Page 1 of 7

QLC, LHR
LLB-III
CASE LAW
P L D 1995 Supreme Court 34

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

TARIQ BASHIR and 5 others---Petitioners

versus

THE STATE---Respondent

Criminal Petition for Leave to Appeal No. 56-K of 1994, decided on 31st August, 1994.

(On appeal from the order of High Court of Sindh at Karachi, dated 5-7-1994 passed in Criminal Bail
No.265/1994 (Kar.) 117/1994 (Hyd.)).

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

----Ss. 496 & 49'7---Bail---Grant of bail in bailable offence is a right while in non-bailable offences the
grant of bail is not a right but concession/grace--Grant of bail in offences punishable with
imprisonment for less than 10 years is a rule and refusal an exception---Exceptional and extraordinary
cases whore bail is declined in cases of offences punishable with imprisonment of less than ten years
enumerated.

In bailable offences the grant of bail is a right and not favour, whereas in non-bailable offences the
grant of bail is not a right but concession/grace. Section 497, Cr.P.C. divided non-bailable offences
into two categories i.e. (i) offences punishable with death, imprisonment of life or imprisonment for tee
years; and (ii) offences punishable with imprisonment for loss than ten years. In non-bailable offences
falling in the second category (punishable with imprisonment for less than ten years) the grant of bail
is a rule and refusal an exception. So the bail will be declined only in extraordinary and exceptional
cases for example ---

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

(b) where there is apprehension of the accused tampering with the prosecution evidence;

(c) where there is danger of the, offence being repeated if the accused is released on bail; and

(d) where the accused is a previous convict.

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

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

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

Many under-trial accused of bailable offences and preventive offences i.e.- offences under suctions
 Page 2 of 7

1(l7,1Q9 and ILtI, Cr.P.C. are sent to or confined in jails for want of surety bonds although they, at the
discretion of the Court, could be released on execution by chum of bond (personal bond) without
surety for their appearance before the Court, Even in petty cases the Courts/subordinate Courts
remand the accused to ,jail on their failure to produce sureties with the result that hundreds of under-
trial accused who could have easily been released on personal bond are ratting in the jail for a long
time. Supreme Court, therefore, directed that in bailable cases while remanding the accused to jail on
his failure to furnish surety/bail bonds, the trial Court shall consider, the propriety of his release on
execution of personal bond. Not only the first order of judicial remand but also each subsequent order
must-show that the Court had really considered the propriety of his release on personal bond. Instead
of being severe to an under-trial accused carrying presumption of innocence with them, it is bettor that
the Court should be lenient in the matter-of bail, food and medical facilities.

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

_--S. 497---prisons Act (IX of 1894), S.32__Bail-- Under-trial prisoner--Accused in bailable offences,
potty offences and offences punishable- with imprisonment for less than 10 years should not
unnecessarily be detained in the jail---Under-trial prisoners are entitled to have clothes and food
privately under 5.32; Prisons Act, which facilities are to be liberally provided to them till they are
convicted.

Under section 32 of the Prisons Act, an under-trial prisoner is entitled to have clothes and
food privately. These facilities should liberally be provided to them till they are convicted. The jails are
over-crowded. The detention of under-trial prisoners, food and medical facilities and their
transportation from jail to the Court heavily burden public exchequer. It would be in consonance with
the law of bail and in the fitness of things that accused in bailable offences, petty offences and
offences punishable with imprisonment for less than ten years should not unnecessarily be detained
in the jail.

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

----S. 497---Bail---Accused of offences punishable with death, or imprisonment for life, or for ten
years---Grant/refusal of bail to be determined judiciously having regard to the facts and circumstances
of each case---Provisions of 5.497, Cr.P.C. are not punitive in nature as regards offences punishable
with death; or imprisonment for life, imprisonment for ten years, for there is no concept of punishment
before judgment in law---Where the prosecution satisfies the Court that there are "reasonable
grounds" to believe that the accused has committed the crime falling in category of offences
punishable with death, or imprisonment for life, or imprisonment for ten years the Court must refuse
bail---Where, however, the accused satisfies the Court that there are no reasonable grounds to
believe that he is guilty of such offence, then the Court must release him on bail---Court, for arriving
at any such conclusion, is not to conduct a preliminary trial/ inquiry but will only make tentative
assessment "Reasonable grounds" mean grounds which appeal to a reasonable and prudent

man---Guidelines for Courts in disposal of bail cases furnished.--[Words anti phrases].

