of remand not to be granted by a magistrate repeatedly mechanically and without good cause. Adjourning case for months on the ground that the case was under scrutiny by the prosecution branch cannot be justified. Such repeated adjournment adversely affects the accused in custody and entitles him to bail. PLD. 1977 BJ 20 Ghazi etc.

No proper adjournment order under section 344, Cr.P.C. Detention held, illegal, as there is no provision for sine die adjournment. The order of adjournment and committal to custody must state reasons for adjournment. Case law cited. Bail allowed. C. Misc. No 1430 B. 77. Muhammad Yousaf Cr. Misc. No. 3823 C. 77. Munir etc. Cr. Misc. No. 4078 B. 77 Munir. Lahore High Court, Not reported.

No proper adjournment u/S. 344, Cr.P.C. Detention, held, illegal. Bail allowed. PLD 1978 Lah. 314, Saif-ur-Rehman. OVERRULED by PLD SC 38. Shadi Khan v. Muhammad Saleem. Also see PLJ 1978 Cr.C. (Lah.) 233. Muhammad Aslam where Shadi Khan's case is distinguished.

Remand u/S. 344 Cr.P.C. not obtained after cancellation of bail. Bail allowed. PLJ 1992 Cr.C. (Pesh.) 55, Ayub.

Accused not produced before Sessions Court and no remand order on the file. Held, Supreme Court decision PLJ 1978 SC 142 = PLD 1978 SC 38. Shadi Khan v. Muhammad Saleem not applicable. Bail allowed PLJ 1978 Cr.C. (Lah.) 233. Muhammad Aslam PLD 1978 Lah. 296 (1).

No valid adjournment u/S. 344, Cr.P.C. by Sessions Court in murder case. Bail allowed. PLJ 1979 Cr. C. (Lah) 378 Yaqub Khan 1979 P Cr. LJ 1069.

No legal remand u/S. 344, Cr.P.C. The petitioners were held to be entitled to bail in case u/S. 302, PPC. PLJ 1981 Cr.C. (Lah.) 151. Mian Safdar Khan. etc.

Judicial remand not take, held, custody illegal. Accused to be released on bail. PLJ 1985 Cr.C. (Lah.) 96. Muhammad Ali etc.

Petitioner not produced before magistrate within 24 hours of his arrest, hence detention was illegal; bail allowed for offence u/S. 5/10 of Zina Hudood Ordinance, 1979 and also as Mst. Noor-un-Nisa made an affidavit that the petitioner had not committed Zina with her. Bail allowed. PLJ 1992 Cr.C. (Pesh) 311, Ali Zaman.

Remand order illegal. In a murder case sent up for trial to Sessions Courts, remand or adjournment u/S. 344, Cr.P.C. granted by a Magistrate and not by Sessions Court i.e., trial Court held, remand to custody illegal. Bail allowed. 1979 P.Cr. LJ 1069. Yaqub Khan.

SICK & INFIRM

Bail on medical ground refused when the disease could be treated in jail hospital. 1997 SCMR 1275, Muhammad Arshad.

Sickness for bail. It is not necessary that sickness for bail should be such which cannot be treated in jail or under the supervision of jail authorities or which is imminently dangerous to life. Bail allowed in a old case of heart trouble for offence u/Ss. 302, 307, PPC. NLR 1982 Cr. 223 Sardar Khalid Umar 1982 PSC 580.

Sickness or ailment which cannot be treated in jail premises and the specialist treatment is needed or if the detention in jail is likely to affect the capacity of the prisoner or is hazardous to his life, he should be released on bail. If the Court is not satisfied about the report of the medical board it should appoint another board for second opinion. PLD 1995 S.C. 58, Malik Muhammad Yousaf Ullah Khan.

Heart trouble. Medical certificates issued by responsible medical officers showing petitioner suffering from heart disease, held; order granting bail to be maintained. PLJ 1984 Cr.C. (Pesh) 288. Sardar Abdul Hamid v. Momin Khan etc.

Heart ailment & 55 years of age of the accused at whose instance the murder was alleged to have been committed. Bail not cancelled. 1982 SCMR 975 Sadiq Ali Shah. v. Khalid Umar.

Accused 75 years of age and suffering from aliments was a sufficient reason for granting him bail. Bail allowed in case u/Ss. 302, 324, 148/149 & 337-F (ii) PPC. 1996 SCMR 861, Arshad Mahmood.

Diabetes mellitus & tuberculosis were the diseases on grounds of which the High Court granted bail to the accused. Supreme Court did not cancel the bail 1981 SCMR 686.

Petitioner suffering from heart disease, bail allowed by Sessions Court not cancelled by High Court. NLR 1984 Cr. 462. Sardar Abdul Hamid v. Momin Khan, etc.

T.B. patient allowed bail by Supreme Court on the ground of sickness. PLJ 1983 SC 334. Ghulam Muhammad. NLR 1983 Cr. 372.

Sickness: idiopathic epilepsy, a serious disease, accused suffering from and not likely to have treatment of his own choice in jail hospital. Fits occurring in jail and difficult for jail authorities to look after. Bail allowed. (SC) 1978 SCMR 191 Banaras. PLJ 1978 SC 366.

Accused of unsound mind. Doctor stating that the accused was of unsound mind and needed treatment. Petitioner allowed bail PLD 1985 Kar. 594. Salim-ud-Din PLJ 1985 Cr. (Kar) 418.

Asthmatic Bronchitis chronic type with left pulmonary T.B. According to medical board petitioner needing proper treatment whether inside or outside jail. Bail not allowed. 1980 SCMR 305 Zarin Khan.

Bail on ground of sickness can be granted in case triable under Suppression of Terrorist Activities (Special Courts) Act, 1975, by the High Court, (DB) PLJ 1988 Cr. C. (Kar) 161. Abdul Hafiz Prizada.

Diabetes & heart ailment held to be good grounds for suspension of sentence of 10 years & fine. Appeal ordered to be heard at an early date. PLJ 1987 Cr. C. (Lah.) 444 Jamal Din.

Serious heart disease found by specialist. Confinement in jail may endanger life. Bail allowed in case u/S. 302, PPC. 1986 SCMR 847 Misal Muhammad.

Seriousness of sickness. For bail it is not necessary that the sickness should be dangerous to life but any sickness which Court considers requires constant care, test and treatment and special diet etc. not ordinarily available in jail are sufficient reasons for grant of bail. PLJ 1988 Cr.C. (Lah.) 615 Nawazish Ullah.

Bail on medical grounds allowed for offence u/Ss. 302, 324, 353/34 and Arms Ordinance on medical grounds as the jail doctor had reported that the pettiioner sufered from epilepsy and stomach ulcer which could not be treated in jail for lack of proper facilties. (DB) PLJ 1997 Cr.C. (Kar) 1387, Farhan Iqbal.

Bail granted on medical ground cannot be cancelled after accused is cured unless there are other circumstances. PLJ 1997 Cr.C. (Lah) 1617, Muhammad Siddiq v. Abdul Wakil.

SUSPENSION OF SENTENCE

As re-appraisal of evidence for disposal of suspension of sentence application was needed the reason given by High Court for not releasing the accused on bail u/S. 426 Cr.P.C holding that re-appraisal of evidence was not advisable nor admissible at that stage. Supreme Court held that such reasons were not warranted by sec 426 Cr.P.C. The High Court should have disposed of the bail application on merits even if it was not covered by sub-section (1-A) of section 426 Cr.P.C. The bail matter was not remanded to High Court for decision on merits but High Court was directed to dispose of the appeal within one month. 1994 SCMR 277, Muhammad Akram.

Bail u/S. 426(1-A)(a) to (c) for offence u/S. 302/34 PPC can only be refused when:

(1) Proviso 3rd and 4th to Sec. 497 Cr.P.C. are applicable.

(2) If it is apprehended that the convict when enlarged on bail might repeat the offence.

(3) High Court has already fixed the appeal for hearing.

PLJ 1997 Cr.C. (Lah.) 616, Muhammad Akram, etc.

Suspension of sentence u/S. 426(1-A) Cr.P.C. The power is not fettered by provisions of sections 497 and 498 Cr.P.C. Reasons for declining bail u/S. 426(1-A) must be other than the merits of the case. When High Court had declined to grant bail on the ground that the petitioner was assigned specific injury to deceased, although two years had passed since his conviction and his appeal was not decided. When bail u/S. 426(1-A) Cr.P.C was declined on merits of the case, the reason was held to be irrelevant. Cr.P.L.A was converted into appeal and the appellant was admitted to bail. PLJ 1995 S.C 429, Liaqat Ali.

Suspension of sentence u/S.. 426(1-A) Cr.P.C. is a rule and its refusal is an exception for which reasons have to be recorded. PLD 1997 Kar. 361, Idrees.

For suspension of sentence u/S. 426(1-A) (c) Cr.P.C. the Court has discretion to grant or refuse bail, but when bail is refused the Court has to give reasons. Bail allowed. 1996 SCMR 1559, Rana Muhammad Ashiq etc.

Sentence not suspended by High Court u/S. 426(1-A)(c) Cr.P.C. and appeal was fixed for a specified date. Appeal was not heard on that day. Petition converted into appeal and bail allowed. 1997 SCMR 1183, Bahadar etc.

Appellate Court to give reasons for releasing the accused on bail u/S. 426(1) Cr.P.C. Power u/S.. 426 Cr.P.C. is not controlled by the provisions of Section 496 & 497 Cr.P.C. although the principles therein will have to be borne in mind while granting or refusing bail. Power of the Court is not wider u/S. 426 Cr.P.C. than those u/S. 497 and 498 Cr.P.C. PLD 1992 S.C. 463, Bashir Ahmed v. Zulfiqar etc.

Merits of the case are irrelevant while considering suspension of sentence u/S. 426-(1-A) Cr.P.C. 1995 SCMR 1819, Liaqat and another.

Death sentence suspended and bail allowed as the convicted police officer raised plea of self-defence which required examination. NLR 1986 Cr. 812 Altaf Hussain Shah.

Where order of enhancement of life imprisonment is passed the appellant is not to be released on bail u/S. 426-1-A(3) Cr.P.C. PLJ 1995 S.C. 429. Liaqat v. State.

Bail in appeal from acquittal. Presumption of innocence flowing from order of acquittal. Heinousness of crime is not by itself a ground for refusing bail. "Rule of Practice" to refuse bail in cases punishable with death and transportation has judicial basis. Discretion to be exercised on the facts of each case. Discretion cannot be fettered by any rule of practice. Sec. 427 is not controlled by sections 497 and 491, Cr.P.C. Consideration in grant or refusal of bail are: Possibility of absconding or tampering with evidence. Bail allowed by Supreme Court. (SC) PLD 1962 SC 495 Khalid Saigol.

Non-bailable warrants issued against the accused when special leave to appeal is granted against order of acquittal by the High Court. Section 497 (2), Cr.P.C., is not applicable to the case when leave is granted by the Supreme Court against acquittal; Bail refused. (SC) 1969 P.Cr.LJ 357. Muhammad Ismail v. Khursheed Muhammad etc.

Note: In appeal from acquittal under section 417 or revision from acquittal under section 439, Cr.P.C. warrants of arrest may be issued under section 427, Cr.P.C.

