Supreme Court of Pakistan Reviews Cancellation of Bail Granted on Medical Grounds

2010 S C M R 580
[Supreme Court of Pakistan]
Present: Rahmat Hussain Jafferi and Ghulam Rabbani, JJ
THE STATE/ANTI-NARCOTIC through Director-General Petitioner
Versus
RAFIQ AHMAD CHANNA----Respondent
Criminal Petition No.117-K of 2009, decided on 24th December, 2009.
(Against the order, dated 24-9-2009 of the High Court of Sindh at Karachi passed in
Criminal Bail Application No.1053 of 2009).
(a) Criminal Procedure Code (V of 1898)---
----S. 497---Bail---Points to be considered by Court while dealing with bail

application enumerated.
While granting bail or otherwise, the Court is required to consider the following
facts:---
(a) Whether there is or is not a reasonable ground for believing that the accused has
committed the offence with which he is charged?
(b) Whether the case requires further enquiry into the guilt of commission of non-
bailable offence within the scope of section 497(2), Cr.P.C.?
(c) Whether the accused is minor, woman, sick or infirm person?
(d) The nature and gravity of the charge.
(e) The severity or degree of the punishment which might follow in the circumstances
of the case on conviction.
(f) The danger of the accused absconding if he is released on bail.
(g) The danger of witnesses being tampered with.
(h) the danger of the alleged offence being continued or repeated.
(i) The character, the means and standing of the accused.
(j) An opportunity to the accused to prepare his defence.
(k) The accused has already been in jail for a considerable period and the trial is not
likely to conclude in near future at least.
(l) Bail should never be withheld as a punishment.
(b) Criminal Procedure Code (V of 1898)---
----S. 497(5)---Control of Narcotic Substances Act (XXV of 1997), S.9(b)---

Constitution of Pakistan (1973), Art.185(3)---Possession of narcotic---Cancellation of
bail, refusal of---Cocaine weighing only 120 grams having been secured from the
possession of accused, the offence would fall under S.9(b) of the Control of Narcotic
Substances Act, 1997, entailing -maximum imprisonment for seven years---No
Chemical Analyzer's report about the recovered material was available---Neither any
allegation of abscondence was made against accused, nor any such plea had been
taken in the petition---All the witnesses being officials, prima facie no question of
tampering with the evidence would arise---Accused was not stated to be previously
Page No. 1 of 2
involved in a similar offence---High Court had justly and fairly exercised its
discretion in granting bail to accused---Impugned order had neither violated any
principle for grant of bail, nor the same was patently illegal or erroneous resulting in
miscarriage of justice---Petition for cancellation of bail was dismissed and leave to
appeal was refused accordingly.
State v. Khalid Sharif 2006 SCMR 1265 and Ehsan Akbar v. State 2007 SCMR 482
ref.
(c) Criminal Procedure Code (V of 1898)---
----S. 497(5)---Cancellation of bail---Principles---Considerations for cancellation of

bail are different from those for grant of bail---Bail can be cancelled, if the order on
the face of it is perverse, patently illegal, erroneous, factually incorrect resulting in
miscarriage of justice or has been passed in violation of the principles for grant of
bail.
State v. Khalid Sharif 2006 SCMR 1265 and Ehsan Akbar v. State 2007 SCMR 482
ref.
Syed Ashfaq Hussain Rizvi, Advocate Supreme Court and Abdul Saeed Ghori,
Advocate-on-Record for Petitioner.
Nemo for Respondent.
ORDER
RAHMAT HUSSAIN JAFFERI, J.--- It is alleged that 120 grams of cocaine were
secured from the possession of the respondent. The learned Sessions Judge dismissed
the bail application but the learned High Court granted the same. The petitioner has
filed the present petition for cancellation of bail.
2. We have heard the learned counsel for the petitioner and perused the record. He has
stated that the respondent has criminal background and that recovery of cocaine, which is
dangerous to the life was made from his possession, therefore, he is not entitled to the
concession of bail.
3. After examining the provisions of section 51 of C.N.S. Act, 1997 particularly, subsection
(2) wherein it is provided that if the offence is not punishable with death, the bail should
not in normal circumstances be granted, unless in the opinion of the Court the case is fit for
grant of bail against a substantial amount.
While granting bail or otherwise, the Court is required to consider the following facts:---
a) Whether there is or is not a reasonable ground for believing that the accused has
committed the offence with which he is charged?
b) Whether the case requires further enquiry into the guilt of commission of non-
bailable offence within the scope of section 497(2), Cr.P.C.?
c) Whether the accused is minor, woman, sick or infirm person?
d) The nature and gravity of the charge.
e) The severity or degree of the punishment which might follow in the circumstances
of the case on conviction.
f) The danger of the accused absconding if he is released on bail.
g) The danger of witnesses being tampered with.
h) The danger of the alleged offence being continued or repeated.
i) The character, the means and standing of the accused.

Page No. 2 of 2
j) An opportunity to the accused to prepare his defence.
k) The accused has already been in jail for a considerable period and the trial is not
likely to conclude in near future at least.
l) Bail should never be withheld as a punishment.
5. In this case only 120 grams of cocaine were secured from the possession of the accused
as such the offence would, fall under section 9(b) of C.N.S. Act. The maximum punishment
under the said offence is 7 years. No Chemical Analyzer report has been filed nor the
learned Advocate Supreme Court has been able to show us or in possession of such report
in spite of our demand. There is no allegation of absconsion of the respondent nor such plea
has been taken in the petition. Prima facie there is no question of tampering with the
evidence as all the witnesses are officials. No record of previous involvement of similar
offence committed by the respondent has been produced or alleged in the petition. In such
circumstances, the learned High Court has exercised its discretion justly and fairly in
granting bail.
6. This is a petition for cancellation of bail. It is settled law that considerations for
cancellation of bail are different from the considerations for the grant of bail. The bail can
be cancelled if the order on the face of it is perverse and has been passed in violation of the
principles for grant of bail or it is patently illegal erroneous, factually incorrect and has
resulted in miscarriage of justice. Reference is invited to State v. Khalid Sharif 2006 SCMR
1265 and Ehsan Akbar v. State 2007 SCMR 482.
7. None of the grounds for cancellation of bail are attracted, therefore, the petition is
dismissed. Leave refused.
N.H.Q./S-2/SC Petition dismissed.
Page No. 3 of 2
2010 S C M R 576
Present: Anwar Zaheer Jamali, Khilji Arif Hussain and Rahmat Hussain Jafferi, JJ
DADIO ----Petitioner
Versus
SOBHARO and another----Respondents
Cr.P.L.A. No.108-K of 2009, decided on 29th December, 2009.
(On appeal from order of High Court of Sindh Bench at Sukkur, dated 16-10-2009 passed
in Criminal Miscellaneous Application No.183 of 2008).
----S. 497---Constitution of Pakistan (1973), Art.185(3)---Bail, refusal of---High Court

had earlier granted bail to accused only on medical grounds on the basis of the medical
certificate issued by Medical Officer of the concerned prison---After more than one year
when the accused appeared before High Court in pursuance of an application for
cancellation of his bail, he was found by High Court to be physically fit having been
completely recovered from all the injuries and ailments as shown in the said medical
certificate, which fact was neither disputed nor denied by the accused---Earlier medical
report, thus, by that time had lost its efficacy---Where accused was involved or stated to
be involved in the commission of some heinous crime, not entitled to grant of bail on
merits or had not been admitted to bail on merits, but on medical grounds, such special
concession granted to him would vanish the moment he was found to have recovered
from such injury or ailment, which formed the basis for grant of bail to him on medical
ground and it was found that his judicial custody would be no more detrimental to his
health---Grant of bail to such an accused was not a State bounty in perpetuity, which once
granted could not be withdrawn or cancelled---Accused after his treatment and recovery
had lost the sight to avail the concession of bail on medical ground anymore, as the
purpose of grant of bail to him had been achieved after his recovery---Observations made
by High Court were quite relevant and justified for passing the impugned order
cancelling the bail allowed to accused---Petition was dismissed and leave refused
accordingly.
Muhammad Yousafullah Khan v. State PLD 1995 SC 58 distinguished.
----S. 497(5)---Cancellation of bail granted on medical ground---Principles---Grant of

bail to an accused on medical ground is not a State bounty in perpetuity, which once
granted cannot be withdrawn or cancelled.
Abdul Mujeeb Pirzada, Senior Advocate Supreme Court for Petitioner.
Nemo for Respondents.
Date of hearing: 29th December, 2009.
JUDGMENT
ANWAR ZAHEER JAMALI, J.--- Through this criminal petition petitioners has
sought leave to appeal against the order dated 16-10-2009, passed by learned Single
Judge in Chambers of Sindh High Court at Sukkur Bench, in Criminal Miscellaneous
Application No.183 of 2008, whereby the said criminal miscellaneous application,
under section 497(5), Cr.P.C. filed by the complainant Sobharo, was allowed, and
consequently the order, dated 12-9-2008, granting bail to respondent No.1 on medical
ground was recalled, and he was remanded to judicial custody.
Page No. 1 of 2
2. Mr. Abdul Mujeeb Pirzada, learned Senior Advocate Supreme Court for the
petitioner, making reference to the judgment of this Court in the case of Muhammad
Yousafullah Khan v. State PLD 1995 SC 58, contends that even if the learned Single
Judge, seized of the application for cancellation of bail, against the order, dated 12-9-
2008, was of the opinion that the medical report, earlier relied by the learned Single
Judge for grant of bail to the petitioner, ,was not satisfactory or insufficient for this
purpose, then the proper course available for him was to make reference to some other
Medical Board, instead of forming his own independent opinion, contrary to such
medical report. He further contends that rule of proprietary demanded that instead of
filing an application under section 497(5), Cr.P.C. before the High Court, the
complainant, if aggrieved by the bail granting order, dated 12-9-2008, should have
approached the apex Court for cancellation of bail of the petitioner, rather than moving
such application before the same forum.
3. We have carefully considered the arguments advanced by the learned counsel, and
perused the material placed on record. In the first instance, bare reading of section
497(5), Cr.P.C. shows that jurisdiction to entertain an application for cancellation of bail
is concurrent in nature, therefore, such application was rightly moved before the High
Court, which has earlier granted bail to the petitioner. This being the position, objection
raised by the learned counsel to this effect is without any legal force. Reverting to the
factual aspect of the case, it would be seen that the petitioner was absconding accused in
Crime No.68 of 2008, Police Station Daharki, which was registered on 25-3-2008. He
was arrested on 22-7-2008, seemingly, in injured condition, whereafter his application for
grant of bail on medical ground was rejected by the Court of IIIrd Additional Sessions
Judge, Mirpur Mathelo, vide order, dated 21-8-2008. Later on, before the High Court,
keeping in view his health condition, as seen from the medical report submitted by
Medical Officer, Central Prison-I, Sukkur, he was admitted to bail by High Court only on
medical ground. However, at the time of hearing of application for cancellation of bail,
which took place on 16-10-2009, when the petitioner appeared before the learned Single
Judge of the High Court, about his condition of health the learned Judge observed, and
noted as under: ---
"Contrary to the said certificate, the accused present in Court appears to be a

