2011 Y L R 117

[Lahore]
Before Sh. Ahmad Farooq, J
Syed TANVEER HUSSAIN---Petitioner
Versus
THE STATE and others---Respondents
Criminal Miscellaneous No. 5702/B of 2010, decided on 17th June, 2010.
Criminal Procedure Code (V of 1898)------S. 498---Penal Code (XLV of 1860), S.489-F---Pre-arrest bail, grant of---Dispute
between accused and the complainant emanated from an agreement, whereby the
complainant agreed to sell his shop to the accused---Complainant had received certain
amount out of total consideration from accused---Held, no doubt the cheques in dispute
were issued by accused in respect of payment of remaining consideration (amount) for
the purchase of shop and same were dishonoured, but in that case the nature of
transaction, the earlier admitted payment to the complainant by accused and pendency
of civil litigation, had to be taken into consideration for determining the dishonest
intention of accused, while issuing the cheques---Dishonest intention was sine qua non
for constituting an offence falling under S.489-F, P.P.C.---Genuine business transaction,
previous history of financial dealings and contractual obligation, could not per se fall
within the mischief of S.489-F, P.P.C.---Dispute between the parties primarily was of a
civil nature---Prima facie, the commission of offence falling within the mischief of S.489F, P.P.C. by accused, was open to doubt and benefit of doubt was to be given to
accused, even at bail stage-Pre-arrest bail already granted to accused, was confirmed,
in circumstances.
Ch. Muhammad Ashraf Jalal for Petitioner.
Muhammad Iqbal Chaudhry, DPG for the State.
Shakoor Ahmad, A.S.-I., Police Station Gulshan Ravi, Lahore.
Asim Khan Sherwani for the Complainant.

ORDER

SH. AHMAD FAROOQ, J.---The petitioner/Syed Tanveer Hussain seeks pre-arrest bail in
a case arising, out of F.I.R. No.107 of 2010, dated 18-2-2010, registered in Police
Station Gulshan Ravi Lahore, under section 489-F, P.P.C.
2. Briefly, the prosecution story as narrated by the complainant in the F.I.R. is that the
complainant entered into an agreement with the petitioner to sell his shop. It is alleged
that the petitioner could not arrange the remaining consideration amount with the
stipulated period and in this regard, an arbitration deed was executed between the
parties on 13-2-2009 and it was agreed that the petitioner will pay the said remaining
amount till 31-12-2009. In pursuance to the said arbitration agreement, the present
petitioner gave two cheques amounting to Rs.7,00,000 and Rs.20,00,000 respectively, to
the complainant. The cheque amounting to Rs.7,00,000 was dishonoured the concerned
Bank on its presentation for encashment.
3. Learned counsel for the petitioner submitted that the petitioner and the complainant
entered into an agreement to sell dated 25-10-2008, whereby the complainant sold a
Shop No. 2-A, situated at 73-Mall Plaza, Sharah-e-Quaid-i-Azam, Lahore, to the present
petitioner in consideration of Rs.74,00,000 out of which Rs.10,00,000 were already
stood paid in the form of advance rent and Rs.10,00,000 were paid as earnest money.
He further submitted that the complainant earlier lodged an F.I.R. No. 817 of 2009 on 117-2009, wherein the petitioner was arrested and subsequently, bailed out on the basis of
a compromise after paying an amount of Rs.10,00,000. Learned counsel for the
petitioner claimed that the petitioner has so far paid Rs.50,00,000 to the complainant
and only Rs.24,00,000 is outstanding against him out of the total consideration amount
but the complainant received cheques of Rs.27,00,000 from the petitioner under duress.
Learned counsel for the petitioner also referred to the arbitration deed dated 13-8-2009
regarding the dispute between the parties. He maintained that the petitioner has filed a
suit for specific performance of the agreement dated 25-10-2008 and primarily, the
dispute between the parties is of civil nature. Lastly, he argued that no offence falling
under section 489-F, P.P.C. is made out against the present petitioner and he has been
falsely implicated by the complainant with mala fide intention.
4. Conversely, the learned counsel for the complainant as well as the learned Deputy
Prosecutor-General opposed the instant petition on the ground that issuance as well as
the return of the disputed cheques by the concerned bank due to insufficient funds is not
denied by the present petitioner. They further submitted that the petitioner did not pay
the remaining consideration amount in accordance with the agreement to sell within the
stipulated period and cheques in dispute were issued with dishonest intention of nonfulfilment of an obligation. They argued that the petitioner is not entitled to the extraordinary concession of pre-arrest bail.
5. Arguments heard. Record perused.
6. The dispute between the present petitioner and the complainant emanated from an

agreement dated 25-10-2008, whereby the complainant agreed to sell his shop to the
present petitioner in consideration of Rs.74,00,000. The complainant has so far received
Rs.50,00,000 out of the total consideration amount of Rs.74,00,000 from the present
petitioner, which is established from the arbitration deed, dated 13-8-2009. No doubt, the
cheques in dispute were issued by the present petitioner in respect of the payment of the
remaining consideration amount of the shop and the same were dishonoured by the
concerned Bank when presented for encashment due to insufficient funds. But in this
case, the nature of transaction, the earlier admitted payment of Rs.50,00,000 and
pendency of civil litigation has to be taken into consideration far determining the
dishonest intention of the present petitioner, while issuing the cheques in dispute.
Needless to emphasis that dishonest intention is sine qua non for constituting an offence
falling under section 489-F, P.P.C. Genuine business transaction, previous history of
financial dealings and contractual, obligation may not per se fall within the mischief of
section 489-F, P.P.C. Hence, in the instant case, the dispute between the parties is
primarily of a civil nature, which is, prima facie, established from the agreement to sell,
dated 25-10-2008, followed by arbitration deed dated 13-8-2009 and the suit for specific
performance filed by the present petitioner on 17-12-2009.
7. In view of above, prima facie, the commission of an offence falling within the mischief
of section 489-F, P.P.C. by the present petitioner is open to doubt and benefit of doubt is
to be given to an accused even at bail stage. Resultantly, the instant pre-arrest bail
petition filed by Syed Tanveer Hussain is allowed and pre-arrest bail already granted is
confirmed subject to submission of fresh bail bonds in the sum of Rs.1,00,000, with one
surety, in the like amount to the satisfaction of learned trial Court.
H.B.T./T-52/L

Bail confirmed.

