Cancellation of Bail in PakistanCancellation of Bail in Pakistan

Cancellation of Bail in Pakistan  (Updated to 2023)

The cancellation of bail (Pre-Arrest and Post-Arrest) in Pakistan is a critical legal matter that requires the court’s careful consideration of various factors. When evaluating a bail application, the court must assess factual correctness to avoid a miscarriage of justice, identify prima facie perverseness of the order, detect patent illegality, and assess whether the order is erroneously wrong and against the principles of granting bail.

You can read our main page on Bail in Pakistan here 

Legal advice on Bail in Pakistan

You can read about the Law on Absconders and Proclaimed Offenders here :

Law on Absconders and Proclaimed offenders in Pakistan

You can read about Bail Under Section 9 of the Control of Narcotics Act 1997 (as amended in 2022 & 2023) here:

Bail Under Section 9 of the Control of Narcotic Substances Act, 1997 (CNS 1997) (Legal Position in 2023)

Updated Note on Bail Cancellation (2023)

Cancellation of Bail (post and pre-arrest in general) in Pakistan: A Synopsis of Recent Decisions

The judicial system in Pakistan, as in many other jurisdictions, recognises the fundamental right to liberty of an individual. However, this right is not absolute and is balanced against the interests of justice, public safety, and the rights of the victims. One of the mechanisms to ensure this balance is the provision of bail and, when necessary, its cancellation. Through an analysis of various cases, we can gain insights into the circumstances under which the courts in Pakistan have deemed it fit to cancel bail.

The following cases shed light on the successful application of cancellation of bail and the relevant provisions of the Pakistan Penal Code (PPC) and Criminal Procedure Code (CPC) involved.

Mian MUHAMMAD FAISAL RASHEED vs State (2019 YLR 2379 LAHORE-HIGH-COURT-LAHORE)

This case involved the issuance of a cheque that was dishonoured by the bank. Despite the trial court’s detailed order granting pre-arrest bail, the High Court allowed the petition for cancellation of bail. The significant aspect here was the absence of any highlighted mala fide or ulterior motive on the part of the complainant or police towards the accused, which the court noted as a condition precedent to award the relief of pre-arrest bail.

RIASAT ALI vs GHULAM HAIDER (2019 PCrLJN 93 LAHORE-HIGH-COURT-LAHORE)

This case shed light on the importance of specific allegations and medical evidence. While one accused was found guilty based on specific allegations and medical evidence, bail was maintained for another accused due to the lack of medical evidence supporting the allegations against him.

BAHRAM vs ZUBAIR AHMED (2019 YLR 2185 KARACHI-HIGH-COURT-SINDH)

The delay in lodging the FIR and the absence of a plausible explanation raised doubts in the prosecution’s story. The court found that the case against the respondents required further inquiry and upheld the grant of pre-arrest bail.

ALI MURAD vs State (2019 YLRN 21 KARACHI-HIGH-COURT-SINDH)

This case emphasised the difference between a ‘counter-version’ and a ‘counter-case’. Even if a counter-case does not exist, the counter-version remains significant, especially during bail considerations.

MOHAMMAD SALEEM vs AAMIR (2019 PLD 9 HIGH-COURT-AZAD-KASHMIR)

The court reiterated that bail could not be withheld as punishment, and a prima facie case requiring further inquiry would generally favour the grant of bail.

Haji GHULAM HUSSAIN vs MUZAMMIL HUSSAIN (2019 YLRN 18 Gilgit-Baltistan Chief Court)

Cross FIRs and pre-existing civil disputes can muddy the waters. The court found that further inquiry was required and upheld the grant of pre-arrest bail.

TAJBAR KHAN vs State (2018 PCrLJ 1096 PESHAWAR-HIGH-COURT)

A long period of absconsion by the accused does not automatically negate their right to bail, especially if the evidence does not strongly link them to the alleged offence.

Dr. ATTA-UR-REHMAN vs State (2018 PCrLJN 47 PESHAWAR-HIGH-COURT)

Mala fide intentions in lodging the FIR and considerable delays can weaken the prosecution’s case and favour the grant of bail.

2023 SCMR 1357 SUPREME-COURT:

In the case of CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU, ISLAMABAD vs. YAR MUHAMMAD SOLANGI, the court dismissed the petition for cancellation of pre-arrest bail. It was observed that the National Accountability Bureau (NAB) didn’t seek the arrest of the accused during the initial inquiry or investigation, making the current request redundant. The accused cooperated fully during the investigation and no longer required further inquiry. Thus, the bail wasn’t cancelled.