young man in late twenties or early thirties in excellent health conditions, full of
energy, hail and hearty and from no angle appears to be suffering from any
disease or weakness which fact not only causes serious doubt on the veracity of
the Medical Certificate issued by the Medical Officer, Central Prison-I, Sukkur by
falsifying it and leaves no doubt in mind that such certificate is an arranged one
and obtained solely for the purposes of misrepresenting this Court and
fraudulently obtaining release of the accused on bail."
4. In such circumstances, when the cancellation of bail of the petitioner has been ordered
by learned Judge, after more than one year to the earlier order, looking to the level of his
physical fitness, which is indicative of his complete recovery from all the injuries and
ailment, as shown in the earlier medical report, and not disputed or denied by the
petitioner, it was sufficient to conclude that by that time, earlier medical report has lost its
efficacy. In a case where accused is involved or stated to be involved in the commission
of some heinous crime; not entitled for grant of bail on merits or has not been admitted to
bail on merits, but on medical ground, such special concession to him will vanish the
moment he is found to have recovered from such injury or ailment, which formed basis
for grant of bail to him on medical ground and it is found that his judicial custody will be
no more detrimental to his health. Moreso, as grant of bail to such an accused is not a
State bounty in perpetuity which, once granted, cannot be withdrawn/cancelled.
5. If we examine the case of present petitioner on this principle, the observations of the
learned Single Judge, as noted above, are quite relevant and justified for passing the
impugned order. For this reason, coupled with the reason that earlier too no Medical
Board was constituted by the Court before grant of bail to the petitioner on medical
ground, the case cited by the learned counsel for the petitioner is also distinguishable, and
has no applicability to the facts of this case. It will be further seen that in the instant case,
grant of bail to the petitioner on medical ground was solely looking to his health
condition, as per report of the Medical Officer, Central Prison-I, Sukkur, therefore, after
Page No. 2 of 2
his treatment and recovery, he had lost the right to avail such concession anymore, as the
purpose of grant of bail to him on medical ground was achieved after his recovery.
6. To put it in other words, for considering the question of cancellation of bail under
section 497(5), Cr.P.C. when the accused was earlier admitted to bail solely on medical
ground, if will be his state of health at that point in time when such request is being
considered, which will be material for determining/deciding such question. In the instant
case, this principle has been rightly followed by learned Single Judge, which is
unexceptionable.
7. Keeping in view the above discussion, we do not find any substance in this criminal
petition, which is dismissed and leave refused.
N.H.Q./D-1/SC Leave refuse
Page No. 3 of 2
2009 S C M R 1202
Present: Ijaz-ul-Hassan Khan and Muhammad Qaim Jan Khan, JJ
MUHAMMAD AZHAR----Petitioner
Versus
DILAWAR and another----Respondents
Criminal Petition No.20-P of 2009, decided on 17th April, 2009.
(On appeal from the judgment, dated 26-1-2009 of the Peshawar High Court, Peshawar
passed in Criminal Miscellaneous No.1667 of 2008).
----S. 497(5)---Penal Code (XLV of 1860), S.324---Constitution of Pakistan (1973),

Art.185(3)---Cancellation of bail, refusal of---High Court while granting bail to accused
had assigned sound and valid reasons, which could not be shown to have suffered from
any infirmity or irregularity, legal or factual, warranting interference with the impugned
judgment---Strong and exceptional grounds were required for cancelling bail granted to
accused by a competent Court of law, e.g. whether order granting bail was patently
illegal, erroneous, factually incorrect and had resulted in miscarriage of justice---No
exception could be taken to the conclusion rightly reached by the High Court---Accused
was not shown to have misused the concession of bail and he was entitled to remain on
bail---Leave to appeal was declined to complainant accordingly.
----S. 497(5)---Cancellation of bail---Principle---Considerations for cancellation of bail

are quite distinct from the considerations for grant of bail---Strong and exceptional
grounds are required for cancelling the bail granted to an accused by a competent Court
of law; it is to be seen as to whether order granting bail is patently illegal, erroneous,
factually incorrect and has resulted in miscarriage of justice.
Mir Adam Khan, Advocate-on-Record for Petitioner.
Mian Muhibullah Kakakhel, Advocate Supreme Court and Ms. Tehmina Muhibullah,
Advocate Supreme Court for Respondent No.1.
Hafiz Aman for the State.
Date of hearing: 17th April, 2009.
JUDGMENT
IJAZ-UL-HASSAN KHAN, J.---Muhammad Azhar, petitioner, seeks leave to appeal

from a judgment dated 26-1-2009 of the Peshawar High Court Peshawar, granting bail to
Dilawar, respondent No.1, in case F.I.R. No.981 dated 15-9-2008 registered at Police
Station Tangi, Charsada, under section 324, P.P.C.
2. Facts of the case have been mentioned elaborately in the order dated 2-12-2008 of
learned Additional Sessions Judge as well as in the impugned judgment and in the memo
of petition and need not be reiterated. Suffice is to state that on refusal of grant of bail to
respondent No.1 in the above mentioned case by learned Judicial Magistrate, Tangi,
District Charsadda, vide order dated 17-11-2008, he filed application seeking bail before
learned Additional Sessions Judge, Charsadda, and on its dismissal vide order dated 2-12-
2008, the respondent preferred Criminal Miscellaneous. No.1667 of 2008 before learned
Peshawar High Court, Peshawar, which has been allowed granting bail to the respondent
through the judgment impugned herein.
Page No. 1 of 2
3. Mir Adam Khan, Advocate, appearing for the petitioner argued that learned Judge in
the High Court has discussed merits of the prosecution case in detail and making deep
appraisal of the evidence granted bail to the respondent in complete departure to the
principles governing grant of bail under prohibitory clause of section 497, Cr.P.C.; that
there was sufficient material on the file consisting of ocular account, medical evidence
and motive connecting the respondent with commission of offence; that learned High
Court has not properly evaluated the evidence observing that in the cross case bail has
been granted to the accused and that impugned judgment is perverse, fanciful, shocking
and not sustainable in law.
4. Mian Muhibullah Kakakhel, Advocate, assisted by Hafiz Aman, Advocate, on the other
hand, supported the impugned judgment on all counts and prayed for its sustenance.
5. Having heard learned counsel for the parties and re-examining the material on file, we
feel that submissions of learned counsel for the petitioner do not carry weight. Learned
counsel despite his best efforts could not point out any infirmity or irregularity, legal or
factual, warranting interference with the impugned judgment. Learned High Court while
reaching the conclusion has assigned sound and valid reasonings in last paragraph of the
impugned judgment, which is reproduced hereinbelow for facility sake:---
"There is nothing on the record to show that the petitioner is a previous convict,
habitual or hardened, desperate and dangerous criminal. The accused in the cross-
F.I.R. have already been released. The petitioner is in continuous custody since 9-
11-2008. The investigation in the case is complete and the petitioner is no more
required for further investigation and if he is kept in custody, no useful purpose
would be served."
6. It needs no reiteration that considerations for the grant of bail are quite distinct from
the consideration for cancellation of bail. Once bail has been granted by a competent
Court of law strong and exceptional grounds are required for cancelling the same, as held
by this Court on a number of occasions. It is to be seen as to whether order granting bail
is patently, illegal, erroneous, factually incorrect and has resulted in miscarriage of
justice. Considering the case of the respondent for grant of bail on the above touchstone,
we are of the view that learned High Court has rightly reached the conclusion and no
exception can be taken to it. The respondent is on bail since 26-1-2009 and he is not
shown to have misused the concession of bail. He is entitled to remain on bail.
7. In view of the above, finding no force in this petition, we dismiss the same and refuse
to grant leave.
N.H.Q./M-66/SC Leave refused.
Page No. 2 of 2
2009 S C M R 786
Present: Abdul Hameed Dogar, C.J. Ijaz-ul-Hassan Khan and Ch. Ijaz Yousaf, JJ
Mst. NOOR HABIB----Petitioner
Versus
SALEEM RAZA and others----Respondents
Criminal Petitions Nos.224 and 375 of 2008, decided on 28th January, 2009.
(On appeal from the orders, dated 18-6-2008 and 19-9-2008 of Lahore High Court,
Lahore passed in Criminal Miscellaneous Nos.4132/B and 6169/B of 2008).
----S. 497(5)---Penal Code (XLV of 1860), Ss.302/148/149/109---Bail, cancellation of-

Principles-Considerations for cancellation of bail are quite distinct from the
considerations for grant of bail---Once hail has been granted by a competent Court of
law, strong and exceptional grounds are required for cancelling the same---It has to be
seen as to whether order granting bail is patently illegal, erroneous, factually incorrect
and has resulted in miscarriage of justice.
----S. 497(5)---Penal Code (XLV of 1860), Ss.302/148/149/109--Constitution of Pakistan

