2016 S C M R 18

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja, C.J., Dost Muhammad Khan and Qazi Faez Isa, JJ

ZAIGHAM ASHRAF---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 488 of 2015, decided on 19th August, 2015.

(Against the order dated 5-6-2015 of the Lahore High Court, Lahore passed in Crl.
Misc. No.5654-B of 2015)

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

----S. 497---Bail---Plea of alibi taken at bail stage, relevance of---No hard and fast rule
existed against considering plea of alibi at bail stage---While granting or refusing to
grant bail to an accused person, the court was not required to see and consider the
material/evidence collected in favour of the prosecution but also had to give proper
attention to the defence plea taken by an accused person.

Khalid Javed Gillan v. The State PLD 1978 SC 256 ref.

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

----S. 497---Bail, refusal of---Words "reasonable grounds" contained in S. 497, Cr.P.C.-

--Meaning---Words "reasonable grounds" as contained in S. 497, Cr.P.C., required the
prosecution to show to the court that it was in possession of sufficient
material/evidence, constituting 'reasonable grounds' that accused had committed an
offence falling within the prohibitory limb of S. 497, Cr.P.C.

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

----S. 497---Bail, grant of---Burden of proof on accused---Scope---For getting the relief

of bail accused only had to show that the evidence/material collected by the
prosecution and/or the defence plea taken by him created reasonable doubt/suspicion in
the prosecution case and he was entitled to avail the benefit of it.

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

----S. 497---Bail, grant/refusal of---Care and caution to be exercised by court when

granting/refusing bail to an accused---To curtail the liberty of a person was a serious
step in law, therefore, the judges should apply judicial mind with deep thought for
reaching at a fair and proper conclusion albeit tentatively---Such exercise should not be
carried out in vacuum or in a flimsy and casual manner as that would defeat the ends of
justice because if the accused charged, was ultimately acquitted at the trial then no
reparation or compensation could be awarded to him for the long incarceration, as the
provisions of Criminal Procedure Code and the scheme of law on the subject did not
provide for such arrangements to repair the loss, caused to an accused person, detained
in jail without just cause and reasonable grounds---Extraordinary care and caution
should, thus, be exercised by the judges in the course of granting or refusing to grant
bail to an accused person, charged for offence(s), punishable with capital punishment.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 324, 109, 148, 149, 337-F (iii) &
120-B---Constitution of Pakistan, Art. 185(3)---Qatl-i-amd, attempt to qatl-i-amd,
abetment, rioting armed with deadly weapons, unlawful assembly, ghayr-jaifah-
mutalahimah, criminal conspiracy---Bail, grant of---Further inquiry---Plea of alibi---
Non-presence of accused at scene of occurrence accepted by the prosecution---
Accused was initially implicated by the complainant for being present at the crime
scene and directly firing at the deceased---During course of investigation, it was
discovered that accused was in prison for some other offence at the time of the
occurrence---As a result the charge sheet filed in the Trial Court contained Ss.109 &
120-B, P.P.C., meaning that the prosecution itself had relied upon the plea of alibi of
the accused, and only charged him for abetment of the crime and criminal conspiracy,
contradicting the stance of the complainant---Presence of accused at the crime spot at
the time of commission of the crime, thus, stood excluded---Keeping in view the two
conflicting versions; one given by the complainant in the FIR and the other by the
investigating agency based on documentary evidence with regard to the plea of alibi,
the case of the accused became one of further inquiry, falling within the ambit of S.
497(2), Cr.P.C.---Accused was granted bail accordingly.

Ms. Bushra Qamar, Advocate Supreme Court and Syed Rafaqat Hussain Shah,
Advocate-on-Record for Petitioner.

Ch. Zubair Ahmed Farooq, Additional PG and M. Hanif, SI, P.S. Malakwal for the
State.

Rai Muhammad Nawaz Kharal, Advocate Supreme Court for the Complainant.

Date of hearing: 19th August, 2015.

JUDGMENT

DOST MUHAMMAD KHAN, J.---The petitioner, Zaigham Ashraf, is seeking leave

against the order of the learned Judge in Chamber of the Lahore High Court, Lahore,
refusing him grant of bail in Crime No.98 dated 11.03.2014, registered for offences
under sections 302, 324, 148, 149 and sections 337-F(iii), 120-B and 109, P.P.C., by PS
Malakwal, District Mandi Bahauddin.
2. Mst. Kiran Tanveer wife of Faiz Miran, while reporting the crime alleged that,
deceased Mst. Ambreen, her younger sister, was married to Shahid Imran. The couple
was blessed with three male children. The husband of the deceased died on 20.10.2012,
however, in his lifetime he had transferred bungalow No.D-5, Block-408, in Defence,
Lahore, another under-construction house at Gojra and seven acres of land to Mst.
Ambreen, which caused serious annoyance to the accused party. After the death of her
husband, the deceased and her children were ousted from the house by the accused,
who also forcibly occupied the above properties, besides, misappropriating dowry
articles and gold ornaments of the deceased. To that effect a civil suit was filed by the
deceased which was pending disposal in the Civil Court, at Malakwal.