Bail to life convict pending appeal. On grounds of old age and sickness granted by the High Court, held that the High Court exercised the discretion properly. (SC) 1971 SCMR 657 Maqsood v. Ali Muhammad.

Bail after conviction in bailable offences under section 426, Cr.P.C. There is no general rule that an accused in bailable offences is entitled as of right to be enlarged on bail during the pendency of an appeal from conviction. Bail is discretionary with the Court. (SC) 1969 SCMR 151 State v. Shah Sarwar overruled, Hata and others. PLD 1967 Lah. 1302.

Bail allowed by Trial Court after conviction must fix a reasonable period for enabling convict to obtain order for suspension of sentence from appellate Court. (SC) PLD 1953 FC 138 Nafajullah.

Suspension of sentence in life imprisonment case, u/Ss. 302, 149, 120-B PPC. was allowed when the record did not support the findings of the trial Court NLR 1983 Cr. 341. Mian Sardar.

Bail to life convict pending appeal in the High Court refused by High Court. Conviction for abetment, under section 109/302, P.P.C. Prosecution witnesses appeared before police for statements under section 161, Cr.P.C. to make out a case of abetment against the accused 40 days after the occurrence. Accused named in the F.I.R. as a suspect. Bail granted by Supreme Court. (SC) 1972 SCMR 683 Elahi Bakhsh. Bail to life convict, upheld by (SC) 1978 SCMR 149 Abdul Ghaffar v. Anwarul Hassan.

Life imprisonment suspended when the accused were empty-handed and did not cause any injury to the deceased. Bail allowed. (DB) 1994 P.Cr.LJ 984 Muhammad Nawaz.

When suspending sentence u/S. 426 Cr.P.C. and granting bail to the convict appellate Court is not fettered by the provisions of Ss. 497 & 498 Cr.P.C. Unless strong grounds are made out to appear that conviction is not liable to be sustained bail u/S. 426 Cr.P.C. will not be granted and the powers to release on bail u/S. 426 are not wider than those u/Ss. 497 & 498.

Police challan is nothing but an opinion expressed by the investigating Agency and is irrelevant for releasing the accused on bail pending appeal. Unless there is glaring illegality or error in the judgment Courts are reluctant to suspend the sentences of life imprisonment. However, bail can be granted in proper cases where the accused has been convicted for an offence punishable with death or life-imprisonment. PLD 1992 S.C. 463, Bashir Ahmed v. Zulfiqar and another (1969 SCMR 151, State v. Shah Sawar ref.)

Sentence of life imprisonment suspended on the ground of the petitioner being a female and the other petitioner was found innocent by the police during investigation and was discharged by the magistrate. 1994 P.Cr. LJ 514, Masood Ahmed etc.

Bail pending appeal. Supreme Court will not interfere unless discretion exercised by the High Court arbitrary. (SC) 1971 SCMR 155 Abdul Ghafoor.

Surrender of applicant is a condition precedent for entertainment of bail application when order of arrest is issued in appeal from acquittal. (SC) PLD 1962 SC 495 Khalid Saigol.

Bail pending appeal on opinion of investigating agency. Police challan is nothing but opinion expressed by the investigating agency. Such report is irrelevant for releasing convicts on bail pending appeal. High Court's action in granting bail on the basis of police challan held neither admissible nor proper. (SC) 1971 SCMR 350 Muhammad Ashraf.

Bail pending appeal when sentence short. High Court refusing bail to convicts sentenced to 5 years' R.I. Contention that High Court not justified in refusing bail as by the time the appeal is taken up the convicts would have served out their sentence. Held. normally in short sentence cases appeal is disposed of within a year, held the petitioner is at liberty to file fresh petition for bail to the High Court if case not taken up within a year. (SC) 1971 SCMR 511 Muhammad Aslam. 1971 SCMR 1 Rais-ud-Din.

Sentence suspended on oral petition by the counsel of the appellant when the trial was found to be without jurisdiction and the appellant had already suffered 17 months in custody. (DB) PLD 1994 Lah. 93, Nusrat.

Admission of appeal and bail. High Court while admitting appeal refusing to grant bail found not to have exercised discretion properly in the circumstances of the case, bail allowed by the Supreme Court. (SC) 1968 P.Cr.LJ 185 Kala and others. (See 1970 SCMR 515 where bail not allowed).

Suspension of sentence Appellate Courts' discretion is not fettered or restricted by reference to the conviction or the sentence. Supreme Court upheld the suspension of life imprisonment sentence. (SC) 1978 SCMR 449 Abdul Ghaffar v. Anwar-ul-Hassan PLJ 1978 SC 392.

Suspension of sentence of whipping till decision of appeal to be allowed as it has elements of social disgrace, physical pain, and loss being irreversible. PLJ 1984 SC 59. Ghulam Sarwar.

Convict empty-handed and not causing injuries to the deceased, Sentence of life imprisonment suspended. (DB) NLR 1988 Cr. 677 Barkat Ali etc.

Appeal of life convicts not heard for two years, High Court dismissed the bail application with the observation "Yet in the circumstances of the case, I do not consider it proper to enlarge them on bail on that ground alone.": Held, benefit expressly given by the Cr.P.C. cannot be withheld on such ground. Bail allowed. 1991 SCMR 1459. Muhammad Yaqub.

Suspension of sentence refused after passage of two years without appeal being heard in a life imprisonment case because the judges directed that the appeal be fixed for hearing within 4 months. (DB) NLR 1994 Cr. 295, Gulbaz etc.

Suspension of sentence after expiry of two years is not to be ordered as a matter of right. Specific injuries caused by petitioner to the deceased. Bail refused PLJ 1984 Cr.C. (Lah.) 89. Muhammad Munir.

Composition of offence u/S. 307, PPC. in statement made by the injured in the Supreme Court for suspension of sentence. Bail confirmed by Supreme Court. 1990 SCMR 568. Azrar Ahmed Butt.

High Court recalled the suspension of sentence order passed in appeal without notice to the appellant while hearing Criminal Revision for enhancement of sentence. High Court order set aside and the previous bail order and bail bonds maintained, by the Supreme Court. PLJ 1995 S.C. 612, Sajjad Bashir.

Suspension of sentence. When eye-witnesses and recovery witnesses disbelieved, sentence of 10 years. R.I. suspended. PLJ 1978 Cr.C. (Lah.) 10 Madan Lal.

Infirmity: suspension of sentence. Petitioner awaiting confirmation of Death Sentence, 90 years old, and mentally as well as physically infirm. Proviso to section 497(1), Cr.P.C. can be invoked in application for suspension of sentence under section 426, Cr.P.C. Petitioner released on bail. (DB) 1979 SCMR 1104 Hazrat Ullah.

Suspension of sentence. Various sentences when ordered to run consecutively are to be treated as one sentence for the purpose of section 426 (1-A), Cr.P.C. Period of more than two years elapsing since conviction and appeal not disposed of. No useful purpose can be served by cancelling bail. PLD 1980 SC 295 Akbar Ali v. Muhammad Hanif. PLJ 1980 SC 484.

Sentence suspended on the ground that the petitioner was a student of law and had remained on bail during proceedings in the High Court and that leave to appeal had been granted by the Supreme Court. 1994 SCMR 1206, Rafaqat Ahmed.

Suspension of sentence refused by the Supreme Court for the reason that the matter was pending in the High Court in appeal and it is seized of all aspects of the case. To move the Supreme Court at this stage against an interlocutory order of the High Court is not warranted or justified. 1994 SCMR 1176, Ahmed Subhan.

Bail after conviction. Ordinarily a person convicted under section 302, P.P.C. cannot be released on bail. Section 426, Cr.P.C. however does not impose any such limitation on the power of the High Court and the High Court for good and sufficient reasons can exercise its power under the above section. (Bail has been granted by the High Court in this case as only a lalkara had been attributed to the accused). (SC) 1968 SCMR 1064 Abdullah Khan v. Karam Dad Khan. 1978 SCMR 149 Abdul Ghaffar v. Anwarul Hassan.

Bail under section 426, Cr.P.C. Power to grant bail under section 426, Cr.P.C. is not wider than that under sections 497 and 498, Cr.P.C. Bail under section 426, Cr.P.C. is to be granted only when strong ground is made out that the conviction is not sustainable. (SC) 1969 SCMR 81 Bahar Khan.

Bail on statutory ground u/s. 426 (1-A) refused by High Court. Supreme Court suspended the sentence of life imprisonment converting Cr.P.S.L.A. into appeal. 1995 SCMR 1109, Barkat Hussain.

Sentence suspended u/s. 426 (1-A)(c) Cr.P.C. for offences u/Ss. 302, 452, 148, 149 PPC, when 2 years had passed without appeal being heard, held, merits of the case are not to be considered. PLJ 1996 Cr.C. (Lah) 1137, Manzoor Ahmed.

Statutory period for disposal of appeal having expired but neither the sentence was suspended by the High Court nor the appeal was disposed of. Supreme Court converted the petition into appeal and allowed bail. 1994 SCMR 480, Altaf Hussain Shah.

Bails & Bonds

Select Rulings

Suspension of sentence on statutory ground declined. Period of 2 years had expired but the petitioner's appeal had not been decided. Bail was refused as there was likelihood of the repetition of the crime. (D.B) PLD 1996 Lah 269, Nazoo.

Section 426-A, Cr.P.C. and rule of suspension of sentence for delay of 2 years when appeal is not heard by Supreme Court does not apply when the appeal is pending in the Supreme Court. 1983 SCMR 234. Abdur Razaq etc.

Under Sec. 426(1-A) Cr.P.C. the Court may refuse to suspend the sentence if it considers that the convict is likely to commit further offence. Inordinate delay does not create a right for the suspension of sentence when Court record reasons for not granting bail, 1992 SCMR 1903, Shahbaz = PLJ 1992 S.C. 463.

When detention not for continuous period of two years, held, the proviso to sec. 497 Cr.P.C. shall not apply. Bail cancelled as the detention was for one year and ten months and then again for one year with a break in between. PLJ 1997 Cr.C. (Lah.) 1152, Muhammad Hanif v. Muhammad Tariq.

Delay in trial caused by co-accused cannot be attributed to accused/petitioner in calculating period for delay in commencement of trial for purpose of bail on account of statutory period. PLJ 1997 SC 1426, Shaukat Ali v. Ghulam Abbas etc.

Accused being in jail for over 2 years without any trial becomes entitled to statutory bail. Bail allowed. 1997 SCMR 1097, Rizwan Ahmed etc.

Section 382-A Postponement of execution of sentence. Notwithstanding anything contained in section 383 or 391, where the accused.

(a) is awarded any sentence of imprisonment under section 476, or

(b) is sentenced in case other than those provided for in section 381, to imprisonment whether with or without fine or whipping, for a period less than one year, the sentence shall not, if the accused furnishes bail to the satisfaction of the Court for his appearance at such time and place as the Court may direct, be executed, until the expiry of the period prescribed for making an appeal against such sentence, or if an appeal is made within that time, until the sentence of imprisonment is confirmed by the appellate Court, but the sentence shall be executed as soon as practicable after the expiry of the period prescribed for making an appeal, or, in case of an appeal, as soon as practicable after the receipt of the order of the Appellate Court confirming the sentence.