(1973), Art.185(3)---Bail, cancellation of---Accused had been specifically named in the
F.I.R. for firing effectively along with others, culminating in the murders of two young
brothers aged 35 years and 32 years---Fifty-two crime-empties had been recovered from
the place of occurrence and large number of fire-arm injuries were found on the persons
of the deceased---Accused having been, prima facie, implicated in the case, there was no
justification for grant of bail to any of them---Pleas desired to be raised by the accused in
their defence could, be raised by them at the trial stage---Bail allowed to accused by High
Court was cancelled in circumstances.
Abdul Ghaffar v. Sakhi Sultan and 3 others 1987 SCMR 1556 and Ehsan Akbar v. The
State and 2 others 2007 SCMR 482 ref.
----S. 497(5)---Penal Code (XLV of 1860), Ss.302/148/149/109---Constitution of

Pakistan (1973), Art.185(3)---Bail, cancellation of---Although accused was one of the
accused persons directly nominated in the F.I.R., yet a role of conspirator was attributed
to him---Main role of firing was assigned to other accused persons---Reasons for granting
bail to accused were not open to any legitimate exception---Petition for cancellation of
bail granted to accused was dismissed in circumstances.
Mazhar Iqbal Sidhu, Advocate Supreme Court for Petitioner.
Masood Chishti, Advocate Supreme Court and Ch. Muhammad Akram, Advocate-on-
Record for Respondents.
Mian Asif Mumtaz, D.P.-G., Punjab Umer Saeed, S.-I. for the State.
Date of hearing: 5th January, 2009.
JUDGMENT
IJAZ-UL-HASSAN KHAN, J.---Both these Petitions bearing Nos.224 and 375 of 2008
have been moved on behalf of Mst. Noor Habib, petitioner, for grant of leave to appeal
Page No. 1 of 2
from the orders dated 18-6-2008 and 19-9-2008 passed by a learned Single Judge of the
Lahore High Court, Lahore, in Criminal Miscellaneous. Nos.4132-B and 6169-B of 2008
whereby bail has been granted to Saleem Raza, Akhtar Islam and Aman Ullah,
respondents, in case F.I.R. No.2 of . 2008, dated 2-1-2008 registered at Police Station
Saddar Sheikhupura, at the instance of Mst. Noor Habib, sister of the deceased, in respect
of offences under sections 302/148/149/109 P. P. C .
2. Facts of the case need not be reiterated as the same have been mentioned
comprehensively in the bail granting order of Additional Sessions Judge, Sheikhupura, as
well in the memos of petitions.
3. Mr. Mazhar Iqbal Sidhu, Advocate, appearing for petitioner, bitterly criticized the
impugned orders of learned High Court and attempted to argue that learned Judge in the
High Court having discussed the merits of the prosecution case in detail and making deep
appraisal of the evidence granted bail to the respondents in complete departure to the
principals governing for grant of bail in non-bailable cases and also in the cases which
fall within prohibitory clause of section 497, Cr.P.C.; that there was sufficient material on
the file consisting of ocular account, medical evidence, recoveries, abscontion and
motive, connecting the respondents with commission of offence; that Saleem Raza and
Akhtar Islam respondents stand directly nominated in the F.I.R lodged without loss of
time for firing indiscriminately along with others, resulting in the murders of Saif Ullah
and Shujat Ullah, sons of Habib Ullah; that in such circumstances, if Saleem Raza and
Akhtar Islam, respondents had raised the plea of `alibi' they should not have been granted
bail when it was open to the trial Court to make necessary probe into that plea and to
come to its own conclusion at the time of the trial; that opinion of the police, finding
Saleem Raza and Akhtar Islam respondents as innocent, is not based upon any cogent,
tangible and reliable material; that the incident took place on 2-1 2008, Saleem Raza and
Akhtar Islam, respondents were arrested on 9-2-2008 and the Investigating Officer
declared their non-participations in the occurrence on 21-2-2008 which indicates that the
investigation has not been carried out honestly; that in a pre-concert and pre-meditated
joint attack specification of injuries to the accused, do not matter particularly at bail stage
and that prima facie sufficient evidence and material was available on the file connecting
the respondents with commission of the crime.
4. Adverting to the case of Aman Ullah respondent in Criminal Petition No.375 of 2008,
learned counsel for the petitioner contended that though effective role of firing in the
occurrence is attributed to Saleem Raza and Akhtar Islam respondents but Amanullah
respondent is a mastermind behind the entire incident and he has hatched the conspiracy
against the deceased, thus the concession of bail should not have been extended to him.
5. Mr. Masood Chishti, Advocate, for the respondents and Mian Asif Mumtaz, Deputy
Prosecutor-General, Punjab representing the State, on the contrary, refuted the arguments
of learned counsel for the petitioner and supported the impugned orders on all counts,
maintaining that the High Court made a tentative assessment of the evidence and formed
an opinion that in the given facts the question of guilt or innocence of the respondents
would need further probe and having found it a case falling within the ambit of
subsection (2) of section 497, Cr.P.C. granted bail to the respondents rightly.
6. We have considered the arguments of learned counsel for the parties at considerable
length. We have also seen the record with their able assistance.
7. It needs no reiteration that the considerations for the grant of bail are quite distinct
from the considerations for the cancellation of bail. Once bail has been granted by a
competent Court of law strong and exceptional grounds are required for cancelling the
same as held by this Court on a number of occasions. It is to be seen as to whether order
granting bail is patently, illegal, erroneous, factually incorrect and has resulted in
miscarriage of justice. Considering the case of respondents for grant of bail on the above
touchstone, we are of the view that learned High Court was not at all justified in
extending benefit of grant of bail to Saleem Raza and Akhtar Islam respondents. Both the
respondents have been specifically named in the F.I.R for firing effectively along with
others, culminating in the murders of two young brothers, aged 35 years and 32 years
respectively. Fifty-two crimes empties have been recovered from the place of occurrence
and large number of fire-arm injuries are found on the persons of the deceased. In such
Page No. 2 of 2
circumstances when they all had been prima facie implicated, there was no justification
for the grant of bail to any of them. Learned counsel for the petitioner rightly contended
that whatever pleas they desire to raise in their defence, could be raised at the trial stage.
Abdul Ghaffar v. Sakhi Sultan and 3 others 1987 SCMR 1556 and Ehsan Akbar v. The
State and 2 others 2007 SCMR 482.
8. The result is that we convert Criminal Petition No.224 of 2008 into appeal, accept the
same and cancel the bail granted to Saleem Raza and Akhtar Islam, respondents by the
learned Single Judge of the Lahore High Court, Lahore. So far as the case of Amanullah
respondent is concerned, we find that though he is one of the accused persons directly
nominated in the F.I.R. but a role of conspirator is attributed to him. The main role of
firing is assigned to Saleem Raza and Akhtar Islam respondents and others. Bail has been
granted to him for reasons which are not open to legitimate exception. Resultantly,
Criminal Petition No.375 of 2008 to the extent of Aman Ullah respondent, is dismissed
and leave to appeal refused.
9. Needless to add here that observations made above, are tentative in nature and relate to
the order in hand only.
N.H.Q./N-10/SC Order accordingly.
Page No. 3 of 2
2006 SC MR 1265
Present: Iftikhar Muhammad Chaudhry, C.J. Mian Shakirullah Jan and Syed
Jamshed Ali, JJ
THE STATE through Force Commander, Anti-Narcotics Force, Rawalpindi----

Petitioner
Versus
KHALID SHARIF----Respondent
Criminal Petition No.397 of 2005, decided on 10th April, 2006.
(On appeal from the judgment/order, dated 31-10-2005 passed by Lahore High Court,
Rawalpindi Bench, Rawalpindi in Criminal Miscellaneous No.1031/B of 2005).
----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c), 14 & 15---
Bail---Bail applications are to be disposed of on the basis of material available on the
record and the Court is required to form a tentative assessment of the evidence available
on record.
Behram Khan v. Nasir Ahmad Bacha PLD 1986 SC 118 ref.
----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c), 14 & 15---
Bail---Affidavits of witnesses exonerating accused after having provided incriminating
evidence involving the accused in the offence at investigation stage---Effect---Cases of
accused persons, who were involved in the commission of drug trafficking etc., are to be
considered carefully by the Court---Witnesses, in the present case, at the time of
investigation of the case had furnished incriminating evidence to prima facie conclude
that the accused was involved in the commission of offence, falling within the mischief of
S.9(c) of the Narcotic Substances Act, 1997---Accused persons, particularly involved in
narcotics cases, faced no difficulty in obtaining affidavit from the witnesses, resiling from
their previous statements, therefore, while considering the same the Court was required to
see facts of each case in its peculiar perspective to ascertain as to whether the accused
was involved in the commission of offence or not---Evidence of the witnesses recorded
by the police, could not be kept out of consideration on the basis of the affidavits---Order
of High Court granting bail to the accused was set aside by the Supreme Court in
circumstances.
Munawar Hussain v. The State 1993 SCMR 785; Ajmal Khan v. Liaqat Hayat
PLD 1998 SC 97; Muhammad Jahangir Badar v. State PLD 2003 SC 525; Gulzar Hassan
v. Ghulam Murtaza PLD 1970 SC 335; Tariq Bashir v. State PLD 1995 SC 34; Razi Khan
v. Muhammad Mushtaq 1996 SCMR 984 and Muzaffar Iqbal v. Muhammad Imran Aziz
2004 SCMR 231 ref.
----S. 497---Bail---Court is empowered to cancel the bail if the order on the face of it is
perverse and has been passed in violation of the principles for grant or cancellation of
bail---Practice of making out a "case of further inquiry" by the Court in a vague manner,
to make out a case for grant of bail was deprecated by the Supreme Court.
Gulzar Hassan v. Ghulam Murtaza PLD 1970 SC 335 ref.
Ajmal Khan v. Liaqat Hayat PLD 1998 SC 97 and Muhammad Jahangir Badar v.
State PLD 2003 SC 525 distinguished.
Page No. 1 of 2
(d) Criminal Procedure Code (V of 1898)---
----S. 497---Bail---Court is not called upon at the stage of bail to conduct anything in the
nature of preliminary trial to consider the probability of an accused to guilt or innocence,
though it is necessary to ascertain as to whether there exits any reasonable ground upon
which its belief can be founded that he had been guilty of such an offence.
Gulzar Hassan v. Ghulam Murtaza PLD 1970 SC 335 ref.
Muhammad Jahangir Badar v. State PLD 2003 SC 525 distinguished.
(e) Criminal Procedure Code (V of 1898)---
----S. 497---Bail---Where the charge had been framed, High Court may have directed for
completion of trial by adopting certain modalities.
Muhammad Munir Peracha, Advocate Supreme Court and Ejaz Muhammad