2010 S C M R 806
[Supreme Court of Pakistan]
Present: Khalil-ur-Rehman Ramday, Mahmood Akhtar Shahid Siddiqui and Rahmat
Hussain Jafferi, JJ
MUHAMMAD SULTAN----Appellant

Versus
THE STATE----Respondent
Criminal Appeal No.233-L of 2009 in Criminal Petition No.546-L of 2009, decided on 15th
December, 2009.
(Against the judgment, dated 15-5-2009 of the Lahore High Court, Lahore passed in
Criminal Revision No.226 of 2009).
(a) Penal Code (XLV of 1860)------S. 489-F---Dishonouring of cheque--Criminal proceedings, initiation of---Preconditions.
If following conditions are fulfilled and proved by prosecution, only then provisions of
S.489-F, P.P.C. are attracted:
(i) issuance of cheque;
(ii) such issuance was with dishonest intention;
(iii) the purpose of issuance of cheque should be:
(a) to re-pay a loan; or
(b) to fulfil an obligation (which in a wide term inter alia applicable to lawful
agreements, contracts, services, promises by which one is bound or an act which
binds a person to some performance).
(iv) on presentation, the cheque is dishonoured.
(b) Penal Code (XLV of 1860)------S. 489-F---Dishonouring of cheque---Valid defence.
Accused can take a valid defence, if he proves that he had made arrangements with his
bank to ensure that cheque would be honoured; and that the bank was at fault in
dishonouring the cheque. If accused establishes such two facts through tangible
evidence and that too after prosecution proves ingredients of offence, then the accused
is absolved from punishment.
(c) Penal Code (XLV of 1860)------S. 489-F---Reappraisal of evidence---Dishonouring of cheque---Scope---Steeling of
cheque---Insufficient balance---Accused did not dispute his signatures on the cheque in
question---Plea raised by accused was that his signed cheque was stolen from his
cheque book---Validity---It was against natural conduct that a person would keep blank
signed cheque in his cheque book---Defence witness stated that when accused filed
application for stopping of payment of cheque in question, at that time accused had only

a balance of Rs.300, in his account; in the application to stop payment of cheque,

accused did not take the plea that his cheque book was stolen or that a cheque from the
cheque book was missing---Supreme Court declined to interfere in concurrent findings of
courts below resultantly conviction and sentence was maintained---Appeal was
dismissed.
Ch. Muhammad Rafique Warraich, Advocate Supreme Court for Appellant.
Syed Ali Imran Shah, D.P.-G. for the State.
Khalid Aseer Chaudhry, Advocate Supreme Court for the Complainant.
Date of hearing: 15th December, 2009.

JUDGMENT

RAHMAT HUSSAIN FAFFERI, J.--- On 21-3-2005 at 8-50 a.m. the complainant Noor
Muhammad lodged the F.I.R. at Police Station Kotwali, Faisalabad alleging therein that
there was a business dealing between him and the appellant for supply of kitchen towel
cloths. In pursuance of the said dealing an amount of Rs.33,72,038 was outstanding
against the appellant. In order to satisfy the claim the appellant issued a cheques of
Rs.25,00,000 dated 26-2-2005 which was presented before the bank but it was
dishonoured on 28-2-2005. After investigation the police challaned the appellant in the
Court where he was tried and convicted for offence punishable under section 489-F,
P.P.C. and sentenced to three years' R.I. and fine of Rs.15000 or in default thereof to
suffer imprisonment for one month with benefit of section 382-B, Cr.P.C., vide judgment
dated 15-7-2008 of Judicial Magistrate (Section 30, Cr.P.C.), Faisalabad. The appellant
preferred an appeal and criminal revision before the Sessions Court and High Court,
respectively but the same were dismissed. Therefore, the appellant filed the petition for
grant of leave to appeal. The leave was granted on 29-6-2009, hence the present
appeal.
2. Section 489-F, P.P.C. reads as under: --"Dishonestly issuing a cheque---Whoever dishonestly issues a cheque towards
repayment of a loan or fulfilment of an obligation which is dishonoured on presentation,
shall be punishable with imprisonment which may extend to three years, or with fine, or
with both, unless he can establish, for which the burden of proof shall rest on him, that
he had made arrangements with his bank to ensure that the cheques would be honoured
and that the bank was at fault in not honouring the cheques."
A perusal of section 489-F, P.P.C. reveals that the provision will be attracted if the
following conditions are fulfilled and proved by the prosecution: --

(i) issuance of cheque;