2023 SCMR 1 SUPREME-COURT:

AHMED SHAKEEL BHATTI vs. State highlighted the complexities surrounding commercial integrity. While the accused’s cheque was dishonoured, the matter revolved around a commercial transaction, and dishonesty as an ingredient of the offence was not sufficiently proven at this stage. Therefore, the petition for cancellation of bail was dismissed.

2023 YLR 658 QUETTA-HIGH-COURT-BALOCHISTAN:

In the case of Syed ALI AKHTAR vs. Syed MURTAZA, a CCTV footage supported the complainant’s version of the accused causing a firearm injury. Given the gravity of the injury and the available evidence, the bail granted to the accused was recalled.

2023 MLD 1396 LAHORE-HIGH-COURT-LAHORE:

Here, the evidence and statements of the complainant and witnesses were consistent. The act committed by the accused was detrimental to society. Thus, the pre-arrest bail granted to the accused was recalled.

2022 SCMR 1271 SUPREME-COURT:

The delay in FIR registration, suppression of injuries sustained by the accused, and the questionable authenticity of the complainant’s previous case led to the granting of pre-arrest bail to the accused.

2022 SCMR 1168 SUPREME-COURT:

This case revolved around a deed obtained through duress and coercion. The Court found the deed unreliable and cancelled the pre-arrest bail granted to the accused.

2022 SCMR 946 SUPREME-COURT:

A significant factor in this case was the discrepancy between the opinion of the initial medical officer and a Medical Board regarding the severity of the injury. The Medical Board’s opinion was given precedence, leading to the dismissal of the bail cancellation petition.

2022 SCMR 676 SUPREME-COURT:

The Court found the evidence against the accused unconvincing and dismissed the petition for cancellation of bail.

2022 SCMR 660 SUPREME-COURT:

Despite the accused’s non-appearance in the Trial Court, the Court found the reasons for his absence valid and granted pre-arrest bail.

2022 SCMR 640 SUPREME-COURT:

Here, the High Court’s reasoning for granting bail was deemed subjective and unsupported by evidence, leading to the cancellation of bail.

Frequently Cited Grounds for Cancellation of Bail 

1. The Misuse of Concessions

In the case of SIKANDAR ALI QURESHI vs. CHAIRMAN NAB [2022 MLD 811 KARACHI-HIGH-COURT-SINDH], the Court observed that the accused, who had been granted the privilege of pre-arrest bail, refused to adhere to the direct orders of the High Court. His reluctance to proceed with cross-examination resulted in the misuse of the bail concession, leading to its cancellation.

2. Addressing Plea of Alibi

PERVAIZ AHMED vs. SARDAR KHAN [2022 PCrLJN 15 KARACHI-HIGH-COURT-SINDH] highlighted the insufficiency of a plea of alibi when weighed against the prosecution material. The Court reasoned that statements made by independent individuals during investigations, if appearing as defence, cannot override prosecution witnesses.

3. The Importance of Evidence in Connection with Crime

In the matter of MUHAMMAD YASIR MEHMOOD vs. Syed SIBT-E-HAIDER ZAIDI [2022 YLR 1046 ISLAMABAD], the Court emphasised the significance of evidence linking the accused to the crime. The accused’s failure to establish mala fide or ulterior motives against the complainant led to the cancellation of his pre-arrest bail.

4. Presence of Incriminating Material

The case of MUHAMMAD SHAHZAD vs. MUHAMMAD SHAHBAZ [2022 PCrLJ 1442 ISLAMABAD] underlined the importance of incriminating evidence. A Call Data Record (CDR) and witness statements placing the accused at the crime scene were pivotal in the recall of his pre-arrest bail.

5. Avoiding the Law’s Process

In ABID HUSSAIN vs. TASSAWAR HUSSAIN [2021 SCMR 518 SUPREME-COURT], the accused’s repeated evasion from the law’s process made him ineligible for judicial protection, leading to the cancellation of his bail.

6. Proper Evaluation of Facts and Law

The case of State vs. MUHAMMAD SHAHZAD [2021 PCrLJ 713 LAHORE-HIGH-COURT-LAHORE] accentuated the significance of properly evaluating the facts and the relevant laws. Misreading of the facts and neglecting critical evidence can result in the cancellation of pre-arrest bail.

7. The Role of Qualifications and Expertise

In Dr. SHUAIB KAUSAR vs. State [2021 PCrLJ 527 KARACHI-HIGH-COURT-SINDH], the Court found that the accused performed medical procedures beyond his qualifications. This gross negligence and malpractice rendered his plea for pre-arrest bail ineffective.

8. The Age and Nature of Offence in Juvenile Cases

The case of MUHAMMAD TOURAIB vs. MUHAMMAD TAIMOOR KHAN [2021 PCrLJ 1050 ISLAMABAD] focused on juveniles involved in heinous crimes. The Juvenile Justice System Act, 2018, plays a crucial role in determining bail in such cases.