Khan, Advocate-on-Record for Petitioner.
Malik Rabnawaz Noon, Advocate Supreme Court and Ch. Arshad Ali, Advocate-
on-Record for Respondent.
Date of hearing: 10th April, 2006.
ORDER
IFTIKHAR MUHAMMAD CHAUDHRY, C.J.--- Petitioner has challenged the order,

dated 31st October, 2005, passed by Lahore High Court, Rawalpindi Bench, Rawalpindi
whereby respondent, being an accused under sections 9(c), 14 and 15 of the Control of
Narcotic Substances Act, 1997 (hereinafter referred to as "the Act, 1997") has been
granted bail, therefore, instant petition for cancellation of bail has been filed.
2. Facts, giving rise to instant proceedings, are that respondent is the owner of
Muslim Hotel, I&T Centre, G-10, Islamabad (hereinafter referred to as "the Hotel"). On
20th July, 2005 at 10-00 p.m. Shehzad Ali Kavish, Inspector, A.N.F. Rawalpindi, in
pursuance of spy information about concealment of narcotics in different rooms of the
Hotel, statedly meant for sale to foreigners, conducted raid in Hotel's rooms including the
Room No.102. Its lock was opened and 1 Kg. of heroin and 2 Kgs. Charas, concealed in
special designed cavities were recovered therefrom. Similarly, from Rooms Nos.103,
104, 105 and 115, narcotics of different quantity, were recovered. The rooms were
occupied by foreign nationals as such they were also arrested. According to investigation
respondent had earmarked Room No.102 for his exclusive use. The samples of the
recovered narcotics from Room No.102 were prepared for the report of Chemical
Analyzer. Later on, respondent was arrested. During investigation, statements of co-
accused Raja Muhammad Nawaz and one Malik Najeebullah, being responsible to look
after the accounts of the Hotel were recorded. It is stated that Malik Najeebullah is related
to respondent being his maternal-uncle. P.Ws. Zaheer Ahmed and Ijaz Muhammad,
waiters of the Hotel, were also examined. They supported the prosecution case and
charged the respondent for the commission of the offence. The trial Court declined to
release respondent on bail. However, concession of bail was extended to him by the
learned High Court vide impugned judgment. As such present petition has been filed for
cancellation of the bail.
3. Learned counsel for the State contended that:
(i) Admittedly business of Hotel was being run by respondent through employees,
as he himself is in the Government Service, therefore, he had obtained licence in
the name of Malik Najeebullah.
(ii) P.Ws. Zaheer Ahmed and Ijaz Muhammad, in their statements, before the
police, recorded on 22nd July, 2005 furnished strong incriminating evidence to
substantiate that narcotics were kept in Room No.102 by the respondent.
Page No. 2 of 2
(iii) Sentence under section 9(c) of the Act, 1997, is death or imprisonment for
life, therefore, he was not entitled for grant of' bail.
4. On the other hand learned counsel appearing for respondent stated that:
(a) Though the respondent is the owner of the Hotel but he has no physical control
over it as Malik Najeebullah, his maternal-uncle, on whose name professional
licence was issued by the Excise Department, used to run it.
(b) P.Ws. Zaheer Ahmed and Ijaz Muhammad has resiled from their statements,
given to Investigating Officer, as they furnished affidavit dated 31st October,
2005, filed during pendency of the application of respondent for grant of bail in
the High Court, which was instituted on 17th September, 2005.
(c) Raja Muhammad Nawaz being co-accused legally is not capable to furnish
incriminating evidence against the respondent.
(d) Malik Najeebullah was running the Hotel, therefore, respondent cannot be
held responsible for the commission of offence, if any committed.
(e) The prosecution version that Room No.102 was in the exclusive use of
respondent is incorrect because according to the register of booking of rooms, this
room had been let out from time to time.
(f) The trial of the case is about to commence, therefore, cancellation of bail of
respondent will not advance the cause of justice.
(g) The superior Courts, ordinarily, had declined to cancel the bail of an accused,
unless the order of the High Court is not found perverse or otherwise in the eye of
law.
5. We have heard parties counsel at length and have also gone through the
relevant record so made available before us. It is an admitted fact that respondent is the
owner of the Hotel. He is in the employment of the Government and business of hotel
was being run by him through one Malik Najeebullah as the licence was obtained by him
on his name from the Excise Department, but said person had left the job as it is pointed
out by the learned counsel appearing for him who had read the affidavit filed by him,
which was in possession of learned counsel. According to him he was arrested by the
police, initially in the case but to prove his innocence, he prepared this affidavit.
6. It is noteworthy that in the affidavit in unambiguous terms, Malik Najeebullah

maintained that he left the job eight months back. Thus, no evidence is available on
record to infer that the Hotel was not being run by the respondent himself. Record further
reveals that keys of Room No.102 of the Hotel were obtained by Investigating Agency
from the counter and opened in presence of witnesses as per recovery memos. It is
important to note that on search of Room No.102, narcotics were found lying in special
designed cavities. As far as the guests or employees of the Hotel are concerned, they are
not supposed to make such cavities as built-in cavities could be made at the time of
construction of the Hotel or later on, by no one else, except the owner of the Hotel, or
with his permission.
7. So far as the statements of two witnesses i.e. Zaheer Ahmed and Ijaz Ahmad
are concerned, they are very important. Both the witnesses got recorded their statements
on 22nd July, 2005 i.e. two days from the date of registration of the case. A careful
perusal of these statements reveals that they had fully substantiated the prosecution case.
It is important to note that they remained strict to their stand till the disposal of the
request of the petitioner for grant of bail, but after his submission of bail application
before the High Court on 17th September, 2005, affidavits, denying earlier stand, were
managed by the defence and were filed on 31st October; 2005. In affidavits, they have
resiled from their stand earlier taken by them before the Investigating Agency. The
learned High Court had believed their changed stance as it is evident from the following
para. of the judgment:
Page No. 3 of 2
"(7) Khalid Aziz, Manager of the Hotel, Najeeb Awan, Accountant, Zubair Ahmad
and Muhammad Ejaz both waiters recorded their statements under section 161,
Cr.P.C. with an inordinate delay. However, all the witnesses executed an affidavit
exonerating the petitioner from the commission of the crime. In this view, the
prosecution is in possession of a solitary statement of Muhammad Nawaz, a co-
accused of the petitioner. The case of the petitioner, thus, is open to further
inquiry into his guilt."
8. Learned counsel for respondent stated that affidavit of a witness can be

considered at the bail stage to ascertain as to whether the accused has made out a case or
not. In this behalf he has relied upon the case of Muhammad Hayat v. The State 1988
SCMR 474. In this case affidavit of two witnesses were accepted for granting bail, in
view of the peculiar facts and circumstances of the case noted therein. Similarly, he relied
upon Muhammad Nawaz v. The State 1991 SCMR 111, wherein- a person who has
furnished the affidavit appeared before the Court and affirmed to the contents of the
affidavit. Later on this Court examined this aspect in the case of Naseer Ahmed v. The
State PLD 1997 SC 347, wherein following observations were made about affidavit of a
witness, to create a doubt in prosecution case:--
"Be that as it may, we do not propose to make any comments with regard to the
statements of these two witnesses mentioned above for the reason that they would
still be examined in the trial Court as witnesses where they would be subjected to
cross-examination but this fact alone is not enough to falsify other material on the
record, i.e. statements of four injured eye-witnesses implicating the petitioner, the
motive alleged against him, absconsion, recovery of five empties of pistol of .30
bore from the spot before the recovery of pistol from the petitioner and the
positive report of the Ballistic Expert. At the time of hearing of bail application
Court is supposed to do tentative assessment of the material available on the
record, which is different from final appraisement and evaluation of evidence
which is to be done by the trial Court which was to record evidence of witnesses.
A trend has developed now-a-days that eye-witnesses sometimes take a
somersault and give statements which are different from prosecution case and
sometimes file affidavits also at the stage of hearing of bail application of accused
persons with intention of creating doubt in the case of prosecution to enable the
accused to get bail. The Courts have to be very careful in such cases and see that
bail applications are disposed of strictly according to law on merits keeping in
view the distinction between tentative assessment and actual evaluation of
evidence by the trial Court. It is the mind of the Court which is to be satisfied
where about-turn of some of eye-witnesses in the manner stated above shakes up
the whole prosecution case from the point of view of credibility of the remaining
material. In that respect each is to be decided on its own merits. In the instant case
we are of the view that there is sufficient material on the record which satisfies the
mind of the Court to the effect that it is case of not only Lalkara but the petitioner
had come armed with a pistol and had fired and the motive is mentioned in the
F.I.R. against him and there is positive report of the Ballistic Expert that the five
crimes/ empties were fired from the pistol which was recovered from the
petitioner and the fact that he was arrested after a delay of twenty-three days."
9. It is important to note that in this case earlier two judgments referred to