As regards offences, punishable with death, or imprisonment for life, or imprisonment for ten years the
provisions of section 497(1) are not punitive in nature. There is no concept of punishment before
judgment in the criminal law of the land. The question of grant/refusal of bail is to be determined
judiciously leaving regard to the facts and circumstances of each case. Where the prosecution
satisfies the Court, that there are reasonable grounds to believe that the accused has committed the
crime falling in the category of offences punishable with death, or imprisonment for life, or
imprisonment for ten years; the Court must refuse bail. On the other hand where the accused satisfies
the Court that there are not reasonable grounds to believe that he is guilty of such offence, then the
 Page 3 of 7

Court must release him on bail. For arriving at the conclusion as to whether or not there are
reasonable grounds to believe that the accused is guilty of offence punishable with death,
imprisonment for life or imprisonment for ten years, the Court will not conduct a preliminary
trial/inquiry but will only make tentative assessment, i.e., will look at the material collected by the
police for and against the accused and be prima facie satisfied that some tangible evidence can be
offered which, if left unrebutted, may lead to the inference of guilt. Deeper appreciation of the
evidence and circumstances appearing in the case is neither desirable nor permissible at bail stage.
So, the Court will not minutely examine the merits of the case or plea of defence at that stage.

The bail order must be carefully balanced and weighed in scale of justice and requirement of relevant
law. Reasonable grounds mean grounds which appeal to a reasonable and prudent man.

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

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

different---Once bail is granted by Court of competent jurisdiction, then strong and exceptional
grounds would be required for cancellation thereof.

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

----S. 497---Bail---To deprive a person on post-arrest bail of the liberty is a most serious step to be
taken..

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

----S. 497---Bail---Offence allegedly committed by accused punishable with death; imprisonilpent for
life or imprisonment for ten years---Benefit of reasonable doubt about occurrence itself, identity of-the
accused, part allegedly played by accused in the occurrence, his presence on the spot and all the
questions of his vicarious liability, would go to him at bail stage --- Wherever reasonable doubt arises
with regard to the participation of an accused person in the crime, he should not be deprived of the
benefit of bail, for bail can neither be withheld nor cancelled as punishment.--[Benefit of doubt].

There is no legal compulsion to cancel the bail of the accused who allegedly have committed crime
punishable with death, imprisonment for life or imprisonment for ten years. Question of benefit of
reasonable doubt is necessary to be determined not only while deciding the question of guilt of an
accused but also while considering the question of bail because there is a wide difference between
the jail life and a free life. So, benefit of reasonable doubt 'about occurrence itself, identity of the
accused, part allegedly played by him in the occurrence, his presence on the spot and on the question
of his vicarious liability, would go to him even at bail stage. There is a tendency to involve innocent
persons with the guilty. Once an innocent person is falsely involved in a serious case then he has to
remain in jail for considerable time. Normally it takes two years to conclude the trial. When a person is
detained in the jail, all his dependents also suffer hardships. The ultimate conviction and incarceration
of a guilty person can repair the wrong caused by a mistaken relief of interim bail granted to him, but
no satisfactory reparation can be offered to an innocent man for his unjustified incarceration -at any
stage of the case, albeit his acquittal in the long run. So, whenever reasonable doubt arises with
regard to the participation of an accused person in the crime, he should not be deprived of the benefit
of bail. The bail can neither be withheld nor cancelled as punishment.

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

----S. 497---Bail---One Judge of the High Court on examination of the F.LR., statements recorded
under S.161, Cr.P.C. and the material collected during investigation was of the opinion that there were
 Page 4 of 7

no reasonable grounds to believe that the accused were guilty of the offence alleged against them---
Another Judge of the same High Court on the same material on record had come to totally different
conclusion that there were reasonable grounds to believe that accused persons had committed the
alleged crime---Held contrary views/opinions of the two Judges of the same High Court about the guilt
of the accused, in circumstances, made out a case of further inquiry within the meaning of S.497(2),
Cr.P.C.

In the present case, one Judge of the High Court on examination of the F.LR., statements recorded
under section 161, CrP.C. and the material collected during investigation was of the opinion, that there
were no reasonable grounds to believe that the accused were guilty of the offences alleged against
them, whereas on the same material on record, another Judge of the same High Court had come to a
totally different conclusion that there were reasonable .grounds to believe that the accused persons
had committed the alleged crime. The contrary conclusions arrived at by the two Judges of the High
Court had made the existence of reasonable grounds to connect the accused with the crime doubtful,
entitling the accused to benefit of doubt at such stage. In any case, the contrary views/opinions of the
two Judges of the High Court about the guilt of the accused had made out a case of further inquiry
within the meaning of subsection (2) of section 497, Cr.P.C.

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

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

Date of hearing: 31st August, 1994.