9. Prior Criminal Involvement

The Court, in the case of WALEED ARFAQAT vs. State [2021 MLD 1226 ISLAMABAD], emphasized the significance of an accused’s prior involvement in criminal activities. A history of criminal behaviour can heavily weigh against the accused during bail considerations.

10.Foundations for Bail Cancellation
A recurrent theme in the judgments is the principle that bail can be cancelled if it is found that the order was based on incorrect assumptions or if the accused misuses the liberty granted by bail. In the case of JAVED IQBAL vs. IMTIAZ AHMED [2018 PCrLJN 71 LAHORE-HIGH-COURT-LAHORE], the court observed that the order for pre-arrest bail was premised on a factually incorrect assumption. This was clearly evident when the FIR and the evidence, such as the Medico-legal Certificate and autopsy report, was evaluated.

11.Nature of Crimes and Bail Cancellation
Certain serious crimes, especially those involving life and property, are more susceptible to bail cancellations. For instance, cases related to ‘Qatl-i-amd’ or intentional murder, such as the ones mentioned in MUHAMMAD ISHFAQ vs. State [2017 PCrLJN 71 LAHORE-HIGH-COURT-LAHORE] and State vs. FAKHAR ALAM [2017 YLR 2487 Gilgit-Baltistan Chief Court], often result in stricter scrutiny and a higher probability of bail cancellation.

12. Role of Accused and Conditions for Bail
The role attributed to the accused plays a pivotal role in the decision. If the accused is found to have played an active part in the commission of the crime or if there’s an overt act attributed to them, the chances of bail cancellation surge. This was evident in the case of ALLAH YAR vs. State [2017 YLR 204 LAHORE-HIGH-COURT-LAHORE], where the accused’s failure to meet the conditions of bail (specifically, furnishing bail bonds) resulted in the cancellation of their pre-arrest bail.

13. Delay, Abscondence, and Misuse of Bail
Any delay in trial proceedings attributed to the accused, or if the accused absconds, can be grounds for cancelling bail. The case of MAZHAR HUSSAIN vs. State [2017 SCMR 1936 SUPREME-COURT] underlines this, where the accused’s abscondence led to the cancellation of his bail.

14. Consistency and Treatment of Co-Accused
A crucial principle highlighted in the judgments is the rule of consistency. If co-accused individuals with similar allegations are granted bail, then withholding bail from others could be deemed as prejudicial. This principle was emphasised in the case of SHOAIB AHMED vs. State [2018 YLR 176 KARACHI-HIGH-COURT-SINDH].

15.Misuse of the Concession of Bail: If an accused, after being released on bail, misuses this concession by intimidating witnesses, tampering with evidence, or creating hindrance for the complainant party, the bail can be cancelled.Citation: 2016 MLD 613 QUETTA-HIGH-COURT-BALOCHISTAN

16. Failure to Honour Commitments: If the accused does not respect the commitments made in front of the court, it can be ground for bail cancellation.Citation: 2016 PLD 405 LAHORE-HIGH-COURT-LAHORE

17. Prima Facie Evidence against the Accused: When there’s substantial evidence against the accused, which might not have been available or considered at the time of granting the bail, the bail can be cancelled. Citation: 2016 PCrLJ 137 PESHAWAR-HIGH-COURT

18.Cheating and Fraud: Dishonestly inducing delivery of property, forgery for the purpose of cheating, and using a forged document as genuine have been highlighted in multiple cases. Citation: 2016 PCrLJ 631 LAHORE-HIGH-COURT-LAHORE

19.Hurt and Intimidation: Offences relating to hurt, criminal intimidation, and threats seem to be given significant consideration, especially when the accused’s actions post-bail threaten or harm the complainant or witnesses.Citation: 2016 MLD 613 QUETTA-HIGH-COURT-BALOCHISTAN

20.Nature and Severity of the Crime: The nature of the offence plays a pivotal role in the decision-making process. Cases involving severe offences such as attempt to commit qatl-i-amd, possession and trafficking of narcotics, mischief by fire or explosive substance, etc., often find themselves under stringent scrutiny. [2016 YLR 2305, 2015 PCrLJ 860]

21.Role and Participation of Accused: The extent of the accused’s involvement can be a determining factor. Marginal witnesses or those with minimal roles, especially when not beneficiaries of a forged document, have seen leniency. [2015 MLD 1194]

22.Evidence and its Tampering: The existence of ample evidence connecting the accused to the offence and any potential tampering with evidence can act against the accused’s favour. [2016 YLR 2305]

23. Mala Fide Intentions: The courts are wary of mala fide intentions on part of the complainant or the prosecution. If any ulterior motive is detected, the courts may lean towards granting or confirming bail. [2015 PCrLJ 1469]