hereinabove were not discussed but with due deference to the view taken therein, we may
point out that this Court had time and again stated that the bail applications are to be
disposed of on the basis of material available on record as the Court is required to form a
tentative assessment of the evidence available on record, as it has been held in Behram
Khan v. Nasir Ahmad Bacha PLD 1986 SC 118.
10. It may be noted that the cases of accused persons, who are involved in the
commission of drug trafficking, etc. are to be considered carefully, in view of the fact that
the menace of the drugs is creating havoc for the society and the Courts in such-like cases
may have not granted relief for technical reasons. If the Court is satisfied that the
sufficient material is available on record, then no hesitation should be felt in declining
relief to them. Reference in this behalf can be made to Munawar Hussain v. The State
1993 SCMR 785. It may also be noted that accused persons, particularly involved in
Page No. 4 of 2
narcotics cases, faced no difficulty in obtaining affidavit from the witnesses, resiling from
their previous statements, therefore, while considering the same the Court is required to
see facts of each case in its peculiar perspective to ascertain as to whether the accused is
involved in the commission of offence or not? Both the witnesses Zaheer Ahmed and Ijaz
Muhammad at the time of investigation of the case furnished incriminating evidence to,
prima facie, conclude that respondent is involved in the commission of offence, falling
within the mischief of section 9(c) of the Act, 1997.
11. Learned counsel for respondent contended that once the bail is granted, it is
not to be cancelled unless the prosecution alleges that the concession of bail has been
abused by the accused.
In this behalf he relied upon Ajmal Khan v. Liaqat Hayat PLD 1998 SC 97,
wherein it has been held that Supreme Court, normally does not interfere with the order
of the Court regarding bail in cases in which either the challan has been put in the
Court .and the trial is likely to commence shortly or the trial has begun. He also relied
upon Muhammad Jahangir Badar v. State PLD 2003 SC 525. In this judgment it has been
held that if the trial of the case had commenced, then, instead of releasing the accused on
bail, direction be made for expeditious disposal of the. case by adopting certain
modalities to ensure that the accused was not detained further for indefinite period.
12. We have examined both the principles discussed in these cases. In our
considered opinion, the principles enunciated therein are not applicable on the facts of the
case in hand for the reason that the Court is empowered to cancel the bail if the order on
the face of it is perverse and has been passed in violation of the principles laid down for
grant or cancellation of bail. Essentially in instant case, learned High Court, despite
evidence, available on record, had conducted further inquiry in a vague manner, to make
out a case for grant of bail. This practice has been prohibited by this Court. Reference in
this behalf can be made to Gulzar Hassan v. Ghulam Murtaza PLD 1970 SC 335,
wherein, on the basis of the judgment in the case of Farid v. Ghulam Hussain and others
1969 SCMR 924, held that "the Court is not called upon at the stage of bail to conduct
anything in the nature of preliminary trial to consider the probability of an accused to
guilt or innocence, though it is necessary to ascertain as to whether there exists any
reasonable ground upon which its belief can be founded that he had been guilty of such
an offence". As it has been pointed out hereinabove that the affidavits were obtained from
both the witnesses on 31st October, 2005, after filing of application by the respondent for
grant of bail before the High Court on 17th September, 2005 and learned High Court on
having believed the same, granted bail to the respondent. As far as the judgment in the
case of Muhammad Jahangir Badar (ibid), relied upon by the learned counsel is
concerned, it is not helpful to him because in that case bail was not granted to the accused
but the time was fixed for conclusion of the trial. In instant case as well, the charge has
been framed and in such-like situation, learned High Court may have directed for
completion of trial by adopting certain modalities.
13. Learned counsel also relied upon Tariq Bashir v. State PLD 1995 SC 34, to
canvass that when once bail has been granted then strong and exceptional grounds would
be required for the cancellation thereof. He also relied upon Razi Khan-v. Muhammad
Mushtaq 1996 SCMR 984. In this case leave to appeal was refused while holding that the
Court of competent jurisdiction in its discretion had allowed bail to respondent No.1; the
reasons given by the learned High Court that the discretion exercised by Sessions Court
in allowing bail to accused were supported by the evidence and circumstances appearing
in the case; accused was not named in the F.I.R.; consideration for the grant of bail and
cancellation thereof being altogether different. Apparently the facts of the case in hand
are altogether different from the facts of the case relied upon by the learned counsel.
14. Learned counsel also relied upon Muzaffar Iqbal v. Muhammad Imran Aziz
2004 SCMR 231. In this case a very important principle has been highlighted namely
"the discretion is left to the Court under section 497(5), Cr.P.C. which is 'pari materia'
with the principles which apply to the setting aside of the order of acquittal". There is no
cavil with the proposition discussed therein. Applying this principle on the case in hand,
it can safely be held that as the evidence of both the P.Ws. Zaheer Ahmed and Ijaz
Muhammad, recorded by the police, cannot be kept out of consideration, on the basis of
affidavits filed by them, subsequently, when the matter was pending before the High
Page No. 5 of 2
Court, therefore, their evidence could have been kept out of consideration, as in acquittal
cases, if some important evidence is not discussed or kept out of consideration,
interference is called for by the Appellate Court. Reference in this behalf may be made to
Ghulam Sikandar v. Mamaraz Khan PLD 1985 SC 11.
15. Learned counsel also relied upon Suba Khan v. Muhammad Ajmal 2006
SCMR 66. In this case as well the same principle, which has been highlighted
hereinbefore has been reiterated, therefore, judgment needs not to be discussed.
16. On the basis of material, whatsoever, has been brought on record, prima facie,
we are of the opinion that it was a case in which learned High Court may have not
exercised discretion in favour of respondent for the purpose of granting bail to him under
section 497(2), Cr.P.C. as such the order, being contrary to recognized principles of law G
for the grant of bail, deserved to be set aside.
17. Thus, for the foregoing reasons, petition is converted into appeal and allowed,
impugned order, dated 31st October, 2005 passed by Lahore High Court, Rawalpindi
Bench, Rawalpindi in Criminal Miscellaneous No.1031/B of 2005 is set aside, as a result
whereof bail granted to respondent Khalid Sharif is cancelled. He is directed through
surety to surrender immediately, failing which surety bond shall be forfeited by the trial
Court in accordance with law.
M.B.A./S-38/SC Appeal allowed.
Page No. 6 of 2
P L D 2005 Supreme Court 364
Present: Iftikhar Muhammad Chaudhry, Faqir Muhammad Khokhar and M. Javed

Buttar, JJ
THE STATE---Petitioner
versus
Haji KABEER KHAN---Respondent
Civil Petitions Nos. 99-L and 100-L of 2003, decided on 25th February, 2005.
(On appeal against the order dated 18-12-2002 passed by the Lahore High Court, Lahore
in Writ Petitions Nos. 20213 and 20214 of 2002).
(a) National Accountability Ordinance (XVIII of 1999)---
----S. 9(a)(b)---Criminal Procedure Code (V of 1898), S.497(5)--Constitution of Pakistan

(1973), Art.185(3)---Bail, cancellation of--Grant of post-arrest bail to accused on medical
ground by High Court--Validity---Accused had never gone to jail, but had been receiving
treatment in renowned hospital of the country as indoor patient, where he had gone
through Coronary Bypass Surgery etc. and was on medications---Accused, while
remaining in hospital, had never requested for grant of bail as he was quite satisfied with
treatment being offered to him---Accused while getting proper treatment in hospital or
jail would not be entitled for grant of bail---Report called for by Supreme Court from
Medical Board of concerned Institute showed that health of accused was
improving---Bail of accused was cancelled by Supreme Court in circumstances.
Mian Manzoor Ahmad Watto v. The State 2000 SCMR 107; Ch. Zulfiqar Ali v. The State
PLD 2002 SC 546 and Muhammad Saeed Mehdi v. The State and 2 others 2002 SCMR
282 ref.
Haji Rahimullah v. The State and another 1970 SCMR 514; Malik Muhammad
Yousafullah Khan v. The State and another PLD 1995 SC 58; Muhammad Arshad v. The
State 1997 SCMR 1275; Muhammad Aslam Bajwa v. The State PLD 2004 SC 780;
Shahabzuddin Chaudhry and another v. The State PLD 2004 SC 785 and Zarin Khan v.
The State 1980 SCMR 305 fol.
----S. 497(1)---Bail on medical ground, grant of---Scope---Accused would not be entitled

to grant of bail, if he was getting proper treatment either in hospital or in jail---Principles
stated.
If the ailment with which the accused is suffering is not being properly treated while in
custody in jail, then his case on medical ground can be examined.
If accused is suffering from ailments, but is already in hospital; where he is getting the
treatment according to his own choice, then his case will not fall within the exceptions of
S.497(1),, proviso, Cr.P.C.
If accused has been getting proper treatment in hospital or jail, he would not be entitled to
grant of bail.
Haji Rahimullah v. The State and another 1970 SCMR 514; Malik Muhammad
Yousafullah Khan v. The State and another PLD 1995 SC 58; Muhammad Arshad v. The
State, 1997 SCMR 1275; Muhammad Aslam Bajwa v. The State PLD 2004 SC 780;
Shahabzuddin Chaudhry and another v. The State PLD 2004 SC 785 and Zarin Khan v.
The State 1980 SCMR 305 fol.
(c) Criminal trial---
Page No. 1 of 2
---- In criminal administration of justice, each case has to be decided on its own facts and
circumstances and Courts are required to exercise jurisdiction independently.
(d) Criminal Procedure Code (V of 1898)---
----S. 497(1)(5)---Bail on-medical ground---Grant/cancellation of bail, application

for---Medical report, calling for---Scope---Court in the interest of justice, during
pendency of such application, could call for report from Medical Institute having
specialization in diseases with which accused was allegedly suffering.
(e) Criminal Procedure Code (V of 1898)---
----S. 497(1)(5)---Bail on medical ground, grant of---Criteria---Right of prosecution to

seek cancellation of bail after improvement of health of accused---Principles stated.
The Courts are not required to qualify or quantify the nature of disease and once a case is
made out under, the recognized principle laid down by Supreme Court in this behalf, bail
is to be granted on medical ground leaving prosecution at liberty to move the Court for
cancellation of bail, if health of accused has improved during pendency of proceedings,
because on the ground of sickness or infirmity, on exceptional term, law has offered an
opportunity to an accused to enjoy the concession of bail subject to satisfying the Court
about the nature of his ailment as well as on the ground of non-getting of proper
treatment in jail, but no sooner the accused has improved his health, the prosecution can
come forward with the request of withdraw the concession of bail.
(f) National Accountability Ordinance (XVIII of 1999)---
----S. 9(b)---Pre-arrest bail, grant of---Jurisdiction of High Court--Scope---No provision

existed in National Accountability Ordinance, 1999 for grant of pre-arrest bail to
accused---High Court would exercise its power sparingly in rare and exceptional
circumstances for valid reasons to be recorded in writing.
Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division and
others PLD 2001 SC 607; Meeran Bux.v. The State PLJ 1986 (sic) 526 and Murad Khan
v. Fazal-e-Subhan and another PLD 1983 SC 82 rel.
(g) National Accountability Ordinance (XVIII of 1999)---
----S. 9(b)---Constitution of Pakistan (1973), Arts. 185(3) & 199---Grant of pre-arrest bail
to accused by High Court---Validity---High Court had not recorded reasons indicating
exceptional circumstances for exercising extraordinary Constitutional jurisdiction in
favour of accused, particularly when he had not been arrested in the case and had not
attributed mala fides to prosecution in bail application---Bail of accused was cancelled by
Supreme Court in circumstances.
Arfan Qadir, PG NAB and Faiz-ur-Rehman, Advocate-on-Record for Petitioner.
Abid Hassan Minto, Senior Advocate Supreme Court for Respondent.
Date of hearing: 25th February, 2005
JUDGMENT
IFTIKHAR MUHAMMAD CHAUDHRY, J.---The State through Prosecutor General