3. After attending the hearing of the case, on 11.03.2014, the complainant along with
the deceased, followed by the two witnesses on motorbike, left for home, however,
they were intercepted by the accused, namely, (i) Muhammad Ashraf (ii) Kamran
Ashraf (iii) Fakhar Ashraf (iv) Imran Ashraf (v) Zaigham Ashraf (petitioner) (vi)
Mudassar @ Kalu and three unknown persons, who were duly armed with Kalashnikov
rifles. Accused Kamran Ashraf, Fakhar Ashraf and Zaigham Ashraf made rapid firing
with their Kalashnikov rifles at Mst. Ambreen who got injured and died, while with the
fire shots of Mudassar @ Kalu, Khurram Ashraf and Fakhar Ashraf, Altaf Hussain
(PW) was hit and got injured. The present petitioner also effectively fired at Altaf,
hitting him on his knee-joint, whereafter all the accused fled away. The injured, Altaf
Hussain, also succumbed to the injuries later.
We have heard the learned ASC for the petitioner, learned Additional P.G. for the State
as well as the learned ASC for the complainant and have perused the record.

4. During the course of investigation, the Investigating Officer discovered that the
present petitioner Zaigham Ashraf, was lodged in Abbottabad Prison of KPK in crimes
under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979, PS
Cantt., Abbottabad and he was in the Prison on the date and time of the present tragedy
and that, he was released from the Prison on 13.03.2014. The Investigating Officer,
therefore, verified the record of the Prison and made inquiries from the Prison
authorities, as a result he charged the present petitioner for crimes under sections 109
and 120-B, P.P.C. for the abetment of the crime and hatching conspiracy with the co-
accused to commit the crime.

5. At the conclusion of the investigation, the charge sheet, filed in the Trial Court
contained sections 109 and 120-B, P.P.C. and in this way the Prosecution itself has
relied upon the plea of alibi of the petitioner and he has been implicated for abetment
of the crime and offence of conspiracy, contradicting the stance of the complainant that
the petitioner was present on the spot and participated in the crime.

6. There is no hard and fast rule that plea of alibi shall not be considered at bail stage
because while granting or refusing to grant bail to an accused person, the Court is not
required to see and consider the materials/evidence, collected in favour of the
Prosecution but also to give proper attention to the defence plea, taken by an accused
person.
7. In the case of Khalid Javed Gillan v. The State (PLD 1978 SC 256), broader
principles were laid down with regard to accepting the plea of alibi of accused in that
case, making tentative assessment of the materials brought on record and it was held as
follows:-
"S. 497---Bail---Assessment of evidence---Court, in matters of bail, to go by its
assessment of the common course of natural events, human conduct, and public
and private business, in their relation to the facts of the particular case---
Prosecution though may prove a prosecution witness to be man of
unimpeachable character for purpose of bail, however, hostile relationship
between parties a circumstance not irrelevant to Court's assessment of material
produced before it---Petitioner's plea of alibi supported by affidavit of a
disinterested person, a medical practitioner of high repute, not having any
ostensible connection with petitioner---Bail absence of proof of Doctor's
evidence being not fit to be relied upon, held, could not be properly refused---
Impugned order being based on misreading of S.497, petitioner ordered to be
released on bail."

When the bail is ordinarily granted to an accused person, who is charged for raising
'lalkara' i.e. abetting the crime then, the case of the accused who is not present on the
spot and is charged for abetment and conspiracy, is certainly placed on better pedestal
for grant of bail in the absence of strong, cogent and tangible evidence/materials,
collected by the Prosecution, during the course of investigation, connecting his neck
with the crime in a reasonable manner. The record before us, on careful perusal, does
not suggest any such evidence, having been brought on record. Therefore, the plea of
alibi taken by the petitioner, is not only reasonably established at the moment but has
also been acted upon and believed by the Prosecution and why he was charged for
abetment under sections 109 and 120-B, P.P.C.