(ii) such issuance was with dishonest intention;
(iii) the purpose of issuance of cheques should be:--(a) to repay a loan; or
(b) to fulfil an obligation (which in wide term inter alia applicable to lawful
agreements, contracts, services, promises by which one is bound or an act which
binds person to
some performance).
(iv) on presentation, the cheques is dishonoured.
However, a valid defence can be taken by the accused, if he proves that: --(i) he had made arrange meats with his bank to ensure that the cheques would be
honoured; and
(ii) that the bank was at fault in dishonoring the cheque.
If the accused establishes the above two facts through tangible evidence and that too
after the prosecution proves the ingredients of the offence then he would be absolved
from the punishment.
3. The learned counsel for the appellant has argued that the appellant's cheques book
was stolen, therefore, the complainant himself filled in the cheques of Rs.2,5,00,000 but
on 26-1-2005 one month before its presentation the appellant moved an application
before the bank for stopping the said cheques. He has further stated that the stand of
the appellant has been supported by the employee of the bank, who was examined as
D.W.1.
4. Conversely, the learned counsel for the complainant has stated that the appellant had
issued the cheque with his signature; that the appellant has not denied the signature on
the cheque; that a contrary stand has been taken by the appellant in his statement
recorded under section 342, Cr.P.C. than the above stand; that the case has been fully
proved against the appellant, therefore, the concurrent findings of Courts below do not
require any interference by this Court. The learned DPG has supported the arguments of
learned counsel for the complainant.
5. Having heard the learned counsel and perusing the record of the case, we find that
there was business transaction between the complainant and appellant. Prosecution
alleged that in order to satisfy the claim of the complainant the appellant issued the
cheque. Such fact has been proved from the evidence of P.Ws. Without touching the
factual aspect of the case, the learned counsel for the appellant has simply argued that
the appellant's cheques book was stolen and the complainant filled the cheque. Such
plea has not been supported by his own statement under section 342, Cr.P.C. In
response to a query, the learned counsel for the appellant has stated that the appellant

kept the signed cheque which was stolen and used by the complainant. Thus the
appellant has not disputed the signature on the cheques in question. It is against the
natural conduct that a person would keep a blank signed cheque in the cheque book.
Furthermore, D.W.1 has stated that on 26-1-2005 an application was filed by the
appellant for stopping the payment of the cheque and that at that time the balance in the
account of the appellant was Rs.300 only. We have perused the said application from
which we find that the appellant did not take the plea that his cheque book was stolen or
that a cheque from the cheque book was missing. It appears that balance in the account
of the appellant was Rs.300 only at the time when the application was moved as such it
does not appeal the common sense that the appellant would request the bank to stop
the transaction when there was meagre amount lying in the account.
6. After considering the material available on record, we are of the considered view that
the concurrent findings of the Courts below do not call for interference. The appeal has
no merits, therefore, the same is dismissed.
M.H./M-10/SC

Appeal dismissed.

2010 Y L R 624
[Lahore]
Before Habib Ullah Shakir, J
MUSTANSAR YOUSAF SUKHERA--- Petitioner
Versus
THE STATE---Respondent
Criminal Miscellaneous No. 6025-B of 2009, decided on 24th June, 2009.
Criminal Procedure Code (V of 1898)------S.497(2)---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Bail,
grant of---Further inquiry---Case was reported to the Police with a delay of one year and
three months, which fact had created doubt on the veracity of the prosecution story--Offence under S.489-F, P.P.C. entailed maximum punishment of three years and
offences which entailed maximum punishment of 10 years, the grant of bail was a rule

and its refusal was an exception---Mere issuance of a cheque which was subsequently
dishonoured would not constitute an offence under S.489-F, P.P.C., unless same was
issued dishonestly and for repayment of loan or for discharging of any obligation--Question of dishonest issuance of cheque and its dishonest dishonouring could also not
to be determined at bail stage---Just for the purpose of keeping accused in jail without
any further investigation, bail could not be refused, when no further investigation was to
be made---Bail could not be refused when no recovery of amount under the cheque was
yet to be made---Offence though was not bailable, but High Court could not ignore the
fact that the offence did not fall within prohibitory clause of S.497, Cr. P. C. ---Accused
was behind the bars since his arrest and investigation of the case had been completed-Keeping accused in jail for an indefinite period would serve no useful purpose---Though
as may as 22 cases of similar nature had been registered against accused, but in none
of said cases accused had been convicted---Accused, in circumstances, could not be
treated as desperate and hardened criminal---All such facts had made the case of
accused one of further inquiry---Accused was admitted to post arrest bail, in
circumstances.
Abdul Khaliq Sarfrani for Petitioner.
Ch. Fiaz Ahmad, Dy.P.-G. for the State.
Shehzad Saleem Warraich, for the Complainant.
ORDER
HABIB ULLAH SHAKIR, J.--Through the instant petition, petitioner seeks post-arrest bail
in case F.I.R. No.324/2009 dated 29-4-2009 registered under section 489-F, 'P.P.C. at
Police Station Defence-A, Lahore.
2. The prosecution story as per F.I.R. is that the petitioner issued cheque to the
complainant amounting to Rs.30,00,000 towards payment of outstanding amount which
was dishonoured when the complainant presented the same to the concerned bank for
its encashment.
3. Learned counsel for the petitioner contends that petitioners is innocent and has falsely
been involved in this case with mala fide intention of complainant and local police. In
fact, one Senior Police Officer who hails from the same Bradri of the petitioner, made
some investment in the business of the petitioner and the petitioner with the business
concern has been giving his due share from the profit and ultimately he has paid the
more amount to the said police officer than the amount invested by him but he was more
required for the purpose of investigation. Further detaining petitioner in jail will serve no
useful purpose. Therefore, the petitioner deserves the concession of bail.
4. Learned DPG assisted by learned counsel for complainant have opposed this bail
arguing that the petitioner is nominated in the F.I.R. with specific role of having issued
the impugned cheque in favour of the complainant which was subsequently
dishonoured. The petitioner is involved in 22 cases. He is habitual and hardened