NAB has sought leave to appeal against the order dated 18th December, 2002 passed by
Lahore High Court, Lahore whereby on accepting Writ Petition No.20213 of 2002, relief
of bail was extended to respondent No. l on medical ground. Operative para. From the
order reads as under thus:-;
"After going through the medical report and medical history of the petitioner we
are of the view that the detention of the petitioner in jail is hazardous to his life
and the treatment which he needs off and on for his ailment cannot be provided
within the jail premises and as per dictum laid down by the Hon'ble Supreme
Page No. 2 of 2
Court in 2000 SCMR 107 titled "Mian Manzoor Ahmed Wattoo v. The State", the
object of criminal prosecution was not to punish the accused for the offence
alleged against him but to make him face the trial and answer the criminal charge
against him, we without dilating upon the merits of the case admit the petitioner
to bail subject to his furnishing bail bonds in the sum of Rs.10,00,00,000 (ten
crore) with two sureties each in the like amount to the satisfaction of the trial
Court."
2. Precisely stating facts of the case are that respondent was convicted/sentenced under
Reference No.5 of 2000 in the month of April, 2000 by the Accountability Court No. l in
Peshawar. It seems that at the time of conviction/sentence he was admitted at Ayub
Teaching Hospital, Abbottabad for medical treatment. The order of conviction/sentence
could not attain finality as in appeal, learned Peshawar High Court on setting aside it,
remanded the case to the Accountability Court for its disposal. Against which respondent
filed petition for leave to appeal before this Court which was accepted and case was sent
back to the Peshawar High Court with the direction to decide the case itself on the basis
of the record. Meanwhile on 24th July, 2002 the Chairman, NAB submitted Reference
No. 16 of 2002 against the respondent and six others. Statedly respondent was formally
arrested in this case, therefore, apprehending that he might not be released after disposal
of his appeal pending on the tile of learned Peshawar High Court, he submitted Writ
Petition No.20213 of 2002 for his release on bail.
Similarly the Chairman NAB also filed another Reference bearing No.38 of 2002 dated,
9th August, 2002 in which he was not formally arrested. Thus apprehending his arrest in
this case as well he preferred Writ Petition No.20214 of 2002 for bail before arrest which
has been allowed vide order dated 18th December, 2002. Operative para. therefrom for
convenience is reproduced hereinbelow:-
"For the reasons recorded in connected petition Writ Petition No.20213 of 2002
the petitioner is also admitted to bail on the ground of ailment in this case as well
subject to his furnishing bail bonds in the sum of Rs.10,00,00,000 (ten crore) with
two sureties each in the like amount to the satisfaction of the trial Court."
3. Learned Prosecutor-General contended that learned Division Bench of the High Court
had fallen in error in granting bail to respondent on medical ground; firstly for the
reasons that he has spent most period of his detention in hospital i.e. District
Headquarters, Haripur, Ayub Teaching Hospital, Abbottabad and Armed Forces Institute
of Cardiology, where he had been receiving the best kind of medical treatment including
the facility of angiography which revealed triple vessels coronary Artery disease and
ultimately he went under "Coronary Bypass Surgery (CAGB)" and as far as other
diseases complained by him i.e. Diabetic de-compensation and Renal Impairment etc. are
concerned full medical cover has been provided to him in one of the best hospitals of the
country, therefore, the High Court granted the bail to the respondent in violation of the
law laid down by this Court time and again i.e. the accused shall be released on bail in the
non-bailable cases if his detention in Jail is hazardous to his life and is not likely to get
the proper treatment in the jail.
4. On the other hand learned counsel for respondent vehemently argued that the
respondent had been attempting to bail because he was suffering from such diseases,
treatment of which was not possible in Jail, therefore, his detention was hazardous to his
life. In this behalf he referred to the report of Medical Board which has been produced in
pursuance of order dated 4th February, 2005 to substantiate that after release on bail the
respondent remained admitted in Jinnah Hospital, Lahore on 17th January, 2005 where he
remained admitted till 27th January, 2005. In support of his arguments he relied upon the
judgments in the cases Mian Manzoor Ahmed Wattoo v. The State (2000 SCMR 107),
Ch. Zulfiqar Ali v. The State (PLD 2002 SC 546) and Muhammad Saeed Mehdi v. The
State 2 others (2002 SCMR 282).
5. We have heard parties counsel at length and have also examined thoroughly the
precedent law on the subject. At the very outset it is necessary to point out that the
respondent had obtained post-arrest bail in Reference No. 16 of 2002 dated 24th July,
2002 by invoking Constitutional jurisdiction of the High Court in view of the observation
in the case Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet
Page No. 3 of 2
Division and others (PLD 2001 SC 607). Whereas in Reference No. 38 of 2002 he
succeeded in getting pre-arrest bail by filing Writ Petition No.20214 of 2002 despite of
the fact that in Khan Asfandar Wali (ibid) case, no observation for grant of pre-arrest bail
has been made by this Court. Be that as it may this aspect of the case would) be attended
later on but at this stage there is yet another important aspect, of the case which requires
to be highlighted namely that according to reports, which have been relied upon by
learned High Court, the respondent remained in the hospital as indoor patient during
which he also gone through the CABG etc. up to 11th April, 2002 and thereafter he was
stable and was on medications. These facts are being noted to point out that it is not the
case of respondent that he was not getting proper treatment during his detention.
Undoubtedly had he remained in custody in Jail without above classic treatment then he
could have made out a case for bail on medical ground because the law laid down by this
Court is that if the ailment with which the accused is suffering is not being properly
treated while in custody in Jail, then his case on medical ground can be examined. In the
instant case admittedly as it has been pointed out hereinabove the respondent had been
receiving proper treatment in the renowned hospitals of the country, therefore, it was
incumbent upon the High Court to have applied its independent mind before exercising
discretionary jurisdiction in his favour while noting the facts, narrated hereinbefore,
particularly that at the time of his surgery etc. when he was admitted in the hospital; he
had never requested for grant of bail because he was quite satisfied with the treatment
being offered to him. In this behalf it can conveniently be said that if an accused is
suffering from ailments but is already in hospital where he is getting the treatment
according to his own choice, his case will not fall within the exceptions of the provisions
of section 497()), proviso Cr.P.C. Reference in this behalf may be made to the cases of
Haji Rahimullah v. The State and another 1970 SCMR- 514 and Malik Muhammad
Yousafullah Khan v. The State and another PLD 1995 SC 58. Relevant para. therefrom is
reproduced hereinbelow:--
"From the above discussed position it is clear to us that the bail on medical
ground can be granted under section 497, Cr.P.C. if the Court reaches the
conclusion on the basis of medical report that the ailment with which the accused
is suffering is such that it cannot be properly treated while in custody in Jail. The
fact that the appellant is not suffering from any particular type of injury (as
observed by the learned Judge that there was no fracture of bone in that case),
would not be a ground either to refuse or grant the bail on medical ground. The
correct criteria for grant of bail to an accused in a non-bailable case, on medical
ground, in our view, would be that the sickness or ailment with which the accused
is suffering is such that it cannot be properly treated within the premises 'of jail
and that some specialized treatment is needed and his continued detention in Jail
is likely to affect his capacity or is hazardous to his life. In the case before us not
only there is a categorical statement by the Members of the Board, constituted to
examine the condition of the appellant, that there was no possibility of treatment
of the appellant's injury even in specialized centres of Peshawar but also in other
areas of the country, the Board also recommended immediate treatment of the
appellant in a foreign country to avoid disability. We have also on record a letter
from Dr. Salim Mahmud of `The Medical Centre, 80 Fortune Green Road,
London' addressed to Visa Section British High Commission, Islamabad Pakistan,
in which the said doctor after discussing the case of appellant with a specialist had
advised the patient (appellant) to reach London for his extensive reconstruction
AM surgery, and fixed his appointment for 25-7-1994. The estimated expenses
were as Pounds. 7,000 to Pounds 8,000. We are, therefore, of the view that in
view of this categorical statement made in the report of the Medical Board,
constituted by the Court for examining the condition of the accused, there is no
necessity for calling for any further medical opinion in the case. Keeping in view
of the nature of treatment required for the injury suffered by the accused, the trial
Court rightly granted bail to the accused. We, accordingly, admit the accused
appellant to bail in the sum of Rs.10 lacs with two sureties in the like amount to
the satisfaction of the trial Court."
The above principle has been reiterated in the case of Muhammad Arshad v. The State
1997 SCMR 1275, Muhammad Adam Bajwa v. The State PLD 2004 SC 780 and
Shahabzuddin Chaudhry and another v. The State PLD 2004 SC 785.
Page No. 4 of 2
6. Learned counsel for respondent contended that learned High Court had decided the
case of respondent in view of the observation in the case of Mian Manzoor Ahmad
Wattoo (ibid). In this behalf it is to be noted that in criminal administration of justice each
case has to be examined on its own fact and circumstances and Courts are required to
exercise jurisdiction independently. Besides it petitioner-Mian Manzoor Ahmed Wattoo
remained in jail where specialized treatment was impossible, therefore, when his case
came up for hearing he was directed to be examined by the experts of AFIC.
Simultaneously by passing an interim order he was directed to be shifted AFIC within a
day or two till disposal of the petition. Whereas in instant case the respondent had never
gone to Jail and had been receiving treatment either in Ayub Teaching Hospital.
Abbottabad or in FICU-NIHD Rawalpindi, therefore, this judgment has no bearing on
this case.
In addition to it we may observe that when it has been established as a matter of fact that
the respondent has been getting proper treatment in the hospital or in Jail he would not be
entitled for grant of bail as it has been held in the case of Zarin Khan v. The State 1980
SCMR 305.
7. As far as the case of Ch. Zulfiqar Ali (ibid) is concerned it needs no discussion because
no principle of law has been pronounced therein. Inasmuch as the judgment in the case of
Malik Muhammad Yousafullah Khan (ibid), wherein the principle of law for releasing a
person has been discussed, was not brought in the notice of the Court. As far as the
judgment in the case of Muhammad Saeed Mehdi (ibid) is concerned it is also not
attracted in view of the facts of the case because the petitioner in that case was not in
hospital but was in Jail, therefore, he was held entitled for bail as it was not possible to
provide him a specialized treatment in Jail.
8. At this juncture it is to be noted that a report was called for from the Medical Board
constituted by the "Commandant AFIC, Rawalpindi in pursuance of order dated 4th
February, 2005 to assess the present status of health of respondent because we have to
examine the impugned order of the learned High Court in view of the material available
on record but nevertheless in the interest of justice during the pendency of application for
grant or for cancellation of bail such report can be called for from an institute having
specialization in the diseases with which respondent is allegedly suffering. The report
indicates that the health of the respondent is improving.
We may note here that the Courts are not required to qualify or quantify the nature of
disease and once a. case is made out under the recognized principle, laid down by this
Court in this behalf, bail is to be granted on medical ground leaving prosecution at liberty
to move the: Court for cancellation of bail if health of accused has improved during
pendency of proceedings, because on the ground of sickness or infirmity, on exceptional
term law has offered an opportunity to an accused to enjoy the concession of bail subject
to satisfying the Court about the nature of his ailment as well as on the ground of
non-getting of proper treatment in jail, but no sooner the accused has improved his health
the prosecution can come forward with the request to withdraw the concession of bail.
9. Now turning towards the case arising out of Writ Petition No.20214 of 2002 wherein
respondent had sought bail before arrest in Reference No.38 of 2002. It is to be noted that
under the NAB Ordinance there is no provision for grant of bail before arrest, therefore,
K this Court while examining the vires of 9(b) of the NAB Ordinance in the case of Khan
Asfandyar Wali (ibid) took view that High Court shall exercise this power sparingly in
rare and exceptional circumstances for valid reasons to be recorded in writing. In this
behalf reference can also be made to the case of Meeran Bux v. The State PLJ 1986 (sic)
526 and Murad Khan v. Fazal-e-Subhan and another PLD 1983 SC 82. As such we are of
the opinion that the powers for grant of bail conferred by this Court has to be exercised
strictly keeping in view the observations made therein but it seems that the learned High
Court had not recorded reasons indicating the exceptional circumstances for exercising
extraordinary Constitutional jurisdiction in favour of respondent particularly in the case
in which the accused had not been arrested and no ground of mala fide for bail before
arrest has been attributed to the prosecution in the memo. of petition.
Besides it respondent had failed to bring his case within the said principles, as such he
was not entitled for bail before arrest as it has been held in the case of Malik Zafar Abbas
Page No. 5 of 2
v. Agha Raza Abbas Qazilbash and another PLD 2002 SC 529. Therefore, for this added
reason, impugned order dated 18th December, 2002 in Writ Petition) No.20214 of 2002 is
not sustainable in law.
Thus for the foregoing reasons Civil Petition Nos. 99-L and 100-L of 2003 are converted
into appeals and allowed as a result whereof order dated 18th December, 2002 in both the
petitions is set aside. Before parting with the judgment we may observe that the
Accountability Court may dispose of the reference pending against the respondent
expeditiously in the interest of justice.
S.A.K./S-87/5 Appeals accepted.
Page No. 6 of 2
2010 M L D 24
[Peshawar]
Before Liaqat Ali Shah, J
HAROON RASHID---Petitioner
Versus
EHSAN-UL-HAQ alias IHSANULLAH and 5 others-Respondents
B.C.As. Nos.523 and 953 of 2009, decided on 14th September, 2009.
Criminal Procedure Code (V of 1898)---
----S.497(5)---Penal Code (XLV of 1860), Ss.367-A, 365-B & 376---Kidnapping and