JUDGMENT

MUHAMMAD MUNIR KHAN, J: --This petition for leave to appeal is directed against the order, dated
5-8-1994 of the High Court of Sindh at Karachi whereby post-arrest bail granted to the petitioners
Tariq Bashir and Shahzad Bashir on 22-12-1993 and Kamran Bashic, Suhail Zafar, Muhammad Moiz
and Zafar Iqbal on 9-3-1994, in case F.LR. No.146/1993, dated ?-4-1993, Police Station Ferozeabad,
by Mr. Justice Syed Khurshid Hyder Rizvi (as he then was) was cancelled by Mr. Justice Mamoon
Kazi of the same High Court.

2. Facts of the case, briefly stated, are that on 7-4-1993, at 1-00 p.m. five unknown persons, duly
armed, committed dacoity in the house of Mst. Robina Amjad and took away ornaments, jewellery,
cash and prize bonds. On the report of Mst. Robina Amjad, F.LR. under section 17(3) of the Offences
Against Property (Enforcement of Hudood) Ordinance, 1979 was registered at Police Station
Ferozeabad on the same day at 4-15 p.m. The petitioners were arrested on 2-11-1993 and the stolen
property was allegedly recovered from them. They were released on bail by the High Court which was
subsequently cancelled vide impugned order. Hence this petition for leave to appeal.

3. Learned counsel for the petitioners contended that post-arrest bail granted to the petitioners by one
learned Judge of the High Court has been cancelled by another learned Judge of the same High
Court without legal and factual justification.

4. Learned Additional Advocate-General has half-heartedly supported the order of cancellation of bail
on the ground of seriousness of the charge.

5. Being fully' conscious of the seriousness of the charge against the petitioners we have examined
the impugned order of the cancellation of bail with utmost care on our part.

6. Section 496 and subsections (1) and (2) of section 497 of the Criminal Procedure Code read as
 Page 5 of 7

hereunder:---

"496. In what cases bail to be taken.-- -When any person other than a person accused of a non-
bailable offence is arrested or detained without warrant by as officer-in-charge of a police station, or
appears or is brought before a Court, and is prepared at any time while in the custody of such officer
or at any stage of the proceedings before such Court to give bail, such person shall be released on
bail: Provided that such officer of Court, if he or it thinks fit, may instead of taking bail, from such
person, discharge him on his executing a bond without sureties for his appearance as hereinafter
provided:

Provided further, that nothing in this section shall be deemed to affect the provisions of section 107,
subsection (4), or section 117, subsection (3).

497. When bail may be taken in case of non-bailable offence.---(1) When only person accused of any
non-bailable offence is arrested or detained without warrant by an officer-in-charge of a police station,
or appears or is brought before a Court, he may be released on bail, but he shall not be so released if
there appear reasonable grounds for believing that he has been guilty of an offence punishable with
death or imprisonment for life or imprisonment for ten years:

Provided that the Court may direct that any person under the age of sixteen years or any woman or
any sick or infirm person accused of such an offence be released on bail:

Provided further that a person accused of an offence as aforesaid shall not be released on bail unless
the prosecution has been given notice to show cause why he should not be so released,

2. If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case
may be, that there are not reasonable grounds for believing that the accused has committed a non-
bailable offence, but that there are sufficient grounds for further inquiry, into his guilt, the accused
shall, pending such inquiry, be released on bail, or at the discretion of such officer or Court, on the
execution by him of a bond without sureties for his appearance as hereinafter provided.,"

It is crystal clear that in bailable offences the grant of bail is a right and not favour, whereas in non-
bailable offences the grant of bail is not a right but concession/grace. Section 497, Cr.P.C. divided
non-bailable offences into two categories i.e. (i) offences punishable with death, imprisonment of life
or imprisonment for ten years; and (ii) offences punishable with imprisonment for fuss than .ten years.
The principle to be deduced from this provision of law is that in non-bailable offences falling in the
second category (punishable with imprisonment for less than ten years) the grant of bail is 'a rule and
refusal an exception. So the bail will be declined only in extraordinary and exceptional cases, for
example-_-

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

(b) where there is apprehension of the accused tampering with the prosecution evidence;

(c) where there is danger of the offence being repeated if the accused is released on bail; and

(d) where the accused is a previous convict.