SPECIAL COURT CASES

Grant of bail after conviction by Special Court under Act XV of 1975 Suppression of Terrorist Activities. Bail allowed by High Court pending appeal in spite of section 7 of the Act on the ground that the words in that section;" but save as aforesaid" were an exception to the bar contained in the section and the High Court in appeal could grant bail and also that the Court hearing has power to grant relief which is ancillary or incidental to appeal (See Section 423 (1)(d) Cr.P.C.). Trend of Court is not be lean in favour of ouster of jurisdiction in case of grant of bail or extending benefit to an accused person of certain beneficial provisions of relevant law. High Court also has power under Article 203 of the Constitution. PLJ 1989 Cr. C.(Kar.) 318 (DB), Ubedullah.

High Court can grant bail u/S. 497(1) Cr.P.C. during trial before Special Court for Suppression of Terrorist Activities. Section 561-A Cr.P.C. can also be pressed into service in an appropriate case and bail can be granted on medical grounds. 1992 SCMR 2192, State v. Syed Qaim Ali Shah.

Suspension of sentence after conviction by Special Court of Suppression of Terrorist Activities by High Court cannot be ordered u/S. 426 Cr.P.C. nor ancillary or incidental or independent power from section 426 Cr.P.C. is available to High Court. 1992 SCMR 2192, State v. Syed Qaim Ali Shah.

Special Court for Terrorist Activities, bail can be granted by High Court as well as Special Court on medical grounds, 1992 SCMR 2192, State v. Qaim Ali Shah.

TAMPERING WITH EVIDENCE

Tampering with evidence. Bail allowed u/S. 497 (2), Cr.P.C. cannot be cancelled on the ground of tampering with prosecution evidence. 1978 P.Cr. LJ 266. Sardar Khan v. Muhammad Fazil.

Fear of tampering with evidence. Bail cannot be refused because of the fear that after bail the accused would tamper with evidence. State in such a case can have recourse to Sessions Court. 1978 SCMR 64. Ijaz Akhtar.

Suborning prosecution evidence. Petitioners could urge such question with proper material before trial Court. Leave not granted. (SC) 1978 SCMR 204. Atta Muhammad v. Shera etc. PLJ 1987 SC 346.

No possibility of tampering with prosecution evidence, as the entire evidence is documentary and in possession the prosecution. Bail allowed in case u/S. 409, 406, 420, 468 & 471 PPC. 1996 SCMR 1132, Saeed Ahmed = 1995 SCMR 170.

Tampering with evidence. Vague and general allegations of the fear of tampering of the evidence and suborning of the witnesses, it is not a sound reason for refusing bail. AIR 1940 Nag. 149 Ingly v. Emp. AIR 1930 Bom. 484 Guru v. Crown.

Interim bail not abused for 6 months. Policy of law is to allow bail. Sum involved was Rs. 83, 47, 910. Bail confirmed. PLJ 1989 Cr.C. (Kar.) 435. Irshad and another.

TRIAL COMMENCEMENT

Trial already commenced and date fixed for evidence is no bar to the grant of bail if the petitioner is otherwise entitled to bail. PLJ 1995 Cr.C. (Lah) 53, Wali Muhammad.

When trial is commenced or is about to commence bail is normally and cancelled. But such observations depend on the facts of each cases. Such observations may tend to affect the trial. Where bail application can be decided on the grounds independent of merits or without touching the same, the Court can pass orders as observations made will not prejudice the trial. 1996 SCMR 172, Khushi Muhammad v. Rab Nawaz etc.

VICARIOUS LIABILITY

Common intention to be distinguished from similar intention. No evidence of sharing intention with co-accused. Bail allowed u/S. 302/34, PPC. PLJ 1980 Cr.C. (Kar.) 427. Naila.

Vicarious liability. Circumstances of the case warranting that it required further inquiry. Bail allowed for offence u/Ss. 302, 307, 452, 148, 149, P.P.C. NLR 1982 Cr. 151 Riaz etc.

Question of vicarious liability should not be examined at bail stage. The question whether the petitioners shared the common intention murder or murderous assault needs further inquiry. Bail allowed. NLR 1981 Cr. 95. Muhammad Nawaz etc. NLR 1981 Cr. 132 Haji Mohabat etc.

Whether case of vicarious liability. Court on basis of material placed before them, that is police statements and FIR can even at bail stage go into the question whether vicarious liability made out or not subject to rule laid down in PLD 1972 SC 81 Manzoor. 1979 SCMR 92. Muhammad Rashid.

Vicarious liability. On the basis of FIR and statement u/S. 161, Cr.P.C. Courts are justified at bail stage to go into the question of vicarious liability. Bail refused. 1979 SCMR 92 Muhammad Rashid.

MISCELLANEOUS

M.P.A. granted interim bail to attend the Session of the Legislative Assembly for offences u/Ss. 409, 420, 468, 471, 419, 109 PPC, as it would take quite some time to decide the bail case on merits. PLJ 1995 Cr. C. (Lah) 374 (D.B), Ch. Pervaiz Elahi.

Supreme Court not to interfere in bail matters ordinarily, particularly in cases of murder, when the trial was going to commence to avoid discussions and remarks about the merits of the case. 1992 SCMR 1418 Mian Dad.

FIR and Bail: Basing conclusions solely on the allegations in the FIR is not a correct approach to the problem on the question of bail. (SC) 1976 SCMR 157 Abbas Ali FIR version is not sacrosanct. (SC) PLJ 1978 SC 327 Khalid Javed Gilan PLD 1978 SC 256.

Death of near relative is no ground for releasing an accused on bail. PLD 1992 Lah. 333, Umar Draz.

PWs not appearing before the inquiry Magistrate in spite of coercive process, in a murder case. Bail allowed. PLJ 1975 Cr. C. (Lah.) 435 Ghulam Muhammad etc.

Lengthy investigation and examination of records involved in a case under sections 420, 468, 470 and 471, P.P.C. Records in possession of police could not be tampered with by the accused if enlarged on bail. Presence of accused in custody not required. Bail allowed. (SC) 1976 SCMR 178 Muhammad Sarfraz etc. 1977 P.Cr. LJ 676 Brig. Sahib Dad Khan.

First offender only and injury on non-vital part of the body. Accused had remained in custody. Bail allowed by Supreme Court on bonds already furnished before the Magistrate. 1993 SCMR 248, Muhammad Jaffar.

Investigation to take long time: FIR containing main allegation against co-accused. Bail allowed in case under sections 468, 471, 406, 409, P.P.C. PLJ 1974 Cr.C. (Lah.) 490 Khair Din.

Trial to take long time to complete. Huge record and 70 PWs to be examined. Accused already in jail for sufficient time. Bail allowed. (SC) 1977 SCMR 474. Muhammad Iqbal Zafar.

Long list of 70 witnesses an sanction awaited. Bail allowed in anti-corruption. (SC) PLJ 1978 SC 196. Muhammad Iqbal Zafar.

Bail granted by Supreme Court when Courts below did not consider such aspects of the case justifying grant of bail. 1980 SCMR 269. Muhammad Azam etc.

Bail rejected by Supreme Court but granted by High Court, when it was rejected by Supreme Court on merits, the bail was granted by the High Court on the ground of delay. 1979 SCMR 362, Abdul Rashid v. Mushtaq Ali. etc.

Accused to be deemed to have been released on bail when trial is not concluded within one month. Earlier High Court had directed the trial Court to conclude the trial within 3 months which had not been done. 1997 SCMR 436, Ashok.

Petitioner not assailant or conspirator according to the FIR petitioner allowed bail. (SC) 1976 SCMR 366 Manzoor Ahmad Bhatti.

Improper reason. High Court dismissing petition for bail by tense order. "No grounds for bail. Dismissed". Held: High Court did not give proper reasons for refusal to grant bail. (SC) 1969 SCMR 113 Fazalur Rehman etc.

Accused remanded to police custody in non-bailable offence. Bail to be granted on very strong grounds. PLD 1951 Pesh. 37 Fateh Muhammad v. Crown.

Bail pending trial in Special Court under Suppression of Terrorist Activities Act. 1975. High Court has power u/S. 497 Cr.P.C. read with Sec. 561-A Cr.P.C. to grant bail subject to the provisions of Sec. 497 Cr.P.C. 1991 SCMR 599, Muhammad Aslam ref. High Court has no power u/S. 426 Cr. P.C. to suspend the sentence when appeal is pending in the High Court from the sentence passed by the Special Court. However, when there is unconscionable delay in the decision of the appeal the High Court may suspend the sentence u/S. 561-A Cr.P.C. The High Court under the Suppression of Terrorist Activities Act is to decide the appeal within 3 months as provided u/S. 7(2) of the Act. When the appeal is not decided within 3 months the High Court may suspend the sentence u/S. 561-A Cr.P.C. High Court may also suspend the sentence when the appellant is ill in Jail and cannot be treated in Jail or Government Hospitals. PLJ 1992 SC 625, State v. Syed Qaim Ali Shah.

Delay in the disposal of the case by the State would be a clear abuse of the process of the Court entitling the accused to seek bail u/S. 497(1) third proviso Cr. P.C. if not u/S. 561-A Cr.P.C. PLJ 1992 SC 625 State v. Syed Qaim Ali Shah.

On medical grounds, the Special Court as well as High Court can grant bail to the accused, 1992 SCMR 2192, State v. Syed Qaim Ali Shah PLJ 1992 S.C. 625.

West Pakistan Control of Goondas Ordinance 35 of 1959. Bail refused because the witnesses had not been examined. The application was premature. Held, non-examination of witnesses was not a fault of the detenu but that of the police and the tribunal. Delay amounted to legal malice. Ordinance does not envisage detention without inquiry. Bail allowed. (DB) PLD 1975 Kar. 833. Allah Bakhsh v. The Province of Sindh etc.

Control of Goondas Ordinance. Sections 6 and 8, persons proceeded against under these sections cannot be granted bail under section 498, Cr.P.C. (DB) 1968 P. Cr.LJ 1806 Muhammad Khan.

Overruled. PLD 1967 Lah. 810 Muhammad Aslam.

No public witness associated by police when petitioner was arrested from Commercial Area and his person was searched. Report of Chemical Examiner not received. Bail allowed. PLJ 1994 Note 72, Muhammad Tasleem Khan.

Confessional statement of co-accused only evidence against the petitioner in case u/S. 302, 365/34 PPC. Bail allowed. PLJ 1997 Cr.C. (Kar) 94, Muhammad Hanif.

Act or omission of co-accused, when being jointly tried cannot deprive other accused of benefit of bail u/S. 497 (1) 3rd proviso Cr.P.C. Court is required to examine case of each accused individually.

Even adjournment sought by defence counsel representing the accused on account of his engagement in professional work cannot be a ground to refuse bail to him on statutory ground. PLJ 1996 Cr.C (Lah) 1713, Muhammad Sadiq etc.

Bail allowed for offence of keeping forged currency notes u/Ss. 489-A, 489-C, 489-D/34 PPC. When prosecution itself was not sure about genuineness or otherwise of seized dollars which can be ascertained only in USA. No reliable evidence available about possessing instruments or material for forging currency notes. Co-accused already allowed bail. PLJ 1994 Cr.C. (Kar.) 36, Waseem Ahmed.

Bail for offences being proceeded under Jirga. Criminal Law Amendment Act (VII of 1963) since repealed bail allowed under writ jurisdiction (DB) Cr. Misc. 2952 of 1966 Muhammad Shafi v. State (unreported). Bail not allowed under section 498, Cr.P.C. in cases under Act VII of 1963 (SC) PLD 1966 SC 701 Mahmud Beg v. Commissioner.