rape---Bail, cancellation of---Application for---Respondents/accused were directly
charged by the victim in her statement recorded at the first instance by the Police, as
well as in her statement under S.164, Cr.P.C. for the commission of the offence---
Medical evidence as well as the Forensic Science Laboratory's report had supported
her version--Report in such-like cases was made at the cost and risk of family
honour and future of the victim---Case of accused persons was one which fell under
the barring provisions of S.497, Cr.P.C.---No doubt, normally the bail granted by the
court of competent jurisdiction was not interfered with, but if it was found that the
same had been granted in violation of the established principles for the grant of bail
and the law on the subject, then superior courts would not hesitate to interfere--Bail
granted to accused persons, was recalled, in circumstances.
2008 SCMR 1602 rel.
Saklin Janan and Naeelam Khan for Petitioners.
Lal Jan Khattak for Respondent No.4 and 5.
Ijaz Khan for Respondent No.2.
Abdul Jan Khattak for Respondent No.3
F.M. Sabir for the State.
Date of hearing: 14th September, 2009.
JUDGMENT
LIAQAT ALI SHAH, J.---Through this order, I propose to decide B.C.A. No.523
of 2009 and B.C.A. No.953 of 2009 as both arise from F.I.R. No.66, dated 24-2-
2009 of Police Station Karak under sections 367-B and 376, P.P.C.
2. Facts relevant for the disposal of these applications are that on 22-2-2009,
Haroon-Ur-Rashid son of Noor Alam at 2230 hours reported to the police in Police
Station Karak that on 21-2-2009, his sister namely Sajida Azam, student of class 8th
did not return home from school after closing hours. They searched for her but could
not find her. At the time of making the report, he told the police that he had come to
know that Irfan Akbar son of Noor Shahid Khan has forcibly taken away his sister
for the marriage. This report was recorded in the Daily Diary, dated 22-2-2009 at
serial No.26.
3. On 23-2-2009 Sajida Azam reached the police station along with one Irfan,
brother of her friend, and recorded her statement to the effect that on 21-2-2009,
after closing hours of the school, she was on the way back to her home when
accused Sufian and Ihsanullah present in a motor car, asked her that they would take
her to her house in their motorcar and she boarded the car. Instead of taking her
Page No. 1 of 2
house, they took her to the Baitak of accused Rashid and there accused Sufian,
Ihsanullah, Muhsin, Hassan, Rashid Mahmood son of Hamiuddllah, Rashid Rahman
son of Amal Rahman and Javed committed rape with her. She further disclosed to
the police that it was on that date i.e. 23-2-2009 that at Sham Vela she could escape.
On 24-2-2009, her statement under section 164, Cr.P.C. was recorded and on the
same day she was examined by the lady doctor who found the hymen not intact and
discharge stains on the trousers. However, no mark of violence was noticed.
Notices were issued to the accused-respondents in both the applications vide this
Court orders, dated 8-6-2009 and 10-7-2009 respectively.
4. Except for accused Sufian and Muhsin, the remaining accused were refused bail
by the learned Senior Civil Judge, Karak. However, they were admitted to bail by
the learned Sessions Judge, Karak vide order, dated 28-3-2009. Later on, accused
Sufian and Muhsin were granted bail by the learned Senior Civil Judge on the
ground of consistency.
5. Arguments of the learned counsel for the parties heard and record perused.
6. Learned counsel for the complainant/petitioner contended that the accused-

respondents are directly charged by the victim in her statement before the police as
well as before the Magistrate; that the medical report as well as the FSL report
support the version of the victim; that in such like cases, report is made at the risk
and cost of the family honour as well as the future of the victim; that the offence
falls under the barring provision of section 497, Cr.P.C. and as such the learned
Sessions Judge has extended the concession of bail to the accused-respondents in
violation of the established principles for the grant of bail. The learned State
Counsel supported the petitions on the same grounds.
7. The learned counsel for the accused-respondents submitted that the conduct of the
victim is not above board; that while being examined by the lady doctor, no mark of
violence was found on her body. It was contended that the bail granted by the Court
of competent jurisdiction is not normally interfered with.
8. A perusal of the order of the learned Sessions Judge shows that bail has been
granted on the grounds that the complainant, on the basis of some information had
charged Irfan son of Noor Shahid on 22-2-2009 but no action was taken on this
report against Irfan and the investigation is silent about him. Further that according
to the statement under section 164, Cr.P.C., the victim was taken by the accused-
respondents on 21-2-2009 to the Baitak of accused Rashid and in the dark of night
she managed to escape. The learned Sessions Judge has observed that she managed
to escape on 21-2-2009 and had gone to the house of Irfan and that she was produced
for medical examination on 24-2-2009. The above stated facts led the learned
Sessions Judge to the conclusion that the occurrence had not taken place in the
manner in which it was depicted.
9. The record however speaks otherwise. In her statement before the police recorded
on 23-2-2009, the victim has stated.
"I have got a chance to go away today's evening."
which suggest that it was on 23-2-2009 that she got an opportunity to escape and on
the same date, according to her statement, she went to the house of her friend Ms.
Nilo wherefrom accused Irfan accompanied her to the police station on her request.
Similar statement has been given by her before the Magistrate.
10. The submission of the learned counsel for the accused-respondents that the
conduct of the victim was not above board, cannot be dilated upon at this stage. The
absence of marks of violence on her body will also be having no effect as the
resistance in the given circumstances was not possible. Reliance is placed on 2008
SCMR 1602. No doubt, normally the bail granted by the Court of competent
jurisdiction is not interfered with but if it is found that the same has been granted in
violation of the established principles for the grant of bail and the law on the
Page No. 2 of 2
subject, then the superior Courts would not hesitate to interfere.
11. The accused-respondents are directly charged by the victim in her statement
recorded at the first instance by the police on 23-2-2009 as well as in her statement
under section 164, Cr.P.C. for the commission of the offence. The medical evidence
as well as the FSL report supports her version. Report in such like cases is made at
the cost and risk of family honour and future of the victim. The case of the accused-
respondents is one which falls under the barring provision of section 497, Cr.P.C.
Hence the bail granted-to the accused-respondents is hereby recalled. The accused-
respondents are present in Court, taken into custody and sent to judicial lock-up.
12. It may however be observed that if any fresh material favourable to the accused-
respondents is brought on record, they may apply for bail afresh to the learned
Sessions Judge, karak. The office is directed to transmit the record to the quarter
concerned forthwith. Challan of the case should positively be submitted for trial
before the Court within 15 days and the trial Court shall conclude the trial within a
period of 6 months under intimation to this Court. No unnecessary adjournment is to
be granted during the trial.
H.B.T./182/P Appeal allowed.
Page No. 3 of 2
2010 G B L R 54
[Northern Areas Supreme Appellate Court]
Present: Muhammad Nawaz Abbasi, C.J., Syed Jaffar Shah and Muhammad
Yaqoob, JJ
THE STATE----Petitioner
Versus
ZAHOOQ----Respondent
Crl. Misc. No.7 of 2009, heard on 18th June, 2009.
----S.497(5)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979),