8. Similarly, in the case of Tariq Bashir v. State (PLD 1995 SC 34) it was held that:-
"Grant or refusal of bail in cases punishable with death or imprisonment for life
or for 10 years must be determined judiciously having regard to the facts and
circumstances of each case...Provisions of S. 497, Crl.P.C. are not punitive in
nature as regards offences punishable with death, or imprisonment for life,
imprisonment for ten years, as there is no concept of punishment before
judgment in law."

The words/phrase contained in section 497, Cr.P.C. 'reasonable grounds' to believe is of

high import and meaning, requiring the Prosecution to show to the Court of law that it
is in possession of sufficient materials/evidence, constituting 'Reasonable grounds' that
accused has committed an offence falling within the prohibitory limb of section 497,
Cr.P.C.
To the contrary, the accused's burden is not that much heavier like the Prosecution. He
has only to show that the evidence/materials, collected by the Prosecution or/and the
defence plea taken by him create reasonable doubts/suspicion in the Prosecution case
and he is entitled to avail the benefit of it. True that Court of law is required to make
only tentative assessment of materials, placed on record by the Prosecution and no
definite opinion shall be formed, conducting a pre -trial inquiry or deeply appreciating
the evidence on record because such exercise is not permissible at bail stage.
9. To curtail the liberty of a person is a serious step in law, therefore, the Judges shall
apply judicial mind with deep thought for reaching at a fair and proper conclusion
albeit tentatively however, this exercise shall not to be carried out in vacuum or in a
flimsy and casual manner as that will defeat the ends of justice because if the accused
charged, is ultimately acquitted at the trial then no reparation or compensation can be
awarded to him for the long incarceration, as the provisions of Criminal Procedure
Code and the scheme of law on the subject do not provide for such arrangements to
repair the loss, caused to an accused person, detaining him in Jail without just cause
and reasonable ground. Therefore, extraordinary care and caution shall be exercised by
the Judges in the course of granting or refusing to grant bail to an accused person,
charged for offence(s), punishable with capital punishment. The Courts are equally
required to make tentative assessment with pure judicial approach of all the materials
available on record, whether it goes in favour of the Prosecution or in favour of the
defence before making a decision.

10. In the case of Amir v. The State (PLD 1972 SC 277) it was held that, "for purposes
of bail, law not to be stretched in favour of prosecution-Benefit of doubt, if any arising,
must go to accused even on bail stage". Similar view was taken in the case of Manzoor
v. The State (PLD 1972 SC 81). These principles so laid down, are based on
enunciation of law in interpreting the provision of section 497, Cr.P.C. and broader
principle of justice. Till date, no departure or deviation has been made therefrom by
this Court then, these are the principles of law and have binding effect and shall be
construed as guiding principles by all the Courts in the matter of grant or refusal of
bail.

11. In the instant case, as discussed above, the plea of alibi of the accused has not been
disbelieved by the Prosecution rather it was accepted after due verification from the
Prison Authorities and Record, and it was for this reason that the present petitioner was
subsequently charged for crimes under sections 109 and 120-B, P.P.C. Thus, in this
way, his presence from the crime spot at the time of commission of the present crime
stands excluded.
Keeping in view the two conflicting versions; one given by the complainant in the FIR
and the other by the Investigating Agency based on documentary evidence with regard
to the plea of alibi, the case of the present petitioner has become certainly one of
further inquiry, falling within the ambit of subsection (2) of section 497, Cr.P.C., where
grant of bail becomes the right of accused and it is not a grace or concession, to be
given by the Court. In the absence of any exceptional ground or reason, denial of bail
in such a case would amount to exercise a discretion in a manner, not warranted by law
and principle of justice.

12. Accordingly, this petition is converted into appeal and is allowed and the petitioner
is granted bail in the light of the terms of our short order of even date, which is
reproduced below:-
"The petitioner seeks bail in case FIR No.98 dated 11.3.2014, offence under
sections 302, 324, 148 and 149, P.P.C. (sections 337-F(iii), 120-B and 109,
P.P.C. were added later on), registered with P.S. Malakwal, District Mandi
Bahauddin.
 2. For reasons to be recorded, the petitioner is allowed bail on furnishing
personal bail bonds in the sum of Rs.2,00,000/- with two sureties in the like
amount to the satisfaction of the trial Court. The petition is converted into
appeal and is allowed. The trial Court shall comply with the directions of the
High Court in respect of early disposal of the case".

Note: Needless to remark that the above assessment and observations, recorded by us
are tentative in nature and the Trial Court has to decide the case of the petitioner on the
basis of evidence, to be recorded at the trial.

MWA/Z-7/SC Bail granted.

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