Special Military Court Case. When case is transferred to a Military Court the civil Courts have no jurisdiction to grant bail. (SC) PLJ 1978 SC 334. Rana Muhammad Amin. 1978 SCMR 420.

Cognizance by Military Court not taken. Though case approved for trial by Military Court. Held, ordinary Courts shall continue to exercise jurisdiction PLJ 1980 Lah. 164. Muhammad Yaqub.

Offences under Penal Code and Martial Law. Case not registered by Martial Law authorities nor they are concerned with it. Bail allowed by High Court. 1979 PCr. LJ 185. Muhammad Siddiq.

Bail by Sessions Judge and detention by Special Military Court. After the grant of bail when the Military Court had taken the cognizance of the offence, the Military Court was held to be competent to do so. PLJ 1978 Cr.C. (Lah.) 434. Abdur Rashid.

Power of High Court to grant bail in cases pending with Special Court notwithstanding the ouster of jurisdiction under section 10 of Banks (Offences in respect of) Special Courts Ordinance IX of 1984. However, High Court is not to grant bail after conviction under section 426, Cr.P.C. PLJ 1985 Cr. (Lah.) 1. = (DB) NLR 1985 Cr. 13. Aftab Hussain. NLR 1985 Cr. 238 Abdul Majid etc.

Eye-witnesses appearing before police 3 weeks after the occurrence. Bail allowed. 1977 P.Cr.LJ 494. Liaqat Ali etc.

Suppression of Terrorist Activities (Special Courts) Act XV of 1975. The Division Bench of a High Court has power to suspend the sentence and grant bail under section 426, Cr.P.C. in suitable cases where the appellant is convicted under the Act. (DB) PLD 1975 Kar. 628 Jawad Beg.

Offence under section 161, PPC read with section 5 of Act II of 1947. Neither offence is punishable with death or transportation for life. Refusing bail because petitioner was B.D. Member. Such order ex facie arbitrary and based on irrelevant consideration. Bail allowed. (SC) 1969 SCMR 693 Abdul Rashid. 1969 P.Cr.LJ 1525.

Bail under section 427, Cr.P.C. is to be granted by High Court and not by subordinate Courts. (DB) PLD 1961 Lah. 42 State v. Shafaat Ahmad.

Abduction and rape. Girl used to sexual intercourse between 17 to 18 years old and stating that she left her house of her own accord, but again deposing in favour of prosecution. Commission of rape dependent on outcome of determination of question of abduction. Bail allowed. (SC) 1976 SCMR 157 Abbas Ali.

Bail in revision petition under section 439, Cr.P.C. Sentence 3 years' R.I. under section 307, PPC. Revision petition admitted by High Court but bail refused. Supreme Court upheld the order as High Court had exercised the discretion properly. (SC) 1970 SCMR 515 Khushi Muhammad (See 1968 P.Cr.LJ 185 where bail allowed).

Bail under section 107/151, Cr.P.C. Provisions of section 496, Cr.PC. are not applicable to arrest under section 107/151, Cr.P.C. police cannot enlarge the persons on bail. (SC) PLD 1972 SC 74 Muhammad Rashid Hayat Khan v. Malik Khair Din etc.

Accused in judicial lock-up, no longer required for investigation. Sanction for prosecution to be obtained. Handwriting expert's opinion awaited. Presentation of challan to Court to take some time. Bail allowed for offences under section 424/465/66/471, P.P.C. 974 P. Cr.LJ 600 Muhammad Ghazi Khan.

Accused in lock-up over 15 days without express authority of Court. Entitled to be released on bail. PLD 1951 Pesh. 37 Fateh Muhammad v. Crown.

In retaliation of hand blows lathi blows given, killing the deceased. Bail allowed. 1985 SCMR 1946. Ghulam Asghar.

Involvement and conviction in other cases is a ground for refusal of bail to the accused. 1975 P Cr. LJ 628 Muhammad Iqbal.

Sanction not obtained, bail allowed by Special Court (Terrorist Activities) and also because the hand-grenades were not kept for subversion. NLR 1987 Cr. 590. State v. Maqbool Hussain.

Bail in Banks (Special Courts) Ordinance Cases. High Court competent to grant bail u/S. 498, Cr.P.C. in cases pending before Special Courts of Banks. (DB) PLJ 1986 Cr.C. (Kar.) 253, Muhammad Mossa.

Interim bail for detenu in Maintenance of Public Order Ordinance is not to be granted as it may defeat the very purpose of the Ordinance. (DB) PLD 1988 Kar. 92 Abdul Jabbar.

Sections 406 and 420, PPC cannot apply to the same case, as there is criminal breach of trust u/S. 406 while there is element of cheating u/S. 420, PPC, but police apply both the sections to make the case non-bailable. Bail allowed. NLR 1988 Cr. 403 Muhammad Hussain.

Failure of police to associate persons from public is not a sufficient ground for release of the petitioner on bail when 400 grams of heroin is recovered from his person. PLJ 1988 Cr. C. (Lah.) 332. Shaukat Ali.

Control of sureties over the accused is not unlimited and it is upto such minimum period which is required for the surety to contact the public authorities to get himself relieved of the surety bond and to enable the Court to pass such suitable order about the accused. Where a surety for the appearance of a woman took her away and kept her in the house and took no steps for her production in the Court and the woman had to be recovered by the police under a warrant. Held, the surety acted beyond its powers, and was guilty u/S. 366, PPC. (DB) 49 Cr. LJ 1. Chotey Lal.

Confession recorded on oath by Magistrate. Name of petitioner not mentioned in FIR, bail allowed. PLJ 1988 Cr.C. (Kar.) 614, Ghanwar.

Extra-judicial confession of one witness is not enough to refuse bail when two out of three witnesses have sworn affidavits that no extra-judicial confession was made to them. Bail allowed for offended u/S. 302/201 PPC. PLJ 1996 Cr.C (Lah) 322, Ikhtiar.

BONDS

Forfeiture of bail bond, principle: Full amount of surety bond is to be forfeited if the circumstances so require. Principle laid down by Supreme Court in Dildar and another v. The State; PLD 1963 S.C. 47: "A balance has to be held between undue leniency, which might lead to the abuse of the procedure and interfere with the course of justice in a large number of cases, and on the other hand, undue serverity which might lead to unwillingness on the part of neighbours and friends to come forward," does not require any modification because of the down hill slide in moral values all around since then and on account of the incident of increase of accused jumping bail after they are released on bail. Petition dismissed. PLD 1997 SC 406, Zeeshan Kazmi, also see PLD 1997 S.C. 267.

Amount of surety bond in bail cases should be fixed keeping in view the financial position of the accused. Amount reduced from Rs. 2,500,000 to Rs. 1,500,000. NLR 1989 Cr. 636. Mian Abdul Wahid.

Amount of surety reduced from Rs. 15 lac to Rs. 1 lac, as the co-accused had been released on furnishing surety for Rs. 1 lac. The amount of surety bond fixed by the Special Court was held to be harsh, excessive and unreasonable keeping in view the status of the accused in life. 1994 P. Cr.LJ 118, Rana Muhammad Siddiq. Also see 1994 P.Cr.LJ 299, Muhammad Tanvir.

Cash security in bail: Rule is that the Court while dealing with application u/S. 497/498 Cr.P.C. has no power to insist upon deposit of cash security in connection with his bail. (D.B) PLD 1997 Lah. 605 State v. Muhammad Hasham Babar.

Excessive amount of bail bond nullifies the bail itself. High Court reduced the amount to Rs. 50,000 from Rs. 5,00,000. PLJ 1984 Cr.C. (Kar.) 244. Muhammad Younas.

Bail amount of Rs. 15 million with two sureties not considered excessive for 2 ladies facing trial under Ehtasab Ordinance. (FB) PLD 1998 Kar. 148, State v. Dr. Usman Farooqi, etc.

Bail bond verification. When a person offers to stand surety and submits his documents for verification the Court should determine the fitness of the surety. The Magistrate cannot act on the opinion of another authority such as the City Deputy Collector. PLD 1970 Kar. 187 Muhammad Saleem.

Security bond verification by Tehsildar. Magistrate demanding security beyond means in proceedings under section 107, Cr.P.C. or requiring Tehsildar to verify bonds or asking police to report about suitability of sureties condemned. PLD 1965 Pesh. 74 Muhammad Sarwar.

Forfeiture of surety bond; Principles. Additional Sessions Judge forfeiting entire amount of Rs. 5,000 of bail bond. Surety of petitioner not in any way connected with criminal activity or abscondence of accused. Effort of surety to secure presence of accused could not be fruitful as he had left the country. Held, default of surety would be adequately punished by making him pay Rs. 1,000 instead of Rs. 5,000. NLR 1984 Cr. 536. Allah Bakhsh.

Surety forfeited without notice to the surety u/S. 514 (1), Cr.P.C. Order set aside. Case remanded for fresh decision. NLR 1990 Cr. 185. Muhammad.

Surety not asked by the Court why the amount of bond be not realised from them. Order quashed. PLJ 1992 Cr.C. (AJ&K) 387, Raja Faizullah.

Forfeiture of surety: without show cause. Order to surety to pay the amount without asking to show cause against forfeiture order set aside. Case remanded for notice to surety to show cause and to determine the extent of forfeiture. PLJ 1978 Cr.C. (Q) 421. Syed Yaqub Shah. PLJ 1984 Cr.C. (Kar.) 32. Muhammad Ali.

Opportunity u/S. 514 (1), Cr.P.C. must be real, fair and reasonable. It should not be a make-belief or sham affair. Held, forfeiture order in the present case has violated the requirement, and as such was not sustainable. NLR 1990 Cr. 342. Momen Khan.

Surety cannot be forfeited without giving an opportunity to explain and lead evidence if so desired by the surety. NLR 1987 Cr. 382 (2) Sabir Hussain Shah.

Bond forfeited without hearing surety, the surety producing, the accused in Court, amount forfeited reduced from Rs. 5,000 to Rs. 1,000. 1976 P.Cr. LJ 1498. Liaqat.

Bond forfeited without notice to surety for absence of accused on one date. Surety producing accused on knowing that fact. Forfeiture order set aside. 1976 P.Cr.LJ 1389 Muhammad Ramzan.

Surety Bond not forfeited. The sureties were given notice by the High Court to produce the accused. They requested the Court to give them some time to produce the accused. When the sureties produced the accused in the High Court the Bonds were not forfeited. Cr.Misc. No. 144-M-84 Rehmat v. Malik Faqir Muhammad etc. Lahore High Court. Not reported.

Surety bond not forfeited as the surety had executed the bond to produce the accused in the Court of Sessions Judge and case having been transferred to the Court of Special Judge, Anti-Corruption, High Court held, that the forfeiture of surety bond was without lawful authority. NLR 1983 Cr. 2. Hassan.

Surety bond cannot be forfeited by transferee Court. When surety bond was executed before Sessions Court and the case was then transferred to the Special Court for Speedy Trials who forfeited the bond. Held, Special Court had no jurisdiction to pass an order of forfeiture u/S. 514 Cr.P.C. Only Sessions Court could pass such an order. PLD 1970 Kar. 46 = NLR 1983 Cr. (Kar.) and 1986 P.Cr.LJ 311 (Lah.) relied upon. PLJ 1992 Cr. C. (Lah.) 319, Muhammad Aman Ullah.