criminal. The petitioner has been found guilty by the police during course of investigation
of the case. There is sufficient incriminating material available on the record against the
petitioner. So the petitioner does not deserve the concession of bail.
5. I have heard the arguments and perused the record.
6. Admittedly, this occurrence has taken place on 25-1-2008 while the case was reported
to the police on 29-3-2009 with the delay of one year and three months. This fact creates
doubt on the veracity of the prosecution story. It is pertinent to mention here that my
learned brother Mr. Zafar Iqbal Chaudhry-J has granted post-arrest bail to the petitioner
in five cases vide order dated 27-4-2009 and as such the petitioner has been granted
post-arrest bail in 20-cases of similar nature. The offence under section 489-F P.P.C.
entails maximum punishment of three years. It goes without saying that offences which
entail maximum punishment of 10 years, the grant of bail is a rule and its refusal is an
exception. Moreover, it is also well established principle that mere issuance of a cheque
which is subsequently dishonoured does not constitute an offence under section 489-F,
P.P.C. unless the same is issued dishonestly and for payment of loan or for discharging
of any obligation. Question of dishonest issuance of cheque and its dishonest
dishonouring could also not to be determined at bail stage. Just for the purpose of
keeping the accused in jail without any further investigation, bail could not be refused
when no further investigation was to be made. Bail could not be refused when no
recovery of amount under the cheque is yet to be made. Though the offence was not
bailable but this Court cannot ignore the fact that he offence does not fall within
prohibitory clause of section 497, Cr.P.C. The petitioner is behind the bars since his
arrest and investigation of the case has been completed. Keeping the petitioner in jail for
an indefinite period will serve no useful purpose. So far as the contention of learned
D.P.G. that 22 cases of similar nature, have been registered against the petitioner and
he is desperate and habitual is concerned, it is noted that in any of the said cases the
petitioner has not been convicted so far and as such petitioner may not be treated as
desperate and hardened criminal. All these facts make the case of the petitioner one of
further inquiry. So this petition is allowed and the petitioner is admitted to post-arrest bail
subject to this furnishing bail bond in the sum of Rs.100,000 (rupees on lac) with one
surety in the like amount to the satisfaction of the trial Court.
H.B.T./M-835/L

Bail granted.

2010 Y L R 332
[Lahore]
Before Rana Zahid Mahmood, J
MUHAMMAD JAVAID GHANI---Petitioner
Versus
THE STATE---Respondent
Criminal Miscellaneous No.1682-B of 2009, decided on 25th March, 2009.
Criminal Procedure Code (V of 1898)------S.497---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Bail,
grant of---Offence against accused did not fall within prohibitory clause of S.497, Cr. P.
C. and accused was no more required for investigation---Accused was admitted to bail,
in circumstances.
Ch. Salamat Ali Haidari for Petitioner.
Ch. Muhammad Zafar, Dy. P.-G. for the State.
Sultan Mahmood Dar, for the Complainant.
ORDER
RANA ZAHID MAHMOOD, J.---Post arrest bail application in case F.I.R. No.1055/2008
dated 31-12-2008 under section 489-F P.P.C. registered with Police Station Shalimar,
Lahore wherein it is alleged that petitioner gave a cheque of Rs.12,00,000 dated 27-102008 of Muslim Commercial Bank Limited Beedan Road, Lahore Branch to the
complainant, however the same was dishonoured, hence this case. After arrest bail
application of the petitioner was dismissed by learned Addl. Sessions Judge, Lahore
vide order dated 30-1-2009, hence this petition to this Court.
2. After hearing learned counsel for the petitioner and learned Deputy Prosecutor
General assisted by learned counsel for the complainant, I am of the view that since
offence does not fall within prohibitory clause and petitioner is no more required for
investigation. The petition is, therefore, accepted and the petitioner is allowed bail in the
sum of Rs.100,000 with one surety in the like amount to the satisfaction of the learned
trial Court.
H.B.T./M-711/L

Bail allowed.

2010 Y L R 2982
[Lahore]
Before Hafiz Abdul Rehman Ansari, J
SHAHID KHAN---Petitioner
Versus
THE STATE---Respondent
Criminal Miscellaneous No. 2813/B of 2009, decided on 28th September, 2009.
Criminal Procedure Code (V of 1898)------S.497---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Bail,
grant of---Offence under S.489-F, P.P.C. did not fall within the prohibitory clause of
S.497, Cr.P.C.---Accused was behind the bars for near about more than three months--Accused could not be kept behind the bars as a punishment--Grant of bail was a rule
and refusal was an exception---Challan of the case had been submitted and accused
was no more required for purpose of any recovery or investigation---Accused was
admitted to bail, in circumstances.
Tariq Bashir and other v. The State PLD 1995 SC 34 and Imtiaz Ahmed and another v.
The State PLD 1997 SC 545 ref.
Muhammad Irfan Wyne for Petitioner.
Shahid Iqbal, District Public Prosecutor for the State with Muhammad Ajmal Khan, A.S.-I.
with record.

