ISLAMABAD: The Supreme Court has held that granting of bail is a precious right guaranteed under the Constitution and recalling this concession would mean curtailing the liberty of an accused.

“Once the concession of bail is granted by a court of competent jurisdiction then very strong and exceptional grounds will be required to hamper the concession extended to the accused otherwise clothed with free life,” observed Justice Sayyed Mazahar Ali Akbar Naqvi in a recent judgement.

Justice Naqvi was a member of a three-judge bench also consisting of Justice Umar Ata Bandial and Justice Mazhar Alam Khan Miankhel. The bench had taken up an appeal moved by Sharif Khan against the Peshawar High Court’s (PHC) Oct 1 order. The petitioner had invoked the jurisdiction of the apex court to seek post-arrest bail in the interest of safe administrative of criminal justice.

The petitioner was facing an offence under Section 302/34 of the Pakistan Penal Code (PPC) registered with the Tajori police station in Lakki Marwat district. All the accused after having committed the offence decamped from the place of occurrence, whereas the motive behind it was a previous dispute over a landed property.

Apex court accepts appeal against PHC verdict, orders releasing accused on bail

The petitioner applied for the post-arrest bail before a trial court which was allowed on July 27, but the complainant challenged the order in the PHC which recalled the bail on Oct 1.

Authored by Justice Mazahar Naqvi, the judgement acknowledged that though the petitioner was nominated in the crime as one of the assailants, he surrendered himself before the local police and pleaded his innocence while raising plea of alibi.

It was an admitted fact that the allegation against all the accused persons was generalized in nature and there was no specific injury attributed to anyone of the assailants, the judgment explained, adding that these aspects were taken into consideration by the trial court while granting the post-arrest bail to the petitioner.

Citing the 1995 Supreme Court verdict in Tariq Bashir case, Justice Naqvi recalled that the apex court had held that consideration for grant of bail and for cancellation of the same were altogether different.

“Once the bail is granted by a court of competent jurisdiction, then strong and exceptional grounds would be required for the cancellation,” the court had held, adding that to deprive a person on post-arrest bail of the liberty was a most serious step to be taken and there was no legal compulsion to cancel the bail of the accused who had allegedly committed crime punishable with death, imprisonment for life or imprisonment for 10 years.

Similarly, the 2020 SC judgement in Samiullah case had handed down a set of principles to recall a bail provided the bail-granting order was patently illegal, erroneous, factually incorrect and had resulted in miscarriage of justice, or the accused had misused the concession of bail, or had tried to hamper prosecution evidence by persuading or pressurising prosecution witnesses or there was a likelihood of absconsion of the accused beyond the jurisdiction of court, or the accused had attempted to interfere with the smooth course of investigation.

The principles also include that the accused has misused his liberty while indulging into similar offence or some fresh facts and material has been collected during the course of investigation which tends to establish guilt of the accused.

Justice Naqvi observed that ordinarily the superior courts were hesitant to interfere in the order extending concessions of bail, rather they may have showed reluctance to intervene in such manners.

The apex court accepted the appeal and ordered releasing the accused on bail subject to furnishing of Rs100,000 with two surety bonds in the like amount to the satisfaction of the trial court.

Published in Dawn, December 29th, 2020