SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
Present:
Mr. Justice Umar Ata Bandial
Mr. Justice Syed Mansoor Ali Shah
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No.529 of 2021
(Against the order of Lahore High Court, Lahore
dated 19.04.2021, passed in Crl. Misc. No.5350-B/2021)
Iftikhar Ahmad
...…. Petitioner(s)
Versus
The State
…….Respondent(s)
For the petitioner(s): Rana Muhammad Zahid, ASC.
For the State: Mirza Usman, DPG.
For the complainant: Syed Farhad Ali Shah, ASC.
Date of hearing: 14.07.2021
ORDER
Syed Mansoor Ali Shah, J.- Petitioner seeks leave to
appeal against the order dated 19.04.2021, passed by the Lahore
High Court, whereby post arrest bail was denied to him in case FIR
No.789 dated 22.6.2020, registered at Police Station Batapur,
district Lahore, for offences under Sections 420, 468 and 471,
PPC.
2. The case set out in the crime report (FIR), briefly
stated, is that the complainant had rented out a property (a
hospital building) to the petitioner, who while being a tenant
prepared a forged sale deed of the property in his favour and
started claiming to be the owner of the said property.
3. What concerns us, in the present case, is that the
courts below have not exercised their discretion while declining
bail to the petitioner, under subsection (1) of Section 497 CrPC, in
accordance with the principle of law enunciated by this Court
regarding grant of bail in offences not falling within the prohibitory
clause of that subsection. They have viewed the case against the
Crl.P No.529/2021
2
petitioner under sub-section (2) of Section 497 CrPC and simply
relied, for declining bail, on the incriminating material available on
the record to connect the petitioner with the commission of the
offences alleged. All the offences alleged against the petitioner do
not fall within the prohibitory clause of subsection (1) of Section
497 CrPC and thus attract the principle that grant of bail in such
offences is a rule and refusal an exception as authoritatively
enunciated by this Court in several cases.1
4. The main purpose of keeping an under-trial accused in
detention is to secure his attendance at the trial so that the trial is
conducted and concluded expeditiously or to protect and safeguard
the society, if there is an apprehension of repetition of offence or
commission of any other untoward act by the accused. Therefore,
in order to make the case of an accused person fall under the
exception to the rule of grant of bail in offences not covered by the
prohibitory clause of Section 497(1) CrPC, the prosecution has to
essentially show from the material available on the record, such
circumstances that may frustrate any of the said purposes, if the
accused person is released on bail. This Court in the cases of Tariq
Bashir,2 Zafar Iqbal3 and Muhammad Tanveer4 has time and again
illustrated such circumstances or such conduct of the accused
person that may bring his case under the exceptions to the rule of
granting bail.5 They include the likelihood of: (a) his abscondence
to escape trial; (b) his tampering with the prosecution evidence or
influencing the prosecution witnesses to obstruct the course of
justice; or (c) his repeating the offence keeping in view his previous
criminal record or the desperate manner in which he has prima
facie acted in the commission of offence alleged. A court which
deals with an application for grant of bail in an offence not falling
within the prohibitory clause of Section 497(1) CrPC must apply its
judicious mind to the facts and circumstances of the case and to
the conduct of the accused person, and decline to exercise the
1
See Tariq Bashir v. State PLD 1995 SC 34; Imtiaz Ahmad v. State PLD 1997 SC 545; Subhan
Khan v. State 2002 SCMR 1797; Zafar Iqbal v. Muhammad Anwar 2009 SCMR 1488;
Muhammad Tanveer v. State PLD 2017 SC 733.
2
Tariq Bashir v. State PLD 1995 SC 34 (2-MB).
3
Zafar Iqbal v. Muhammad Anwar 2009 SCMR 1488 (4-MB).
4
Muhammad Tanveer v. State PLD 2017 SC 733 (3-MB).
5
See cases ibid.
Crl.P No.529/2021
3
discretion of granting bail to him in such offence only when it finds
any of the above noted circumstances or some other striking
circumstance that impinges on the proceedings of the trial or poses
a threat or danger to the society, justifying his case within the
exception to the rule, as the circumstances mentioned above are
not exhaustive and the facts and circumstances of each case are to
be evaluated for application of the said principle. This Court has
already cautioned the courts below in Muhammad Tanveer case6,
on not following the said principle, in the following terms:
Once this Court has held in categorical terms that grant of
bail in offences not falling within the prohibitory limb of
section 497, Cr.P.C. shall be a rule and refusal shall be an
exception, then the Courts of the country should follow this
principle in its letter and spirit because principles of law
enunciated by this Court are constitutionally binding
[under Article 189] on all Courts throughout the country
including the Special Tribunals and Special Courts.
5. In the present case, neither the courts below,
including the learned High Court, have mentioned any
circumstance that may bring the case of the petitioner under the
exception of declining bail in offences not falling within the
prohibitory clause of Section 497(1) CrPC nor the learned counsel
for the State and the learned counsel for the complainant could
show us any such circumstance or conduct of the petitioner that
would bring the case of the petitioner under exception to the rule
of granting bail in such offences. The courts below, including the
learned High Court, have failed to adhere to the principle of law
enunciated by this Court for exercise of discretion to grant bail in
offences not falling within the prohibitory clause of Section 497(1),
CrPC. The impugned order passed by the learned High Court is
thus not sustainable under the law and calls for interference by
this Court. The petition is, therefore, converted into appeal and
allowed: the impugned order is set aside and the application of the
petitioner for grant of post arrest bail is accepted. Resultantly, the
petitioner is admitted to post-arrest bail subject to his furnishing
bail bond in the sum of Rs.500,000/- with two sureties in the like
amount to the satisfaction of the trial court.
6
Muhammad Tanveer v. State PLD 2017 SC 733.
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6. Needless to say that the observations made in this
order are of tentative nature and shall not influence the trial court
while concluding the case. The learned trial court is to
expeditiously proceed with the trial in accordance with law, and in
case of abuse or misuse of the concession of bail by the petitioner,
including causing delay in conclusion of the trial, the prosecution
may approach the competent court for cancellation of bail under
Section 497(5), CrPC.
Judge
Judge
Islamabad,
14th July, 2021.
Approved for reporting Judge
Sadaqat