Amount of forfeiture reduced from Rs. 200,000 to Rs. 5,000 when the accused was produced before the Court by the effort of the surety and the surety had derived no monetary benefit. NLR 1988 Cr. 248. Munir Ahmed.

Amount of surety reduced from Rs. 10,000 to Rs. 5,000 when accused arrested with the efforts of the surety and petitioner had stood surety simply because the accused was a co-villager. 1990 SCMR 1300. Muhammad Sharf.

Bail bond of Rs. 40,000/- forfeited by trial Court, amount reduced to Rs. 10,000 keeping in view the principle of undue severity and undue leniency to keep the balance between the two, and because the absconding accused had been arrested and produced in Court. 1997 SCMR 1387, Muhammad Ashraf and another.

Confiscation of surety bond of Rs. 10,000 reduced to Rs. 3,000 By High Court. NLR 1987 Cr. 787. Ahmed Khan.

Forfeiture of surety. Petitioner stood surety not for monetary gain but out of benevolence. Amount of forfeiture reduced from Rs. 10,000 to Rs. 3,000 PLJ 1982 Cr.C. (Kar.) 286. Syed Nazir Ali Shah.

Bond forfeited u/S. 40, Frontier Crimes Regulation (III of 1901). As section 40 of F.C.R. is ultra vires of the Constitution hence forfeiture of bond u/S. 514, Cr.P.C. for being bound down u/S. 40, F.C.R. is not legal. Proceedings quashed. 1976 P.Cr.LJ 1388 Sardar Khan etc.

Forfeiture of surety bond. Petitioner surety not related to the accused and taking all possible measure to produce accused but failing due to circumstances beyond his control, amount of penalty reduced from Rs. 5,000 to Rs. 500 1977 P.Cr.LJ 940. Talib Hussain.

Bond forfeiture; consideration for Court to consider in the presence of the surety and then decide the extent of forfeiture, whether the sureties have direct interest through financial or blood relations with the accused; whether they connived with the accused for absence; whether they did their best to procure his attendance. 1975 P.Cr.LJ 954. Banaras.

Forfeiture of surety bond. The Court is to keep balance between leniency and severity while forfeiting the bond. Penalty reduced from Rs. 50,000 to Rs. 5,000. NLR 1990 Cr. 324 Zulfiqar etc.

Forfeiture of bond order passed without inquiring into the circumstances of the abscondence of the accused. In the absence of the inquiry the order of penalty held, illegal. 1975 P.Cr.LJ 1374 State v. Muhammad.

Forfeiture. The accused arrested through the efforts of the surety. Amount of forfeiture reduced from Rs. 2,000 to Rs. 50. PLJ 1975 Cr.C. (Kar.) 454 Aziz-ur-Rehmand 1975 P.Cr.LJ 58.

Forfeiture of surety bond set aside when it was proved before the Court that the absence of the accused was not wilful as the accused after his release on bail was arrested in two other criminal cases. 1994 P.Cr.LJ 1041, Muhammad Shafi.

When accused is produced by surety and non-bailable warrants by the Court had been fruitless the amount of surety bond was reduced from Rs. 50,000 to Rs. 20,000 only. PLJ 1992 Cr.C. (Kar.) 352, Buno.

Forfeited amount of bond reduced, as the surety was a poor man and had stood surety for his own son. Amount reduced from rupees 5,000 to rupees 1,000 1976 P.Cr. LJ 1283 Bahadar Khan.

Amount reduced of surety bond of Rs. 30,000 to 8,000 where there is nothing on record that the surety connived at the disappearance of the accused. NLR 1985 Cr. 385. Javed Iqbal.

Bond forfeiture of: Surety duty-bound to keep control over movements of accused released on his security to see that the accused attends the Court on all dates. Surety making frantic efforts to get the accused arrested and got him arrested within three days of forfeiture of bond. Amount of forfeiture reduced from Rs. 2,000 to Rs. 50. 1975 P.Cr.LJ 58 Aziz-ur-Rehman. PLJ 1975 Cr.C. (Kar.) 454.

Bail bond forfeiture. Amount reduced to 1/5th in the circumstances of the case. PLD 1963 SC 47 dildar and another.

Bail bond forfeiture. Out of a surety for Rs. 5,000 High Court forfeited only Rs. 250. PLD 1952 Lah. 645 Sardar Khan.

Bail bond forfeiture. Surety is liable to pay the amount of surety in addition to the principal amount of bond (DB) ILR 17 Lah. 523 Sardar Khan v. Crown (ILR 1923 Lah. 462 and ILR 1924 Lah. 448 overruled). PLD 1968 Lah. 1442 Sher Muhammad (FB) 41 Cr.LJ 757 Naraiy Sahair v. Emp. 225 I.C. 609.

Bond forfeiture of. No grounds given for the justification of imposing fine. Whether the absence of the accused was deliberate or beyond his control not inquired into. Held, order patently illegal. 1976 P.Cr.LJ 474. State v. Abbus Sattar.

Entire forfeited amount remitted When sureties produced the accused in Court after the passing of the order forfeiting surety amount of Rs. 25,000. NLR 1988 Cr. 613. Muhammad Fayyaz.

Forfeiture of surety bond of Rs. 30,000 set aside on the ground that the illiterate and poor tenants had stood surety for the accused not for any monetary gain but out of benevolence and humanitarian considerations. In the circumstances the surety bonds forfeiture was oppressive and unjust. PLD 1996 Lah 600. Shatab Khan and another = PLJ 1996 Cr.C. (Lah.) 1727.

Confiscation of surety bond of Rs. 25,000 set aside in revision u/S. 439 Cr.P.C. as the accused had absconded after the date for which the petitioner had stood surety. PLJ 1997 Cr.C. (Lah.) 1514, Sardar Muhammad

Surety a poor and illiterate person who had stood surety out of benevolence and not for personal gain, order for forfeiture of surety and imposition of penalty set aside. PLJ 1997 Cr.C. (Lah.) 47 Shita Khan. Also see PLJ 1997 Cr.C. (Lah.) 46, Shamim Khan and PLJ 1997 Cr.C. (Lah.) 49, Sardara.

Entire surety amount of Rs. 200,000 forfeited when the surety appeared to have helped the accused to abscond. The accused a French national was indicted for attempting to export 4800 grams of heroin worth 4,80,000. NLR 1989 Cr. 559. Iftikhar Ahmed.

Entire amount of security bond forfeited when no good ground made out for its reduction. NLR 1991 Cr. 246 Falak Sher.

Bail bond not forfeited as the surety had given no undertaking to produce the accused before the Military Court. PLJ 1991 Cr.C. (Lah.) 368 Fateh Khan.

Bail bond can be forfeited only by the Court where the accused had to appear. Forfeiture by Magistrate was without jurisdiction when the bond was for appearance before Sessions Judge. PLJ 1991 Cr.C. (Lah.) 128. Ashiq Ali.

Surety bond to produce accused at time and place specified in the bond and not at any other place. PLJ 1990 Cr. (Kar.) 399. Ali Jan.

Sureties not liable for absence of the accused as the accused did not abscond but was not spared by the Army as he was on duty in national interest. Appeal against forfeiture of surety bond accepted. 1990 SCMR 1129. Mohammad Akbar.

Surety bond amount reduced from Rs. 90,000 to Rs. 10,000/- as amount forfeited for absconding accused keeping in view the factors that there was no community of interest between the surety and the absconder and the financial status of the surety. PLJ 1996 Cr.C (Lah.) 945 Jahangir Khan. PLD 1963 S.C. 47. Dildar and another followed.

Amount of Rs. 100,000, of bail bond reduced to Rs. 10,000 only as the petitioner had stood surety not for financial benefit but because the accused was his real son. PLJ 1998 Cr.C. (Pesh.) 495, Aman Ullah and another.

Forfeited amount of security bond reduced from Rs. 1,00,000/- to Rs. 75,000/- by trial Court and further reduced by High Court to Rs. 60,000/- The Supreme Court declined to reduce the amount any further. 1996 SCMR 1995, Zafar Ali.

Forfeiture of surety bond of Rs. 100,000/- set aside as appellants (sureties) according to the terms of the bail bonds had undertaken to produce the accused in the Court of the Magistrate only, therefore they were not liable for the nonappearance of the accused in the Sessions Court. 1997 SCMR 571, Barkat Ali etc.

Only 1/5 of surety amount forfeited when the petitioner stood surety on humanitarian grounds only. PLJ 1991 Cr.C. (Kar.) 498. Khan Bahadar; PLJ 1993 Cr.C. (Pesh.) 228 Saif ul Malook.

Accused admitted to pre-arrest interim bail after jumping bail, held in such a case surety would not liable forfeiture of surety bond. Revision accepted. NLR 1994 Cr. 428, Muhammad Ishfaq.

Advocate identifying surety for bail on the basis of National Identity Card. The surety turned out to be a fake person. The Advocate was asked to submit his explanation, by the trial Court. The explanation was not accepted and the Court directed that a complaint be lodged against the Advocate in the concerned Police Station. High Court held that the Advocate had not given personal undertaking that he would be personally liable if surety turns out to be a fake person. The impugned order was held to be an abuse of the process of the Court and quashed. PLJ 1994 Cr.C. (Kar.) 312, Mr. Ilam ud Din Khatak.

Entire amount of bail bond is liable to be forfeited in absence of any mitigating circumstances, when the accused jumps bail bond. The accused who was SHO of a Police Station was expected to behave in a civilised manner. Entire amount of bail bond (Rs. 2,00,000) ordered to be forfeited. PLD 1997 S.C. 267, Zeeshan Kazmi.

Order to deposit Rs. 10,000,000/- in cash for grant of bail by Ehtesab Bench upheld by the Supreme Court. PLD 1998 S.c. 1, Hakim Ali Zardari.

Forfeiture amount of Rs. 200,000/- as surety ordered. The forfeiture of surety amount was reduced to 25% by the Sessions Court. High Court upheld the order. Where the accused persons jumped the bail and absconded after committing two murders in the Court premises. Plea of the sureties that they had not stood sureties for any monetary gain but on humanitarian basis. Supreme Court ordered the forfeiture of entire amount of bail bond. PLD 1998 SC 50, Abdul Bari v. Malik Amit Jan etc. PLJ 1998 SC 512 also see PLJ 1998 SC 641, Zeeshan Kazmi

BAILS AND BONDS

GENERAL PRINCIPLES FOR GRANT OF BAIL

PRINCIPLES FOR GRANT OF BAIL IN NON-BAILABLE OFFENCES:

Even for the purpose of bail, the law is not to be stretched in favour of the prosecution and any benefit of doubt arising in the case must go to the accused. 1995 SCMR 387, Sikandar A. Karim.

Opportunity to defend the case. As a presumable innocent person the accused is entitled to every freedom and every opportunity to look after his case. An accused person, if he enjoys freedom will be in a much better position to look after his case and property deed himself than if he were in custody. 32 Cr.LJ 1271 Hutchison v. Crown. However, no such rule exists as regards serious non-bailable offences which are punishable with death or transportation for life. (FB) 33 Cr.LJ 94 Doglekar v. Crown.