ORDER
HAFIZ ABDUL REHMAN ANSARI, J.---Petitioner Shahid Khan son of Munir Khan
through this petition under section 497, Cr.P.C., seeks bail after arrest in case F.I..R.
No.361 dated 13-5-2009, registered at Police Station Mumtazabad, Multan, for an
offence under section 489-F, P.P.C. In the first instance, the petitioner applied for postarrest bail before the learned Illaqa/Judicial Magistrate, who vide order dated 10-6-2009

declined the said relief. Subsequently he applied for post-arrest bail before the learned
Sessions Judge, Multan, which was also declined by the learned Additional Sessions
Judge, Multan vide his order dated 26-6-2009, hence this petition.
2. The story unfolded in the F.I.R. is that the petitioner purchased fertilizer from Agriplex
Pakistan, Multan for Rs.15,50,000 and executed a cheque for Payment of the said
amount from his account to be drawn on the National Bank of Pakistan, which on
presentation to the concerned Branch was dishonoured.
3. The learned counsel for the petitioner submits that the offence under section 489-F,
P.P.C. does not fall within the prohibitory clause of section 497, Cr.P.C.; that the
maximum punishment for the said offence is three years imprisonment; that the
petitioner was employed as Sales Officer in the Agriplex being controlled by complainant
Waseem Butt, Regional Head while one Tahir was its Area Manager; that the petitioner
was drawing salary of Rs.9,000/- per month, and he was removed from service by the
complainant Company in December, 2007 and a suit in this regard for rendition of
accounts is also pending in respect of two cheques executed by Muhammad Tahir. The
petitioner denies his signatures on the cheque which was dishonoured. The learned
counsel submits that cheque book of the petitioner was stolen and his bogus signatures
were embossed on the cheque. Further submits that the Company never gave him any
fertilizer of such a huge amount; the cheque in dispute was stolen away by Muhammad
Tahir and on the basis of the said cheque the instant F.I.R. was lodged falsely; that the
body of the petitioner is not required for further inquiry; and that the petitioner is behind
the bars since 2-6-2009.
4. On the other hand, the learned DDPP submitted that the petitioner is specifically
nominated in the F.I.R. with specific role; that the cheque issued by the petitioner was
dishonoured on presentation to the concerned Bank; the petitioner is resident of District
Bahawalnagar so there is every likelihood of his abscondence; that sufficient
incriminating material is available on the record against the petitioner to connect him with
the offence.
5. I have heard the learned counsel for the parties and perused the record. Admittedly
the offence under section 489-F, P.P.C. does not fall within the prohibitory clause of
section 497, Cr.P.C. The petitioner is behind the bars for near about more than three
months. He cannot be kept behind the bars as a punishment in such like a cafe. Grant of
bail is a rule and refusal is an exception as held by the honourable Supreme Court in the
cases reported as Tariq Bashir etc. v. The State (PLD 1995 SC 34) and Imtiaz Ahmed
and another v. The State (PLD 1997 SC 545). A few lines from the referred Tariq Bashir's
case (supra) are reproduced hereunder:"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"

Further few lines from the referred case of Imtiaz Ahmed and another (supra) are
reproduced for guidance:"Even in case where a person is accused of non-bailable offence and the case does not
fall within the prohibitory clause, meaning thereby that the punishment prescribed for the
offence is neither death nor imprisonment for life nor 10 years, the grant of bail in such
cases is a rule and refusal an exception. My learned brother has referred in his judgment
the decision of this Court in the case of Tariq Bashir v. The State PLD 1995 SC 34 which
also lends support to the above view taken by me. It is, therefore, quite clear that refusal
of bail to a person in a case where he is entitled to its grant as of right, can only be
justified on some statutory provision or on grounds strictly relatable to the holding of a
just and fair trial. Such refusal cannot be justified on any high principles of ethics or
morality."
Challan of the case has been submitted and the petitioner is no more required for
purpose of any recovery or investigation. It will be of no use to keep the petitioner behind
the bars.
6. In view of above discussion, the petitioner is admitted to bail subject to his furnishing
bail bonds in the sum of Rs.1,00,000/- (Rupees one lac) with one surety in the like
amount to the satisfaction of the Trial Court. Anyhow, the learned Trial Court is directed
to complete the trial of the case within four months.
H.B.T./S-245/L

Bail granted.

2010 M L D 1063
[Lahore]
Before Ch. Iftikhar Hussain, J
MUHAMMAD RIAZ ---Petitioner
Versus
THE STATE and another---Respondents
Criminal Miscellaneous No. 3192-B of 2009, decided on 7th October, 2009.
(a) Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.489-F---Dishonouring of cheque---Bail, grant

of---Accused was behind the bars for the last five months---Accused was not a previous
convict---Offence did not fall within the prohibitory clause of S.497(1), Cr.P.C. and grant
of bail in such like cases was a rule and refusal an exception---Case of accused having
become of bail, he could not be deprived of his liberty simply for the reason that he had
remained an absconder---Factum of alleged absondence of accused was not an
exceptional circumstance to warrant refusal of relief of bail to him---Bail was allowed to
accused accordingly.
Tariq Bashir and 5 others v. The State PLD 1995 SC 34 ref.
(b) Criminal Procedure Code (V of 1898)------S.497---Penal Code (XLV of 1860), S.489-F---Dishonouring of cheque---Bail---Case
not hit by prohibitory clause of S.497, Cr.P.C.---General rule---Where the alleged offence
does not fall within the prohibitory clause of S. 497(1), Cr.P.C. grant of bail is a rule and
its refusal is an exception.
Tariq Bashir and 5 others v. The State PLD 1995 SC 34 ref.
(c) Criminal Procedure Code (V of 1898)------S.497---Penal Code (XLV of 1860), S.489-F---Dishonouring of cheque---Bail--Abscondence of accused---Effect---When case of an accused becomes of bail, then he
cannot be deprived of his liberty simply because he had remained an absconder.
Muhammad Wasim Shahab for Petitioner.
Ashfaq Ahmed Malik, D.P.-G. for Respondent No. 1 / for the State.
Muhammad Aslam for Respondent No2.
Muhammad Iqbal, S.-I. with police record.
ORDER
CH. IFTIKHAR HUSSAIN, J.---Petitioner Muhammad Riaz through the instant petition
has prayed for post-arrest bail in case F.I.R. No.445 registered under section 489-F,
P.P.C. with Police Station Tulamba, District Khanewal on 19-10-2008.
2. Briefly, the prosecution case as per the F.I.R. is that Muhammad Riaz (petitioner)
owed an amount of Rs.1,00,000 to the complainant in respect of gold articles purchased
by him from him (complainant) and he in lieu thereof issued him cheque, dated 1-92008, drawn on HBL Tulamba Branch, which ,on presentation could not be enchased.
Hence, the case.
3. After hearing the learned counsel for the parties and perusing the record, I find that he
is stated to be behind the bars since 8-4-2009. This period is spared over about five
months. He is also stated to be previous non-convict, which has not been controverted

