2007 S C M R 482

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Abdul Hameed Dogar and Saiyed Saeed
Ashhad, JJ
EHSAN AKBAR----Petitioner
Versus
THE STATE and 2 others----Respondents
Civil Petition No.185 of 2006, decided on 27th September, 2006
(On appeal from the order, dated 28-4-2006 of the Lahore High Court Rawalpindi Bench, passed
in Criminal Miscellaneous No.320/B of 2006).
(a) Criminal Procedure Code (V of 1898)------S. 497(5)---Penal Code (XLV of 1860), S.302---Bail, cancellation of---Principles--Jurisdiction of Supreme Court---Scope---Supreme Court, ordinarily does not interfere with the
order of High Court relating to bail, particularly in case of murder, when trial is to commence, so
as to avoid discussion and remarks on merits of the case---For cancellation of bail, strong and
exceptional grounds are required and it is to be seen as to whether order granting bail is patently
illegal, erroneous, factually incorrect and has resulted in miscarriage of justice.
(b) Criminal Procedure Code (V of 1898)------Ss. 497(2) & 497(5)---Penal Code (XLV of 1860), S.302---Bail, cancellation of---Case of
further inquiry---Deeper appreciation of evidence---Failure to recover weapon of offence--Accused allegedly used Klashanikov rifle during the occurrence---High Court granted bail to
accused on the ground that the rifle was not recovered from him during investigation--Validity---Ground which weighed with High Court for grant of bail was not at all a valid
ground---Case of accused was not of further inquiry as contemplated under S.497 (2) Cr.P.C.--Grant of bail to accused had prejudiced the case of complainant as it amounted to deeper
appreciation of evidence---While granting bail, only tentative assessment of evidence was to be
made, whereas deeper appreciation of evidence was to be avoided---Supreme Court converted
petition for leave to appeal into appeal and set aside the order passed by High Court, resultantly
bail granted to accused was recalled---Appeal was allowed.
Nazir Ahmed v. Muhammad Ismail and another 2004 SCMR 1160 and Raja Muhammad Irshad
v. Muhammad Bashir Goraya 2006 SCMR 1292 ref.
(c) Criminal Procedure Code (V of 1898)------Ss. 497(2) & 497(5)---Penal Code (XLV of 1860), S.302---Bail, cancellation of---Case of
further inquiry---Conflict in ocular and medical account---Injury attributed to accused was found
on the body of deceased, therefore, High Court found the case of' accused as one of further
inquiry and granted him bail---Validity---Held, there was a conflict between prosecution version
and medical evidence; as prosecution case was that accused gave Chhuri blow on the neck of
deceased whereas according to Medico-legal Report, as well as the diagram all injuries were
caused with fire-arm weapon---Complainant failed to make out a case for cancellation of bail
granted to accused---Supreme Court declined to interfere with the order passed by High Court--Leave to appeal was refused.
Dr. Babar Awan, Advocate Supreme Court for Petitioner.
Khadim Hussain Qaiser, Additional Advocate-General, Punjab for Respondent No. 1.
Sardar Muhammad Ishaque, Senior Advocate Supreme.

Court with Respondents Nos.2 and 3.