Matters to be considered for grant of bail:

(1) Whether there are reasonable grounds for believing that the accused has committed the offence.

(2) Nature and gravity of the charge.

(3) Severity of punishment in case of conviction.

(4) Apprehension of abscondence when released on bail.

(5) The character, the means and the standing of the accused.

(6) Danger of witnesses being tampered with.

(7) Opportunity to the petitioner to prepare his defence.

(8) The period for which the petitioner has been in jail and when the trial is likely to conclude.

(9) Whether the petitioner is named in the FIR or his description is given in it.

(10) Time taken in lodging the FIR, whether prompt.

(11) Whether the accused is a previous convict.

(12) Whether reasonable possibility of false implication of the accused/petitioner cannot be ruled out. PLD 1997 Kar. 165, Sajjad Hussain.

Considerations for grant of bail.

(1) Every accused presumed not to be guilty. (2) Process of trial should not be allowed to be defeated. (3) Possibility of commission of further offences to be safeguarded. PLD 1963 Lah. 279 Iqbal.

Factors to be considered at bail stage: In cases of offences, punishable with death, imprisonment for life or imprisonment for ten years: (1) Benefit of reasonable doubt, (2) Identity of the accused, (3) Part allegedly played by the accused in the occurrence, (4) His presence at the spot and question of vicarious liability would be considered at bail stage. PLD 1995 SC 34. Tariq Bashir etc.

While deciding bail application the Court should consider:

(1) Allegations made in the FIR,

(2) Statements made in the FIR,

(3) Other incriminating material against the accused.

(4) Plea raised by the accused.

PLJ 1997 Shariat Court (AJK) 23, Muhammad Sadiq v. Muhammad Arshad.

Discretion of Supreme Court in bail matters: It is not a rule that if High Court has exercised its discretion in granting or refusing bail to a party Supreme Court would not interfere. Any discretion exercised in violation of recognised principles of justice is liable to be set a side. Discretion should not be based on whims, inferences, suspicions and mere allegations. When High Court did not exercise discretion properly because inferences were drawn by enumerating allegations without even prima facie examining facts tentatively, the order was set aside, and bail allowed. PLJ 1995 S.C. 396, Ch. Shujat Hussain 1995 SCMR 1249.

Bail not to be withheld as punishment. Orders on bail applications should not be considered as routine orders; involving as they do the liberty of the citizens. They must be carefully balanced and weighed in the scales of justice. However, strong a suspicion may be, it would not take the place of reasonable grounds. The reasonableness of the ground has to be shown by the prosecution by displaying its cards to the Court. Where grounds exist for further inquiry into the guilt of the accused bail should not be withheld. In order to ascertain whether reasonable grounds exist under section 497 (2), Cr.P.C. the Court has of necessity to look into the material available (e.g.) FIR statements under section 161, Cr.P.C. medico-legal report, recoveries etc. (SC) PLD 1968 349 Abdul Malik v. State.

Heinousness of offence only is not sufficient for refusal of bail. Bail is not to be withheld as punishment. There is no moral or legal compulsion to keep a person in jail. Co-accused already on bail. Bail already granted not cancelled. PLJ 1984 Cr. C (Q) 507. Nasir Mahmood Khan.

Meaning of bail. Bail is release of a person from the custody of police and delivery into the hands of sureties, who undertake to produce him in Court whenever required to do so. (FC) PLD 1953 FC 170 Crown v. Khushi Muhammad.

"Appears" meaning of under sections 496 and 497, Cr.P.C. Word "appears" in sections 496 and 497, Cr.P.C. means appearing in response to a process. Voluntary appearance not included. (SC) PLD 1966 SC 1003 Muhammad Ayub v. Muhammad Yaqub.

Bail means curtailment of liberties, when custody is handed over to his sureties. PLJ 1980 SC 318, Said Mian v. Mian Said.

"Released on bail" and "admitted to bail" are synonymous terms. PLD 1966 SC 1003 Muhammad Ayub.

"Reasons to believe" in sec. 497 Cr.P.C. can be classified at a higher pedestal than mere suspicion and allegation, but not equivalent to proved evidence. Even strongest suspicion cannot be transformed to "Reason to believe". The criteria is that some tangible evidence is available against the accused, which if left unrebutted may lead to inference of guilt. PLJ 1995 SC 396, Ch. Shujat Hussain 1995 SCMR 1249.

Reasonable grounds for bail are grounds which appeal to a reasonable and prudent man. PLD 1995 S.C. 34, Tariq Bashir, etc.

Section 498 subsidiary and ancillary to section 497. Restrictions and proviso in section 497 apply equally to High Court and Sessions Court when dealing with the matter under section 498, Cr.P.C. (S) PLD 1966 SC 1003 Muhammad Ayub v. Muhammad Yaqub. [NP] Solvency of surety only determining factor. Rejection of surety on the grounds of "advance age, saintly and noble" is illegal. 1975 P.Cr.L.J (Kar.) 532 Sajjad Mir.

Sending bail application to police for report. The practice of Magistrates of sending bail applications to police for report or sending any other judicial application to the police for report is absolutely illegal and against all canons of criminal jurisprudence. PLD 1951 Pesh. 12 Qasim v. Crown.

Magistrate not to grant bail after further evidence; when the bail is refused by High Court; without referring the case to the High Court. (SC) 1971 SCMR 374 Muhammad Nawaz v. Sakina.

Petition dismissed by High Court, yet lower Courts can grant bail on new facts, but the lower Courts cannot sit on judgment of the higher Courts. Rule of propriety demands that the case be heard by the judge who refused the earlier bail application. PLD 1976 Lah. 591 Muhammad Akram Buttar v. Ijaz Ahmed etc.

Duty of counsel and client to inform the Court whether any other bail application was made earlier by the petitioner or his co-accused. (DB) PLD 1975 Lah. Abdul Ghafoor.

Early hearing suggested by the Supreme Court instead of bail, pending appeal in the High Court.(SC) 1976 SCMR 134 Wahid Bakhsh.

Early hearing instead of bail. Appellant sentenced to transportation for life. No ground for bail. The appeal, however, ordered to be heard at any early date. Unreported case, Cr. Misc. 1 of 1968 in Cr. Appeal 89 of 1968 Lahore High Court. Arshad Mahmood.

Hearing of the appeal ordered to be expedited instead of bail. Appellants sentenced to transportation for life, bail not granted. However, the Supreme Court ordered. "The High Court is directed to expedite the hearing of this appeal". Unreported case (SC) Cr.P.S.L.A. No. 52 of 1974 Ghulam Mustafa etc. v. State. (Note, On application presented to the Lahore High Court which the above orders of the Supreme Court a learned Judge in Cr.M. 4 of 1974 in Crl. Appeal 536 of 1973 dismissed the application for early hearing with the remarks that the case cannot be heard out of turn.

Bail case presented to High Court Judge on Friday at his house for bail after arrest without the registration of the bail application for offences u/Ss. 419, 420, 465 & 506, PPC. Interim after arrest bail allowed to the petitioner to the satisfaction of the Addl. Registrar High Court. The petitioner was arrested at late hours on Thursday and had already been sufficiently humiliated. PLJ 1989 Cr.C. (Lah.) 562 Shahid Mahmood.

Simply mention of 4 or 5 FIRs does not bring the petitioner within definition of desperate, dangerous or hardened criminal or terrorist. Registration of cases is not sufficient to sustain the opinion that the applicant is criminal of the categories mentioned in the 4th proviso of sec. 497 Cr.P.C. Bail allowed for offence u/S. 17(3) Offences Against Property (Enforcement of Hadd) Ordinance, 1979. PLJ 1996 Cr.P. (Kar.) 1675, Muhammad Aslam.

Observations in bail case by High Court are only of a tentative nature. Trial Court is not to be influenced by it. 1995 SCMR 1242, Mahmood Ahmed.

Direction for expeditious disposal of inquiry proceedings issued by Supreme Court on the prayer of the counsel when bail not granted. (SC) PLD 1974 SC 40 = PLD 1974 SC 83 Iqbal-ur-Rehman.

No limitation for moving bail in the High Court after its rejection by Sessions Court as both the Courts have concurrent jurisdiction in the matter. PLD 1990 Pesh. 118 Muhammad Shafiq etc.

Bail application treated as petition for quashment. As sections 107/117 Cr.P.C. are not offences therefore the question of release of the petitioners on bail does not arise. Petitioners set at liberty. PLJ 1997 Cr.C. (Kar.) 605, Abdul Wahab.

Control of sureties over the accused is not unlimited and it is upto such minimum period which is required for the surety to contract the public authorities to get himself released of the surety bond and to enable the Court to pass such suitable order about the accused. Where a surety for the appearance of a woman took her away and kept her in the house and took no steps for her production in the Court and the woman had to be recovered by the police under a warrant. Held, the surety acted beyond its powers, and was guilty under section 366, Penal Code. (DB) 49 Cr.LJ 1. Chotey Lal.

Mere suspicion against the accused is no ground for withholding bail. Bail allowed. PLJ 1988 SC 304. Hafiz Khuda Bakhsh.

Absence of separate place for detention of juvenile offender entitles him to bail NLR 1986 SC 721 Inam Ullah.

Female accused not to be kept in Dar-ul-Aman till decision of criminal case against her. Bail allowed. NLR 1987 Cr. 763 Mst. Shahnaz Bibi.

Imprisonment in lieu of fine; bail refused when accused not prepared to pay fine. 1982 PSC 526. Mian Khan.

ABETMENT

ABSCONDENCE CASES

Fugitive from law not entitled to bail is only a technicality when the Court holds that there were not reasonable grounds to hold that the accused is guilty of offence, High Court was right in granting bail. Rule that fugitive from law is not to be granted bail is not absolute. 1991 SCMR 322. State v. Malik Mukhtar Ahmed Awan.

Long absence after bail is relevant even after all co-accused are acquitted, for his bail matter. 1985 SCMR 382. Ibrahim v. Hayat Gul etc.

Accused remained absonder for 22 months, bail cancelled. 1985 SCMR 1166. Akhtar Ali v. Azhar Ali Shah.

Abscondence of petitioner disentitles him to bail concession even if case does not fall in prohibitory clause of section 497, Cr.P.C. 1981 SC 93. Rao Qadeer Khan. PLJ 1981 SC 171.

Abscondance unexplained and noticeable disentitles the accused to the concession of bail not withstanding the merits of the case. 1998 SCMR 190, Sher Ali.

Abscondence; principle of refusing bail is not applicable strictly in each and every case. Bail may not be refused to an accused for abscondence if he has no knowledge about the case pending against him in any Court. Similarly, if the case of an accused falls within the ambit of further inquiry the bail becomes his right notwithstanding his abscondence. (PLD 1996 Kar. 372, Abdul Rauf.

Abscondence is not an absolute rule for refusal of bail to an accused when he is otherwise entitled to bail on merits. Bail allowed in case u/S. 302/34 PPC. PLJ 1996 Cr.C. (Pesh.) 1187, Inayat Ullah Khan.

Abscondence of accused no hurdle to his bail, when the principal accused has been admitted to bail. No role of commission of Zina by force or consent attributed to the accused. Bail allowed for offences u/Ss. 402, 471, 467, 468, 420 PPC and u/Ss. 10/11 of Zina Hudood Ordinance 1979. PLJ 1996 Cr.C (Lah.) 1212, Saeed Ahmed etc.