by the other side.

4. The fact also remains that the alleged offence does not fall within the prohibitory
clause of section 497(1), Cr.P.C. In the case of "Tariq Bashir and 5 others v. The State"
(PLD 1995 SC 34), it has been held that grant of bail in such-like cases is a rule and
refusal an exception.
5. It has been argued by the prosecution side that he had remained a proclaimed
offender and this is an exceptional circumstance to warrant refusal of relief to him. I may
say here in this regard that if case of an accused, when may otherwise, become of bail,
he then cannot be deprived of his liberty simply for the reason that he had remained an
absconder. It has been explained by his side that he has not absconded and in fact had
remained in his house and the proceedings showing him to be so are fictitious. In view of
this explanation, I do not find the factum of his alleged absconsion to be an exceptional
circumstance to warrant refusal of relief to him.
6. In view of these circumstances, I accept this petition and admit him to bail subject to
his furnishing bail bonds in the sum of Rs.100,000 (Rupees one lac only) with one surety
in the like amount to the satisfaction of the learned Trial Court.
N.H.Q. /M-770/L

Bail granted.

P L D 1995 Supreme Court 34

Present: Mir Hazar Khan Khoso and Muhammad Munir Khan, JJ
TARIQ BASHIR and 5 others---Petitioners
versus
THE STATE---Respondent
Criminal Petition for Leave to Appeal No. 56-K of 1994, decided on 31st August, 1994.
(On appeal from the order of High Court of Sindh at Karachi, dated 5-7-1994 passed in
Criminal Bail No.265/1994 (Kar.) 117/1994 (Hyd.)).
(a) Criminal Procedure Code (V of 1898)------Ss. 496 & 49'7---Bail---Grant of bail in bailable offence is a right while in non-bailable
offences the grant of bail is not a right but concession/grace--Grant of bail in offences
punishable with imprisonment for less than ltl years is a rule and refusal an exception--Exceptional and extraordinary cases whore bail is declined in oases of offences

punishable with imprisonment of loss than ten years enumerated.

In bailable offences the grant of bail is a right and not favour, whereas in non-bailable
offences the grant of bail is not a right but concession/grace. Section 497, Cr.P.C.
divided non-bailable offences into two categories i.e. (i) offences punishable with death,
imprisonment of life or imprisonment for tee years; and (ii) offences punishable with
imprisonment for loss than ten years. In non-bailable offences falling in the second
category (punishable with imprisonment for less than ten years) the grant of bail is a rule
and refusal an exception. So the bail will be declined only in extraordinary and
exceptional cases for example --(a) where there is likelihood of the abscondence of the accused;
(b) where there is apprehension of the accused tampering with the prosecution
evidence;
(c) where there is danger of the, offence being repeated if the accused is released on
bail; and
(d) whore the accused is a previous convict.
(b) Criminal Procedure Code (V of 19138)------S. 497---Bail-_-Under-trial accused of bailable. offences---Remand on failure to
furnish surety/bail bond---H I,=-in bailable cases while remanding the accused to jail on
his failure to furnish surety/ail bond, Trial Court should consider the propriety of his
release on execution of personal bond and not only the fist ardor of judicial remand but
also oath subsequent ardor must show that the Court had really considered the propriety
of his release on personal bond.
Many under-trial accused of bailable offences and preventive offences i.e.- offences
under suctions 1(l7,1Q9 and ILtI, Cr.P.C. are sent to or confined in jails for want of surety
bonds although they, at the discretion of the Court, could be released on execution by
chum of bond (personal bond) without surety for their appearance before the Court,
Even in petty cases the Courts/subordinate Courts remand the accused to ,jail on their
failure to produce sureties with the result that hundreds of under-trial accused who could
have easily been released on personal bond are ratting in the jail for a long time.
Supreme Court, therefore, directed that in bailable cases while remanding the accused
to jail on his failure to furnish surety/bail bonds, the trial Court shall consider, the
propriety of his release on execution of personal bond. Not only the first order of judicial
remand but also each subsequent order must-show that the Court had really considered
the propriety of his release on personal bond. Instead of being severe to an under-trial
accused carrying presumption of innocence with them, it is bettor that the Court should
be lenient in the matter-of bail, food and medical facilities.
(c) Criminal Procedure Code (V of 1898)-._