S.10---Penal Code (XLV of 1860), Ss.376/450---Gilgit-Baltistan (Empowerment and
Self-Governance) Order, 2009, Art.60(13)---Rape, house-trespass---Bail, cancellation
of---Accused had been nominated in the F.I.R.---Victim girl had fully implicated the
accused in the offence in her statement made under S.161, Cr.P.C., which was fully
corroborated by her medico-legal report---Sufficient material was available on record to
connect the accused with the commission of offence falling within the prohibitory
clause of S.497(1), Cr.P.C.---Bail could not be claimed as of right in non-bailable cases
and the same would not be granted as a matter of grace---Supreme Appellate Court,
held, would not hesitate to interfere with the order passed by lower court on improper
exercise of discretionary jurisdiction in the spirit of law---Accused was directly charged
by the minor victim girl for having committed "zina" with her along with his co-
accused, which was an offence under S.10(4) of the Offence of Zina (Enforcement of
Hudood) Ordinance, 1979, punishable with death---Bail granted to accused by Chief
Court was cancelled in circumstances.
----S.497---Bail in non-bailable offences---Principles---Bail in non-bailable cases is

discretionary and court must exercise such discretionary jurisdiction according to the
settled principles for grant of bail in such cases---Bail cannot be claimed as of right in
non-bailable cases punishable with death or imprisonment for life, unless the same fall
within the ambit of S.497(2), Cr.P.C., and if the case is not covered by the said
provision of law, bail may not be granted as a matter of g r a c e .
Advocate-General for the State.
Accused present in person.
JUDGMENT
MUHAMMAD YAQOOB, J.---This is an application for cancellation of bail granted to

the respondent in a case under Offence of Zina (Enforcement of Hudood) Ordinance,
1979.
The brief facts of the case as contained in the F.I.R. lodged by the complainant named
therein are that on 17-10-2008 the grand daughter of complainant namely Bibi Sofia was
present in her make-shift house/ tent at Harpan Dass Chilas. In the meantime
accused/petitioners forcibly dragged the victim Bibi Sofia into the tent and committed
gang rape with the above named victim. After commission of the offence all the accused
decamped from the scene of occurrence. When the complainant/F.I.R. lodger came to the
tent/house, the victim narrated the whole incident.
The co-accused namely Sumbul Shah and Saifullah have been enlarged on bail by the
learned Additional Sessions Judge vide order dated 13-4-2009. Being aggrieved from the
above cited order, State has filed the petition for cancellation of bail, before the Chief
Page No. 1 of 2
Court, Northern Areas Gilgit, which is still pending for adjudication. The present
petitioner had moved an application for bail, before the Chief Court, Northern Areas. The
learned Single Bench of Chief Court accepted the bail petition and enlarged the
accused/petitioner on bail under the "Rule of consistency" against which the State has
preferred this bail cancellation application before the apex Court on 27-05-2009. That the
petitioner/accused personally appeared before the full Bench of this court and stated at
Bar, that he was not going to engage a counsel for his legal assistance. However, the apex
Court, instructed to the learned Advocate-General for Northern Areas, to argue the instant
bail cancellation application in favour as well as against the accused.
The learned Advocate-General contended that the accused/ petitioner has been directly
nominated in the F.I.R. The medico-legal report is in positive, which is a more authentic
report without any shadow of doubt. However he pointed out some minor contradictions
in the F.I.R. and site plan.
We have given our thoughtful consideration to the arguments advanced by the learned
Advocate General and have perused the record of the case. Perusal of the record reveals
that all three accused/ petitioners have been nominated in the F.I.R.. The victim has fully
implicated the petitioners/accused in the, offence by making statement under section 161,
Cr.P.C., which is in full corroboration to the medico legal report. Material available is
also sufficient at bail stage to connect the accused/petitioner with commission of offence
falling within the prohibitory clause of section 497 subsection (2) of Cr. P.C.
The above aspects of the case in the light of the statement of minor victim girl (15 years of
age) and her medical examination would apparently suggest that the respondents were
equally responsible for the commission of offence and would not be entitled to the
concession of bail on the basis of rule of consistency. The bail in non-boilable cases is
discretionary and Court must exercise this discretionary jurisdiction in the light of the
settled principles for grant of bail in such cases. The bail can not be claimed as of right in
non-bailable cases punishable with death or life imprisonment unless the case falls within
the ambit of sub-section (2) of section 497 Cr. P.C. and if the case is not covered by the
provision of the subsection (2) of section 497 Cr. P.C. the bail may not be granted as a
matter of grace. This Court is slow in interfering in the order passed by the Chief Court in
its discretion but if it is found that discretionary jurisdiction was not properly exercised in
the spirit of law. This Court would not hesitate to interfere in the order.
In the present case the respondent alongwith his co-accused allegedly committed Zina with
minor girl, which is an offence under section 10(4) of Offence of Zina (Enforcement of
Hudood) Ordinance, 1979 punishable with death. The bail in such nature of cases is not to
be ordinarily granted, and respondent being directly charged by the victim girl would not
be entitled to the concession of bail.
For what has been discussed herein above, this Court is inclined to cancel the bail granted
to the present petitioner by recalling the impugned order passed by the learned Single
Bench of Chief Court Northern Areas, to meet the ends of justice. Leave to appeal is
granted.
Bail cancellation petition disposed of accordingly. File be consigned to record after due
completion.
N.H.Q./10/Glt. Bail cancelled.
Page No. 2 of 2
Page No. 1 of 2
Page No. 1 of 2
Page No. 1 of 2

Supreme Court of Pakistan Reviews Cancellation of Bail Granted on Medical Grounds

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Supreme Court of Pakistan Reviews Cancellation of Bail Granted on Medical Grounds

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2010 S C M R 580

[Supreme Court of Pakistan]

Present: Rahmat Hussain Jafferi and Ghulam Rabbani, JJ

THE STATE/ANTI-NARCOTIC through Director-General Petitioner

RAFIQ AHMAD CHANNA----Respondent

Criminal Petition No.117-K of 2009, decided on 24th December, 2009.

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

----S. 497---Bail---Points to be considered by Court while dealing with bail

(c) Whether the accused is minor, woman, sick or infirm person?

(d) The nature and gravity of the charge.

(f) The danger of the accused absconding if he is released on bail.

(g) The danger of witnesses being tampered with.

(h) the danger of the alleged offence being continued or repeated.

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

(j) An opportunity to the accused to prepare his defence.

(l) Bail should never be withheld as a punishment.

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

----S. 497(5)---Control of Narcotic Substances Act (XXV of 1997), S.9(b)---

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

----S. 497(5)---Cancellation of bail---Principles---Considerations for cancellation of

Nemo for Respondent.

c) Whether the accused is minor, woman, sick or infirm person?

d) The nature and gravity of the charge.

f) The danger of the accused absconding if he is released on bail.

g) The danger of witnesses being tampered with.

h) The danger of the alleged offence being continued or repeated.

i) The character, the means and standing of the accused.

l) Bail should never be withheld as a punishment.

N.H.Q./S-2/SC Petition dismissed.

[Supreme Court of Pakistan]

SOBHARO and another----Respondents

Cr.P.L.A. No.108-K of 2009, decided on 29th December, 2009.

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

----S. 497---Constitution of Pakistan (1973), Art.185(3)---Bail, refusal of---High Court

Muhammad Yousafullah Khan v. State PLD 1995 SC 58 distinguished.

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

----S. 497(5)---Cancellation of bail granted on medical ground---Principles---Grant of

Abdul Mujeeb Pirzada, Senior Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 29th December, 2009.

"Contrary to the said certificate, the accused present in Court appears to be a

N.H.Q./D-1/SC Leave refuse

[Supreme Court of Pakistan]

Present: Ijaz-ul-Hassan Khan and Muhammad Qaim Jan Khan, JJ

DILAWAR and another----Respondents

Criminal Petition No.20-P of 2009, decided on 17th April, 2009.

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

----S. 497(5)---Penal Code (XLV of 1860), S.324---Constitution of Pakistan (1973),

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

----S. 497(5)---Cancellation of bail---Principle---Considerations for cancellation of bail

Mir Adam Khan, Advocate-on-Record for Petitioner.

Hafiz Aman for the State.

Date of hearing: 17th April, 2009.

IJAZ-UL-HASSAN KHAN, J.---Muhammad Azhar, petitioner, seeks leave to appeal

N.H.Q./M-66/SC Leave refused.

[Supreme Court of Pakistan]

Mst. NOOR HABIB----Petitioner

SALEEM RAZA and others----Respondents

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

----S. 497(5)---Penal Code (XLV of 1860), Ss.302/148/149/109---Bail, cancellation of-

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

----S. 497(5)---Penal Code (XLV of 1860), Ss.302/148/149/109--Constitution of Pakistan

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