Bail not to be with-held for abscondence of the accused if he otherwise is found entitled to bail. PLD 1996 Kar. 490, Nadeem.

Abscondence does not disentitle accused for grant of bail when the police purposely do not arrest him. Failure of investigating agency to perform its duty cannot be used against the accused. Bail allowed for offences u/Ss. 324, 394/34 PPC. PLJ 1996 Cr.C. (Lah.) 585, Muhammad Afzal.

Abscondence of accused for a pretty long time. Abscondence would however not disentitle an accused to bail when proceedings against him have not concluded even within fifteen months. PLJ 1974 Cr.C. (Lah.) 362 Muhammad Nazeer. Delay of 2 years and 5 months. Bail allowed PLJ 1974 Cr.C. Lah. 366 Allah Ditta.

Absconder's bail, is not to be influenced by the acquittal of co-accused. Each case to be judged on its own merits.(SC) 1978 SCMR 287. Jan Muhammad.

Since co-accused were acquitted is no ground to grant bail to the absconder PLD 1979 Pesh. 16 Sardar.

Absconder and bail. Petitioner accused absconder not in case in hand but in another case. Bail allowed . 1979 P.Cr.LJ 189. Muhammad Rafiq.

When proceedings u/Ss. 87 & 88 Cr.P.C. not taken bail is not to be cancelled on the ground of abscondence. Petition for cancellation of bail dismissed. 1989 SCMR 1987, Khan Mir v. Amal Sharin etc.

Mere abscondence does not disentitle accused to bail when he is detained in jail continuously for over two years and his trial is not concluded. Bail Allowed. 1989 P.Cr.LJ 244, Mubasher Ahmed; 1988 P.Cr.LJ 1598, Wali Muhammad.

Mere abscondence is no bar to grant of bail. Accused 13 years old and case one of further inquiry. Bail allowed. 1992 P.Cr.LJ 392, Kiramat Ullah; 1992 P.Cr.LJ 409 Sher Zaman.

ACCOUNTS CASES AND MONEY INVOLVED

In matter of accounts for offences u/Ss. 420, 406, 408, 409, PPC bail allowed to petitioner to meet the charges and prepare his defence. (DB) NLR 1987 Cr. 845. Khursheed Ahmed.

Large amount embezzled. Offence not being punishable with imprisonment over 10 years, the mere fact that the embezzled amount is large is not ground for refusing bail. 1978 SCMR 64; Ijaz Akhtar. PLJ 1978 SC 431.

Large amount involved in case u/S. 409, PPC read with section 5 (2), Prevention of Corruption Act, 1947, is by itself no ground for refusing bail. Bail allowed. NLR 1983 Cr. 29. Mir Akhtar Khan Khattak.

Cheque forged for Rs. 33,136/- Rs. 23,636 recovered from the petitioner. Petitioner undertaking to deposit Rs. 10,000 with trial Court as security. Bail allowed NLR 1983 Cr. 53 Muhammad Amin.

Accounts cases. In cases involving the taking of accounts it is desirable that the accused should be granted bail so that he may have full opportunity of instructing his counsel as regards the account. 32 Cr.LJ 1175 Ramnarain.

AFFIDAVITS OF P.Ws.

Affidavits of eye-witnesses absolving accused of offence u/S. 302, PPC. Bail allowed. NLR 1987 Cr. 430(2) Shahro.

Affidavits of PWs who had been summoned by the Supreme Court supported by them when questioned, the PWs stated that the accused were innocent. Bail allowed. 1991 SCMR 111. Muhammad Nawaz.

Affidavit by complainant and eye-witnesses exonerating the petitioner, held, made it case of further inquiry. Bail allowed. PLJ 1986 Cr.C. (Kar.) 218. Ali Gul etc.

Affidavit by complainant, father of the deceased, an eye-witness exonerating petitioners. I.O. conducting investigation in mosque which is not warranted by law. Bail allowed. PLJ 1997 Cr.C. (Lah.) 297, Muhammad Saleem etc.

Affidavits by PWs exonerating the accused for offence under Article 12 of Offence of Zina Hudood Ordinance and sec. 377 PPC, held, following Allah Bakhsh v. Nazir Hussain Shah and another; 1979 SCMR 137, the affidavits exonerating the accused make it a case of further inquiry. Bail allowed. PLD 1997 Cr.C. (Lah.) 561, Ashiq Hussain, etc.

Affidavits and bail. Affidavits of eye-witnesses mentioned in the charge-sheet submitted in support of the accused cannot be made a base for granting bail unless all the eye-witnesses swear their affidavits and appear in person in the Court. PLJ 1995 Kar. 185, Muhammad Ayub.

More than 100 affidavits in support of alibi plea for pre-arrest bail, held case of further inquiry. Bail allowed, in case u/S. 307/34, PPC. NLR 1991 Cr. 188. Muhammad Yousaf Sindhu.

Affidavit of eye-witnesses exculpating respondents, finding to such effect unexceptionable, case being of further inquiry bail not cancelled. 1979 SCMR 137 Allah Bakhsh v.Nazar Hussain Shah.

Affidavits of P.Ws. not supporting the prosecution case considered alongwith delay of 2 years 5 months. Bail granted to principal accused in murder case. 1979 P.Cr.LJ 1741 Shafqat Ali.

Affidavits of Pws produced at bail stage, sworn before oath commissioners being ex parte create suspicion and appear to be an attempt to tamper with evidence. However, when it is established that the police investigation is mala fide and the contents of the affidavits are true bail can be allowed by the trial Court. PLJ 1985 Cr.C. (Kar.) 26. Allahdito etc.

Affidavits of eye-witnesses to the effect that they had not seen the occurrence. Bail allowed under section 10 of Zina Hudood Ordinance. NLR 1985 Cr. 28. Muhammad Iqbal. NLR 1988 Cr. 71 Ali Asghar etc. NLR 1988 Cr. 159 Dinu.

Mere filing of affidavits by the advocates would not attract the expression `further inquiry' nor would it amount to two versions. Trial Court to decide the value of affidavits. Bail cancelled. PLD 1990 SC 83. Mst. Bashiran Bibi v. Nisar Ahmed Khan etc.

AGE FACTOR AND FEMALES

Petitioner less than 16 years old and case not covered by prohibition clause of Sec. 497 Cr.P.C. Bail allowed. 1997 SCMR 1381, Ahmed Yar.

Interim bail allowed to the mother of a suckling badly in a murder case. It was held that welfare of minor was incompatible with jail life. Precedent of Holy Prophet Muhammad (peace be upon him) in the case of "ghamidiyyah" was followed. 1996 SCMR 973, Mst. Nusrat.

Petitioner under 16 years is to be normally allowed bail unless there is something exceptional disentitling him to bail. PLJ 1984 Cr.C. (Lah.) 281. Abdul Manan.

Bail of accused under 16 years who fired shots at the deceased, an elderly man, cancelled. Attendant circumstances of the case cannot be lost sight of 1983 SCMR 791. Imam Din v. Muhammad Rafiq.

Boy of 15/16 accused of Committing Zina with a woman of 65 years. FIR delayed by 2 days. Trial not commenced for 7 months. Bail allowed. NLR 1983 Cr. 71. Manzoor Hussain.

Minor child 1« years old sick and could not be treated in jail hospital. Mother's sentence suspended for offence u/S. 302, PPC PLJ 1980 Cr.C.(Lah.) 167 Mst. Zahoor Elahi.

Accused 16 years of age is no ground that his bail should not be cancelled in case of sodomy. Victim 9 years old had no enmity with the accused. Bail cancelled. 1999 SCMR 338 Muhammad Sahrif v. Shafaqat Hussain.

Accused less than 16 years and attributed lalkara only, granted bail in case under section 302/34, PPC PLJ 1974 Cr.C. (Lah.) 520 Ashraf etc.

Age less than 16 years when the crime was committed by the accused. Bail cancelled for offence under section 307, PPC 1975 P.Cr.LJ 1442 Badar-us-Salam v. Muhammad Javid.

Petitioner below 16 years of age, in jail for 7 months for offence u/S. 364-A and 377 PPC, bail allowed. PLJ 1992 Cr.C. (Lah.) 70, Khadim.

Accused 13 years of age at the time of committing Qatli-amd allowed bail. The question of age to be determined at the trial. Held, a case of further inquiry, PLJ 1997 Cr.C. (Lah.) 1613, Mazhar Abbas.

Tender age. School leaving certificate showing age of the accused at the time of occurrence as below 16 years police estimate of age not accepted. Bail allowed. 1983 SCMR 1001, Muhammad Anwar.

Age of accused on X-ray found to be 16-17 years. Held, good ground for bail even in a murder case. (SC) 1970 SCMR 30 Siraj-ud-Din v. Saghir-ud-Din. PLJ 1978 Cr.C. (Lah.) 424. Arshad Mahmood.

Bail cannot be claimed as a matter of right on account of tender age. (SC) PLJ 1978 SC 357. Shahbaz Tufail, 1978 SCMR 235.

Student of intermediate: Law makes no provision of leniency in the matter of bail students. 1975 P.Cr.LJ 1092 Muhammad Iqbal etc.

For appearing in examination and prosecution of studies: Bail granted by the High Court not interfered with by the Supreme Court specially in view of the inordinate delaying the conclusion of the inquiry. (SC) 1975 SCMR 139 Aftab Hussain v. Abdul Muttal.

16 years of age and bail. Merely that the accused is 16 years old or less is no ground for bail when he hacked the victim to death with a hatchet. 1977 P.Cr.LJ 421 Abbas.

Old age: Relevant consideration for grant of bail to an old person is infirmity. No, medical evidence produced in support, of old age of accused. Bail not allowed. (SC) 1977, SCMR 27, Gul Ahmad Masam Khan etc.

70 years old man can well be regarded as an infirm person and his case would fall under sub-section (1) of section 497. Fatal injury also not attributed to him. Bail allowed in murder case. (SC) 1977 SCMR 50. Abdul Jabbar etc.

70 years age of only does not entitle a person to bail when injury to the deceased is attributed to him. (SC) 1977 SCMR 52. Ghulam Hussain.

Old age itself brings infirmity and sensibility and no reasonable grounds existing to believe that the accused was guilty of an offence punishable with death or transportation for life. Bail allowed. 1973 P.Cr.LJ 397 Sakhi Muhammad.

Age 70 and 80. Bail not allowed as the petitioner were neither sick nor infirm. 1979 SCMR 114 Hakim Ali.

85 years of age and no injury attributed to him. Bail allowed in triple murder case. NLR 1982 Cr. 664 Bhdha etc.

Old age by itself coupled with gastritis and lumbago is no ground for grant of bail. (SC) 1970 514 Haji Rahimullah.

Accused 70 years old, allowed bail before arrest in an abduction case. 1976 P.Cr.LJ 337 Jaffar etc. PLJ 1975 Cr.C. (Lah.) 313.

Bail allowed in murder case. PLJ 1975 Cr.C. (Lah.) 36. Sadiq etc.

Disease and age. Petitioner having aortic incompetence and cardiac insufficiency and aged about 70 years. Bail allowed. 1980 P.Cr.LJ 316 Khanu.

Conflict in age certificates. School certificate of age and the Municipal age certificate each giving different date, abducteee refusing to be examined by a radiologist. Held, case fell under section 497(2), Cr.P.C. Bail allowed for offences under sections 363, PPC. PLJ 1976 Lah. 205 Sarfraz Ahmad.