---S. 497---prisons Act (IX of 1894), S.32__Bail-- Under-trial prisoner--Accused in

bailable offences, potty offences and offences punishable- with imprisonment for less
than 10 years should not unnecessarily be detained in the jail---Under-trial prisoners are
entitled to have clothes and food privately under 5.32; Prisons Act, which facilities are to
be liberally provided to them till they are convicted.
Under section 32 of the Prisons Act, an under-trial prisoner is entitled to
have clothes and food privately. These facilities should liberally be provided to them till
they are convicted. The jails are over-crowded. The detention of under-trial prisoners,
food and medical facilities and their transportation from jail to the Court heavily burden
public exchequer. It would be in consonance with the law of bail and in the fitness of
things that accused in bailable offences, petty offences and offences punishable with
imprisonment for less than ten years should not unnecessarily be detained in the jail.
(d) Criminal Procedure Code (V of 1898)------S. 497---Bail---Accused of offences punishable with death, or imprisonment for life, or
for ten years---Grant/refusal of bail to be determined judiciously having regard to the
facts and circumstances of each case---Provisions of 5.497, Cr.P.C. are not punitive in
nature as regards offences punishable with death; or imprisonment for life, imprisonment
for ten years, for there is no concept of punishment before judgment in law---Where the
prosecution satisfies the Court that there are "reasonable grounds" to believe that the
accused has committed the crime falling in category of offences punishable with death,
or imprisonment for life, or imprisonment for ten years the Court must refuse bail--Where, however, the accused satisfies the Court that there are no reasonable grounds
to believe that he is guilty of such offence, then the Court must release him on bail--Court, for arriving at any such conclusion, is not to conduct a preliminary trial/ inquiry but
will only make tentative assessment "Reasonable grounds" mean grounds which appeal
to a reasonable and prudent man---Guidelines for Courts in disposal of bail cases
furnished.--[Words anti phrases].
As regards offences, punishable with death, or imprisonment for life, or imprisonment for
ten years the provisions of section 497(1) are not punitive in nature. There is no concept
of punishment before judgment in the criminal law of the land. The question of
grant/refusal of bail is to be determined judiciously leaving regard to the facts and
circumstances of each case. Where the prosecution satisfies the Court, that there are
reasonable grounds to believe that the accused has committed the crime falling in the
category of offences punishable with death, or imprisonment for life, or imprisonment for
ten years; the Court must refuse bail. On the other hand where the accused satisfies the
Court that there are not reasonable grounds to believe that he is guilty of such offence,
then the Court must release him on bail. For arriving at the conclusion as to whether or
not there are reasonable grounds to believe that the accused is guilty of offence
punishable with death, imprisonment for life or imprisonment for ten years, the Court will
not conduct a preliminary trial/inquiry but will only make tentative assessment, i.e., will
look at the material collected by the police for and against the accused and be prima
facie satisfied that some tangible evidence can be offered which, if left unrebutted, may

lead to the inference of guilt. Deeper appreciation of the evidence and circumstances
appearing in the case is neither desirable nor permissible at bail stage. So, the Court will
not minutely examine the merits of the case or plea of defence at that stage.
The bail order must be carefully balanced and weighed in scale of justice and
requirement of relevant law. Reasonable grounds mean grounds which appeal to a
reasonable and prudent man.
(e) Criminal Procedure Code (V of 1898)-----s, 497(5)---Bail---Cancellation---Grant of bail and cancellation thereof--Considerations
altogether different---Once bail is granted by Court of competent jurisdiction, then strong
and exceptional grounds would be required for cancellation thereof.
(f) Criminal Procedure Code (V of 1898)------S. 497---Bail---To deprive a person on post-arrest bail of the liberty is a most serious
step to be taken.
(g) Criminal Procedure Code (V of 1898)------S. 497---Bail---Offence allegedly committed by accused punishable with death;
imprisonilpent for life or imprisonment for ten years---Benefit of reasonable doubt about
occurrence itself, identity of-the accused, part allegedly played by accused in the
occurrence, his presence on the spot and all the questions of his vicarious liability, would
go to him at bail stage --- Wherever reasonable doubt arises with regard to the
participation of an accused person in the crime, he should not be deprived of the benefit
of bail, for bail can neither be withheld nor cancelled as punishment.--[Benefit of doubt].
There is no legal compulsion to cancel the bail of the accused who allegedly have
committed crime punishable with death, imprisonment for life or imprisonment for ten
years. Question of benefit of reasonable doubt is necessary to be determined not only
while deciding the question of guilt of an accused but also while considering the question
of bail because there is a wide difference between the jail life and a free life. So, benefit
of reasonable doubt 'about occurrence itself, identity of the accused, part allegedly
played by him in the occurrence, his presence on the spot and on the question of his
vicarious liability, would go to him even at bail stage. There is a tendency to involve
innocent persons with the guilty. Once an innocent person is falsely involved in a serious
case then he has to remain in jail for considerable time. Normally it takes two years to
conclude the trial. When a person is detained in the jail, all his dependents also suffer
hardships. The ultimate conviction and incarceration of a guilty person can repair the
wrong caused by a mistaken relief of interim bail granted to him, but no satisfactory
reparation can be offered to an innocent man for his unjustified incarceration -at any
stage of the case, albeit his acquittal in the long run. So, whenever reasonable doubt
arises with regard to the 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 no reasonable grounds to believe that the accused were guilty of
the offence alleged against them--Another Judge of the same High Court on the same
material on record had come to totally different conclusion that there were reasonable
grounds to believe that accused persons had committed the alleged crime---Held
contrary views/opinions of the two Judges of the same High Court about the guilt of the
accused, in circumstances, made out a case of further inquiry within the meaning of
S.497(2), Cr.P.C.
In the present case, one Judge of the High Court on examination of the F.LR.,
statements recorded under section 161, CrP.C. and the material collected during
investigation was of the opinion, that there were no reasonable grounds to believe that
the accused were guilty of the offences alleged against them, whereas on the same
material on record, another Judge of the same High Court had come to a totally different
conclusion that there were reasonable .grounds to believe that the accused persons had
committed the alleged crime. The contrary conclusions arrived at by the two Judges of
the High Court had made the existence of reasonable grounds to connect the accused
with the crime doubtful, entitling the accused to benefit of doubt at such stage. In any
case, the contrary views/opinions of the two Judges of the High Court about the guilt of
the accused had made out a case of further inquiry within the meaning of subsection (2)
of section 497, Cr.P.C.
Kh. Naveed Ahmad, Advocate instructed by Faizanul Haq, Advocate-on-Record for
Petitioners.
Abdul Ghafur Mangi, Additional Advocate-General, Sindh for the State
Date of hearing: 31st August, 1994.
JUDGMENT
MUHAMMAD MUNIR KHAN, J: --This petition for leave to appeal is directed against the
order, dated 5-8-1994 of the High Court of Sindh at Karachi whereby post-arrest bail
granted to the petitioners Tariq Bashir and Shahzad Bashir on 22-12-1993 and Kamran
Bashic, Suhail Zafar, Muhammad Moiz and Zafar Iqbal on 9-3-1994, in case F.LR.
No.146/1993, dated ?-4-1993, Police Station Ferozeabad, by Mr. Justice Syed Khurshid
Hyder Rizvi (as he then was) was cancelled by Mr. Justice Mamoon Kazi of the same
High Court.
2. Facts of the case, briefly stated, are that on 7-4-1993, at 1-00 p.m. five unknown
persons, duly armed, committed dacoity in the house of Mst. Robina Amjad and took
away ornaments, jewellery, cash and prize bonds. On the report of Mst. Robina Amjad,
F.LR. under section 17(3) of the Offences Against Property (Enforcement of Hudood)
Ordinance, 1979 was registered at Police Station Ferozeabad on the same day at 4-15