We know that many under-trial accused of bailable offences and I preventive offences i.e. offences
under sections 10?, 109 and 110, Cr.P.C. have been sent to confined in jails for want of surety bonds
although they, at the discretion of the Court, could be released on execution by them of bond
(personal bond) without surety for their appearance before the Court. We also find that even in petty
 Page 6 of 7

cases the Courts/subordinate Courts have remanded the accused to jail on their failure to produce
sureties with the result that hundreds of under-trial accused who could have easily been released on
personal bond are rotting in the jail for a long time. It is, therefore, directed that in bailable ', cases
while remanding the accused to jail on his failure to furnish surety bail bonds, the trial Court shall
consider the propriety of his release on execution of personal bond. Not only the first order of judicial
remand but also each subsequent order must show that the Court had really considered the propriety
of his release on personal bond. Instead of being severe to an under-trial accused carrying
presumption of innocence with them, it is better that the Court should be lenient in the, matter of bail,
food and medical facilities. It is to be noted that under section 32 of the Prisons Act, an under-trial
prisoner is . entitled to have clothes and food privately. These facilities should liberally be provided to
them till they are convicted. The jails in our country are overcrowded. The detention of under-trial
prisoners, food and medical facilities and their transformation from jail to the Court heavily burden
public exchequer. It would be in consonance with the law of bail and in the fitness of things that
accused in bailable offences, petty offences and offences punishable with imprisonment less than ten
years should not unnecessarily be detained in the jail.

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

8. The case-law on the subject of bail is very much clear that the bail order must be carefully balanced
and weighed in scale of justice and requirement of relevant law. Reasonable grounds mean grounds
which appeal to a reasonable and prudent man.

9. The considerations for the grant of bail and for cancellation of the same are altogether different.
Once the bail is granted by a Court of competent jurisdiction, then strong and exceptional grounds
would be required for cancellation thereof. To deprive a person on post-arrest bail of the liberty is a
most serious step to be taken. There is no legal compulsion to cancel the bail of the accused who
allegedly has committed crime punishable with death, imprisonment for life or imprisonment for ten
years. Question of benefit of reasonable doubt is necessary to be determined not only while deciding
the question of guilt of an accused but also while considering the question of bat: because there is a
wide difference between the jail life and a free life. So, benefit of reasonable doubt about occurrence
itself, identity of the accused, part allegedly played by him in the occurrence, his presence on the spot
and on the question of 'his vicarious liability, would go to him even at bail stage. It is by now
judiciously recognized that there is a tendency in our country to involve innocent persons with the
guilty. Once an innocent person is falsely involved in a serious case then he has to remain in jail for
considerable time. Normally it takes two years to conclude the trial. When a person is detained in the
jail, all his dependents also suffer hardships. The ultimate conviction and incarceration of a guilty
person can repair the wrong caused by a mistaken relief of interim: bail granted to him, but no
satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage
 Page 7 of 7

of the case, albeit his acquittal in the long run. So, whenever reasonable doubt arises with regard to
the participation of an accused person in the crime, he should not be deprived of the benefit of bail.
The bail can neither be withheld nor cancelled as punishment.

10. In the instant case, one learned Judge of the High Court on examination of the F.LR., statements
recorded under section 161, Cr.P.C. and the material collected during investigation was of the opinion
that there were not reasonable grounds to believe that the petitioners are guilty of the offences
alleged against them, whereas on the same material on record, another learned Judge of the same
High Court has come to a totally different conclusion than there are reasonable grounds to believe
that the petitioners have committed the alleged crime. We feel that the contrary conclusions arrived at
by the two learned Judges of the High Court have made the existence of reasonable grounds to
connect the accused with the crime doubtful, entitling the petitioners to benefit of doubt at this stage.
In any case, the contrary views/opinions of the two learned Judges of the High Court about the guilt of
the petitioners have made. out a case of further inquiry within the meaning of ,subsection (2) of
section 497, Cr.P.C. '

11. Even otherwise, the grounds on which the bail was allowed by the learned Judge of the High
Court are supportable from the facts and circumstances of the case. The names of the
petitioners/accused are not mentioned although two of them namely, Tariq Bashir and Shahzad Bashir
are the first cousins of the complainant. In the F.LR., number of the accused given by the complainant
was five. During investigation it was exaggerated from five to nine. Three persons namely, Jano
Bhatti, Capt. Nadeem, and Nadeem son of Jano who were previously known to the complainant were
also implicated. The details of the jewellery, ornaments, number of prize bonds and the amount of
cash are not mentioned in the F.LR. In this view of the matter, it cannot be said that on the tentative
assessment of the evidence the learned Judge of the High Court was not justified in granting, bail to
the petitioners.

12. Accordingly, the petition is converted into an appeal and allowed, subject to the petitioners
furnishing fresh hail bonds in the sum of Rs. 25,000 each, with one surety each in the like amount to
the satisfaction of the trial curt. The challan has already been submitted in the Court. The trial Court is
directed to die the case within six months. The observations made by High Court in the impugned
orders and by this Court in this judgment are without prejudice to the case of either party at trial.

By our short order we had converted the petition into an appeal and allowed the same. These are the
reasons therefor.

M.B.A:/T-104/S

Order accordingly