Mother of suckling child of 1« years of age allowed bail in case u/S. 302/34 PPC. Welfare of suckling child demands that the child should not be made to suffer in jail. PLJ 1988 Cr.C. (Lah.) 419, Mst. Nasreen.

Female accused with suckling badly rotting in jail, for offence u/S. 10 of Zina Hudood Ordinance, held her case fell under second proviso to section 497, Cr.P.C. entitling her to be released on her personal bond. Bail allowed on personal bond. NLR 1991 Cr. 276 Zarina.

Bail of female accused u/S. 497, Cr.P.C. proviso (1) to sub-section (1) not to be ignored specially in a case of circumstantial 302, PPC PLJ 1999 Cr.C. (Lah.) 1 Mst. Balqees.

ALIBI PLEA

Plea of alibi in pre-arrest bail application, held, it would be paradoxical to suggest that at the pre-arrest bail application stage plea of alibi taken by the accused cannot be considered any only evidence produced by the prosecution is to be considered. It is imperative for the Court to consider any plea taken by the accused at bail stage alongwith the material produced by the prosecution. PLJ 1997 SC (AJK) 349, Muhammad Younas etc. v. Malik Muhammad Nawaz, etc.

Plea of alibi. Bail can be granted in case of capital charge on plea of alibi if the facts and circumstances of the case no justify. PLD 1998 SC 97, Ajmal Khan v. Liaqat Hayat etc.

Bail allowed in murder case where plea of alibi was raised during inquiry and investigation. Plea found to be reasonable. Accused admitted to bail. PLD 1976 Lah. 190 Muhammad Naqi Butt. PLJ 1976 Lah. 678.

The accused found to have been in police custody since a day before the occurrence. Commitment proceedings also delayed. Bail allowed. (SC) 1975 SCMR 510. Sangi Marmar.

Appellant accused absent from Pakistan on the date of the murder. Held, case fit for the grant of bail. (SC) 1976 SCMR 183 Muhammad Fayyaz Ahmed.

Bail on plea of alibi supported by Passport, PIA tickets and other documents and also supported by ASDPO, granted by High Court upheld by Supreme Court. PLJ 1997 SC 1626, Malik Muhammad Saleheen v. Arshad Siddique etc.

Accused causing no injury and pleading alibi i.e., doing a Patwar course 60/70 Miles away. Bail granted. 1975 P.Cr.LJ 1092 Muhammad Iqbal.

Alibi plea supported by affidavits does not make out a case of further inquiry, for grant of bail in a murder case. Bail cancelled. NLR 1990 Cr. 499. Sultan Mahmood v. Atta Muhammad.

Police Sub-Inspector recommending for the discharge of the petitioner on ground of alibi. The DSP and SP leaving the matter to the Court. The petitioner granted bail PLJ 1974 Cr.C. (Lah.) 287 Muhammad Aslam.

Investigation Officer's opinion regarding innocence of the petitioner and his absence from the place of occurrence made a ground for bail before High Court, High Court refused bail because the plea of alibi is to be examined at trial and not bail stage. Supreme Court upheld the decision of the High Court (SC) PLJ 1974 SC 40 Iqbal-ur-Rehman.

Alibi plea: Report of Investigating Officer showing that alibi plea was not such as to render direct prosecution evidence untrustworthy. Order granting bail on such plea of alibi is not maintainable. PLD 1971 SC 324 Ch. Muhammad Khan v. Sana Ullah.

For bail on peal of Alibi. Accused must produce some cogent evidence which could not reasonably be discarded. Where such evidence was not produced and only subsequent investigation after 5 months of occurrence on defence evidence placed accused in column No. 2 of challan bail was cancelled. PLJ 1998 Cr.C. (Pesh.) 570, Muhammad Sharif v. Inam Ullah etc.

Plea of alibi can be considered at bail stage. In offences u/Ss. 302, 307, 120-B, 170-B/34 PPC plea of alibi was examined tentatively and the prosecution evidence did not lead to inference of guilt, held, a case of further inquiry and no reasonable grounds existed to believe that the applicant was guilty of Scheduled offence. Bail allowed. (DB),ÿPLJ 1992 Cr.C. (Kar.) 369, Manzoor Hussain Wassan.

Pre-arrest bail cannot be granted on plea of alibi PLJ 1975 Cr.C. (Lah.) 25 Maqbool Ahmed.

APPRECIATION OF EVIDENCE TENTATIVE & DETAILED

Provisional or tentative assessment at bail stage is not prohibited. Elaborate or deep assessment of evidence should not be done at bail stage. NLR 1991 Cr. 39. Shah Muhammad Khan etc.

Tentative assessment of evidence to be distinguished form deeper appraisal of evidence. PLJ 1980 Cr.C (Kar.) 142, Ibrahim Rasul.

Appreciation of evidence at bail stage. Question of bail cannot be decided in vacuum, Court has to look at material available when bail is applied for. Court cannot refuse to look at result of medico-legal examination of deceased when available. (SC) NLR 1981 Cr.367, Muhammad Hanif v. Manzoor etc.

Sifting of evidence in minute detail is not to be done at bail stage. PLJ 1979 SC 193 Prof. Muhammad Hanif.

Appreciation of evidence in bail case cannot be done at Leave to Appeal stage in Supreme Court. (SC) 1978 SCMR 435 Muhammad Hussain Contra. (SC) PLJ 1978 SC 327 Khalid Javed Gilan.

Elaborate sifting of evidence at bail stage is not allowed to avoid prejudice to any party. 1988 SCMR 653. Abdul Razzak Mania.

Merits of the prosecution case or defence not to be considered while disposing of bail petition. (SC) PLD 1970 SC 335 Gulzar Hussain v. Ghulam Murtaza, also see (SC) PLJ 1978 SC 327, Khalid Javed Gilan PLD 1978 SC 256.

High Court not to examine the merits of the prosecution case or the plea of defence in finding whether reasonable grounds appear for believing that the accused has been guilty of the offences punishable with death or transportation for life. (SC) PLD 1967 539 Muhammad Aslam. 1968 SCMR 924 Farid v. Ghulam Hussain.

APPROVER'S CASE (Accomplice)

Approver bailed out u/S. 561-A Cr.P.C. because 3« years delay in conclusion of murder trial was due to the inefficiency of the prosecution,. NLR 1984 Cr. 665. Alamdar Hussain.

Approver allowed bail when trial not concluded within 2 years. There is no absolute bar u/S.337(3), Cr.P.C. PLJ 1990 Cr.C. (Pesh.) 428. Khair Afzal.

Approver allowed bail for inordinate delay in trial. Approver under detention for about 7 years, bail allowed. PLJ 1875 Cr. C (Lah.) 421 Muhammad Hanif. Triadelayed, approver in custody for 3 years; bail allowed. 1981 P.Cr.LJ 334, Manzoor Hussain.

BAILABLE OFFENCES

Bail in bailable offences: Remand on failure to furnish surety/bailbond. Held, where remanding the accused to jail on his failure to furnish surety/bail bond the trial Court should consider the propriety of his release on execution of his personal bond and not only on 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. PLD 1995 SC 34,Tariq Bashir etc. Under trial Prisoners, accused of bailable offences; petty offences and offences punishable with less than 10 years should not unnecessarily be detained in jail, and they should have clothes and food privately provided to them. PLD 1995 SC 34, Tariq Bashir etc.

In bailable offence after conviction on filing an appeal the accused is entitled to bail as of right. PLD 1995 Kar. 209, Shah Hussain. PLD 1963 SC 478, Mian Mahmood Ali Qasuri etc. referred.

Person killed by rash and negligent driving. Offence u/S. 320 PPC which is bailable. Bail allowed. PLJ 1997 Cr.C. (Lah.) 186, Ahmed Khan.

Bailable offences. In bailable offences the Magistrate is bound to admit the accused to bail if he can furnish satisfactory bail. 41 Cr.LJ 252 M.A. Aziz v. King.

Under section 496, Cr.P.C., the accused has indefeasible right to grant of bail. (SC) PLD 1963 SC 478 Mian Mahmood Ali Qasuri etc.

BAIL BEFORE ARREST

Bail before arrest. Concurrent jurisdiction. Application for pre-arrest bail should ordinarily be presented before Sessions Judge in first instance. Applicant however not belonging to a place where charged with offence and a number of cases found registered against him. Apprehensions of his being arrested before he could approach Sessions Judge. The High Court entertained the petition. PLD 1973 Lah. 874 Fateh Muhammad. PLD 1973 Lah. 524.

Powers concurrent. The powers of High Court under section 498 are not merely revisional but are concurrent with those of the Court of first instance. (SC) PLD 1953 FC 170 Crown v. Khushi Muhammad.

Bail by High Court of another Province. Non-bailable warrants of arrest issued by A.C. Zhob. Interim bail before arrest granted by Lahore High Court for 15 days. PLJ 1981 Cr.C. (Lah.) 311 Ch. Allah Ditta. 1973 P.Cr.L.J. 661 Muhammad Amin.

Jurisdiction-Bail before arrest. High Court has the jurisdiction to grant bail before arrest to a person residing within its territorial jurisdiction for whom warrant's of arrest are issued by a Court of a different province. 1973 P.Cr.LJ 661 Muhammad Amin (Kar.) 1973 P.Cr.LJ 935 Begum Silvat Sher Ali.

Pre-arrest bail u/S. 5(2), PCA 1947, interim bail granted by Sessions Judge being ex-officio Senior Special Judge for his Sessions Division, he should have disposed of the matter himself on merits instead of directing the petitioner to appeal before Special Judge, Anti-Corruption. High Court remanded the case back to the Sessions Judge to decide the pre-arrest bail on merits. PLD 1990 Pesh. 76. Muhammad Bashir.

Pres-arrest bail for offences u/Ss. 420, 468, 471 PPC allowed as the offence u/S. 420 was bailable. Offences u/Ss. 468, 471 being non-cognizable police was not competent to investigate the case without the formal order of the Magistrate. 1994 P.Cr.LJ 99, M. Siddiqui Subedar.

Bail before arrest. Sessions Court to be moved first. PLD 1963 Lah. 516. Nasir-ud-Din Shah. 1973 P. Cr.LJ 163 Abdul Ghani.

Bail before arrest direct to the High Court and non-surrender of the applicant. Police making appearance of the petitioner before Court impossible and entrance of Court guarded by police. Interim bail granted to the petitioner in absentia (in a murder case under section 364, PPC) in the circumstance of the case. Security ordered to be furnished next day. Sessions Court to be moved first but when petitioner unable to move Sessions Court without being apprehended by the police. Police guarding even High Court entrance. Application directly entertained by High Court and bail granted. 1973 P.Cr.LJ 1032 Abdul Hamid Khan Jatoi.

Pre-arrest bail-application direct to High Court. For offences under section 10/11, Zina Ordinance entertained and bail allowed on the affidavit of alleged abductee that she had married the petitioner while three co-accused granted pre-arrest bail by the Sessions Judge. NLR 1984 Cr. 16 Hassan Raza etc.

Bail before arrest. When High Court can be moved direct i.e. without moving the Sessions Court first and when bail before arrest is to be granted. PLD 1974 Lah. 256 Sh. Zahoor Ahmad.