IN THE SUPREME COURT OF PAKISTAN

(Appellate Jurisdiction)

PRESENT:
MR. JUSTICE JAWWAD S. KHAWAJA, HCJ
MR. JUSTICE DOST MUHAMMAD KHAN
MR. JUSTICE QAZI FAEZ ISA

Criminal Petition No.488 of 2015

(Against the order dated 5.6.2015 of
the Lahore High Court, Lahore passed
in Crl. Misc. No.5654-B of 2015)

Zaigham Ashraf
… Petitioner(s)

Versus

The State, etc.

… Respondent(s)

For the petitioner(s): Ms. Bushra Qamar, ASC

Syed Rafaqat Hussain Shah, AOR

For the State: Ch. Zubair Ahmed Farooq, Addl. PG

Mr. M. Hanif, SI, P.S. Malakwal.

For the complainant: Rai Muhammad Nawaz Kharal, ASC

Date of hearing: 19.8.2015

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 u/Ss.302, 324, 148, 149

and sections 337-F(iii), 120-B and 109 PPC, by PS Malakwal, District

Mandi Bahauddin.

2. Mst. Kiran Tanveer w/o 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,

Crl.P..488/2015 2

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

Crl.P..488/2015 3

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 u/Ss. 109 and 120-B PPC 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 S.109 and 120-B PPC 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
Crl.P..488/2015 4

prosecution witness to be man of unimpeachable

character for purpose of bail, however, hostile
relationship between parties circumstances 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 u/Ss. 109 and 120-

B PPC.

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.”
Crl.P..488/2015 5

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

Crl.P..488/2015 6

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 u/Ss. 109 and 120-B PPC. 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 sub-section (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.
Crl.P..488/2015 7

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
PPC (Sections 337-F(iii), 120-B and 109 PPC 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.

Chief Justice

Judge

Judge
Islamabad, the
19th August, 2015
Nisar/’’
‘Approved for reporting’