Date of hearing; 27th September, 2006.
JUDGMENT
ABDUL HAMEED DOGAR, J.--- Petitioner seeks leave to appeal against the order, dated 284-2006 of a learned Judge in Chambers of the Lahore High Court, Rawalpindi Bench,
Rawalpindi, whereby Criminal Miscellaneous No.320/B of 2006 filed by respondent No.2
Qadeer Ahmad and respondent No.3 Abdul Ghaffar was allowed and they were granted bail in a
case registered vide F.I.R. No.482 dated 18-12-2005 at Police Station Shahzad Town, Islamabad
for offences under sections 302/34 and 109, P.P.C. read with sections 6 and 7 of Anti-Terrorism
Act, 1997.
2. Precisely stating facts of the case according to the complainant/petitioner are that on the night
between 17/18-12-2005 at about 3-15 a.m. he heard noise of abuses from roof top and his son
Zamir went there. Thereafter he, his son Shafique, wife of Zamir and son-in-law of Shabbir saw
Qadeer Ahmad respondent No.2 armed with kalashnikov and respondent No.3 Abdul Ghaffar
armed with Chhuri along with other co-accused namely Zahoor and Naseer who were also armed
with deadly weapons. Respondent No.3 Abdul Ghaffar raised Lalkara that Zameer would not be
let alive. Whereupon respondent No.2 Qadeer Ahmad and other co-accused started firing with
their respective weapons which hit on the different parts of Zameer. When he tried to rise from
the ground, respondent Abdul Ghaffar gave him a Chhuri blow on his neck who succumbed to
the injuries at the spot.
3. We have heard Dr. Babar Awan, learned Advocate Supreme Court for petitioner/complainant,
Mr. Khadim Hussain Qaiser, Additional Advocate-General, Punjab for the State and Sardar
Muhammad Ishaque, learned senior Advocate Supreme Court for respondents Nos.2 and 3 at
length and have gone through the record and the proceedings of the case in minute particulars.
4. Learned counsel for the petitioner vehemently contended that learned High Court while
granting bail to respondents Nos.2 and 3 had not appreciated the facts of the case in depth and
the same is contrary to settled principles of law governing the grant of bail under section 497(1),
Cr.P.C. According to him, specific roles have been attributed to both respondents in commission
of offence. Thus, the finding of learned High Court that there is a case of further inquiry is not
sustainable in law. It is also settled principle of law that opinion of Investigating Officer is not
binding on the Courts. He further contended since charge has been framed and trial is to
commence as such grant of bail at this stage will prejudice the case of the petitioner. In support
of his contentions he referred to the cases of Nazir Ahmed v. Muhammad Ismail and another
2004 SCMR 1160 and Raja Muhammad Irshad v. Muhammad Bashir Goraya 2006 SCMR 1292.
5. Learned Additional Advocate-General Punjab supported the counsel for petitioner and added
that in given facts and circumstances of the case, respondents Nos.2 and 3 were not entitled for
grant of bail.
6. On the other hand learned counsel for respondents contended that case of respondent No.3
Abdul Ghaffar is of further inquiry as according to F.I.R. he was Armed with Chhuri and caused
Chhuri blow on the neck of deceased but the same is not corroborated by post-mortem report
wherein not even a single injury caused by sharp-edged weapon has been shown. As regards to
respondent No.2 Qadeer Ahmed he contended that his case is also of further inquiry as he has
been declared innocent by police during investigation. He further contended that there is
consistent practice of this Court that once bail is granted to a person, then it is not to be cancelled
without any cogent reasons.
7. It is well-settled principle of law that this Court ordinarily does not interfere with the order or
the High Court relating to bail particularly in case of' murder when the trial is to commence so as
to avoid discussion and remarks on the merits of the case. But it is also fact that for cancellation
of bail, strong and exceptional grounds arc required. 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
considered opinion that the learned High Court was not at all justified in extending benefit of

grant of bail to respondent No.2 Qadeer Ahmed. He was not only attributed specific role of firing
at the deceased but his participation is corroborated by presence of fire-arm injuries on the
person of deceased. The main ground which weighed with the learned High Court for grant of
bail to respondent No.2 Abdul Qadeer was that the recovery of kalashnikov was not made from
hint is not at all a valid ground. Accordingly, his case is not of further inquiry as contemplated
under section 497(2), Cr.P.C. and the grant of bail has prejudiced the case of
complainant/petitioner as it amounts to deeper appreciation of evidence. It is well-settled
principle of law that while granting bail only tentative assessment of evidence is to be made
whereas deeper appreciation of evidence is to be avoided, this principle has been ignored by
learned High Court while granting bail to respondent No.2. Reference can be made to the case of'
Nazir Ahmed (supra) wherein this Court cancelled the bail allowed to accused by High Court on
the ground that specific role of firing at deceased was attributed to accused. In the case of Raja
Muhammad Irshad referred (supra) bail granted to respondent was cancelled though he was
charged for the offence under section 109, P.P.C. in murder case and it was held that while
considering the request of the accused on bail, a deeper appreciation of evidence is not called for
and the Court seized of the matter in terms of section 497(1), Cr.P.C. is required to make
tentative assessment of evidence available on record.
8. As far as the case of respondent No.3 Abdul Ghaffar is concerned, there is a conflict between
the prosecution version and the medical evidence. As per prosecution case, he gave Chhuri blow
on the neck of the deceased whereas according to MLR as well as the diagram all the injuries
were caused with fire-arm weapon. As such his case is on different footing.
9. For the foregoing reasons impugned judgment dated 28-4-2006 to the extent of respondent
No.2 Qadeer Ahmed is set aside and the concession of bail granted to him is recalled. He is
directed to surrender before the learned trial Court. The petition to his extent is converted into
appeal and allowed. As far as respondent No.3 Abdul Ghaffar is concerned, learned counsel has
failed to make out a case for cancellation of his bail, as such the petition to his extent is
dismissed.
M.H./E-5/SC

Order accordingly.