p.m. The petitioners were arrested on 2-11-1993 and the stolen property was allegedly
recovered from them. They were released on bail by the High Court which was
subsequently cancelled vide impugned order. Hence this petition for leave to appeal.
3. Learned counsel for the petitioners contended that post-arrest bail granted to the
petitioners by one learned Judge of the High Court has been cancelled by another
learned Judge of the same High Court without legal and factual justification.
4. Learned Additional Advocate-General has half-heartedly supported the order of
cancellation of bail on the ground of seriousness of the charge.
5. Being fully' conscious of the seriousness of the charge against the petitioners we have
examined the impugned order of the cancellation of bail with utmost care on our part.
6. Section 496 and subsections (1) and (2) of section 497 of the Criminal Procedure
Code read as hereunder:--"496. In what cases bail to be taken.-- -When any person other than a person accused of
a non-bailable offence is arrested or detained without warrant by as officer-in-charge of a
police station, or appears or is brought before a Court, and is prepared at any time while
in the custody of such officer or at any stage of the proceedings before such Court to
give bail, such person shall be released on bail: Provided that such officer of Court, if he
or it thinks fit, may instead of taking bail, from such person, discharge him on his
executing a bond without sureties for his appearance as hereinafter provided:
Provided further, that nothing in this section shall be deemed to affect the provisions of
section 107, subsection (4), or section 117, subsection (3).
497. When bail may be taken in case of non-bailable offence.---(1) When only person
accused of any non-bailable offence is arrested or detained without warrant by an
officer-in-charge of a police station, or appears or is brought before a Court, he may be
released on bail, but he shall not be so released if there appear reasonable grounds for
believing that he has been guilty of an offence punishable with death or imprisonment for
life or imprisonment for ten years:
Provided that the Court may direct that any person under the age of sixteen years or any
woman or any sick or infirm person accused of such an offence be released on bail:
Provided further that a person accused of an offence as aforesaid shall not be released
on bail unless the prosecution has been given notice to show cause why he should not
be so released,
2. If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as
the case may be, that there are not reasonable grounds for believing that the accused
has committed a non-bailable offence, but that there are sufficient grounds for further
inquiry, into his guilt, the accused shall, pending such inquiry, be released on bail, or at
the discretion of such officer or Court, on the execution by him of a bond without sureties

for his appearance as hereinafter provided.,"

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

where there is likelihood of abscondcace of the accused;

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

evidence;

prosecution

(c) where there is danger of the offence being repeated if the accused is
released on bail; and
(d) where the accused is a previous convict.
We know that many under-trial accused of bailable offences and I preventive offences
i.e. offences under sections 10?, 109 and 110, Cr.P.C. have been sent to confined in jails
for want of surety bonds although they, at the discretion of the Court, could be released
on execution by them of bond (personal bond) without surety for their appearance before
the Court. We also find that even in petty cases the Courts/subordinate Courts have
remanded the accused to jail on their failure to produce sureties with the result that
hundreds of under-trial accused who could have easily been released on personal bond
are rotting in the jail for a long time. It is, therefore, directed that in bailable ', cases while
remanding the accused to jail on his failure to furnish surety bail bonds, the trial Court
shall consider the propriety of his release on execution of personal bond. Not only the
first order of judicial remand but also each subsequent order must show that the Court
had really considered the propriety of his release on personal bond. Instead of being
severe to an under-trial accused carrying presumption of innocence with them, it is
better that the Court should be lenient in the, matter of bail, food and medical facilities. It
is to be noted that under section 32 of the Prisons Act, an under-trial prisoner is . entitled
to have clothes and food privately. These facilities should liberally be provided to them till
they are convicted. The jails in our country are 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 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

2010 SCMR 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 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 nonbailable 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.

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
dismissed.

Petition