24. Rule of Consistency: Consistency is vital. If co-accused with identical roles are granted bail, challenging the bail of one set based on similar grounds is unlikely to be successful. [2015 PCrLJ 1469]

25. Delay and Diligence: Any significant delay in lodging FIRs or pursuing bail applications can influence the court’s decision. [2016 YLR 2305, 2015 PCrLJ 1469]

26.Tax Evasion: Cases related to evasion of sales tax, especially where there’s wilful and deliberate evasion, have been noted. The determination of liability plays a crucial role in these cases. Citation: 2016 SCMR 1540 SUPREME-COURT

27. Crimes with Higher Likelihood of Bail Cancellation:

Certain crimes, given their nature and societal implications, have a higher tendency for bail cancellations:

  • Violent crimes, especially those involving firearms and severe bodily harm. [2016 YLR 2305]
  • Narcotics-related offences, given the societal and health implications. [2015 YLR 568]
  • Crimes involving substantial financial implications or forgery. [2016 YLR 1163, 2016 PCrLJ 717]

Pre Arrest Bail

The concept of pre-arrest bail, often referred to as anticipatory bail, is a significant legal tool to prevent undue harassment and arrest of individuals. The cancellation of such bail is a matter of keen interest, as it touches upon the balance between individual liberty and societal interest in prosecuting alleged crimes. An analysis of various judgments of Pakistan’s courts sheds light on the principles and circumstances that lead to the cancellation of pre-arrest bail.

From the cases reviewed  the following grounds for cancelling pre-arrest bail emerge:

Misuse of the Concession of Bail: For instance, in the case of 2012 PLD 66 ISLAMABAD, the accused’s act of defiance against the court order and misuse of bail led to its cancellation.

False Representation: In 2012 MLD 732 LAHORE-HIGH-COURT-LAHORE, the accused deceitfully obtained an interim order of bail by mentioning an incorrect number of F.I.R, leading to the denial of his bail application.

Serious Allegations: In cases like 2013 YLR 2067 KARACHI-HIGH-COURT-SINDH, the accused’s involvement in facilitating the release of criminals led to the refusal of pre-arrest bail.

Non-cooperation with Investigation: As seen in 2013 PLD 66 ISLAMABAD, where the accused didn’t join the investigation, such non-cooperation can lead to the decline of pre-arrest bail.

Acts of Terrorism: As seen in 2013 PLD 66 ISLAMABAD, where the confinement of Superior Court Judges was deemed an act of terrorism.

Forgery and Cheating: Cases like 2013 MLD 137 KARACHI-HIGH-COURT-SINDH and 2012 PCrLJ 1350 LAHORE-HIGH-COURT-LAHORE demonstrate the court’s stringent stance against forgery and cheating.

Criminal Breach of Trust: As in 2012 YLR 85 LAHORE-HIGH-COURT-LAHORE, misuse of public trust leads to the refusal of pre-arrest bail.

The grounds for cancellation often revolve around misuse or abuse of the concession of bail, such as avoiding arrest or not adhering to the conditions set by the court during the grant of bail. [2011 SCMR 1614 SUPREME-COURT]

Malafides on the part of the accused, like not honouring the agreement of repayment in the context of financial crimes, can lead to the cancellation of bail. [2011 PLD 306 LAHORE-HIGH-COURT-LAHORE]

If the court, upon a tentative assessment of material, finds a strong connection of the accused with the offence, bail can be cancelled. [2011 MLD 93 PESHAWAR-HIGH-COURT]

An analysis of the cases shows that financial crimes, especially those involving dishonoured cheques under S.489-F P.P.C., are prominent in the context of bail cancellations. [2011 PLD 306 LAHORE-HIGH-COURT-LAHORE, 2011 CLD 704 LAHORE-HIGH-COURT-LAHORE]

See also  PPRA Rules on Direct Contracting/Negotiated Tendering

Crimes against women, particularly those affecting the modesty of women, are taken very seriously, and the accused in such cases might find it challenging to retain the concession of bail. [2012 YLR 1651 KARACHI-HIGH-COURT-SINDH]

However, it’s worth noting that the type of crime alone does not determine the cancellation of bail. The conduct of the accused post the grant of bail, the nature of evidence against him, and the potential misuse of bail provisions weigh heavily in judicial considerations.

Connected Provisions of Law:

The primary provision governing the grant and cancellation of pre-arrest bail is Section 497(5) of the Criminal Procedure Code (Cr.P.C.). Additionally, various sections of the Pakistan Penal Code (XLV of 1860), such as Ss.161/409/420, Ss.302/148/149, Ss.452/379/337-F(iii)/148/149, Ss.337-A(iv) & 337-A(i), Ss.324/148/149/114/504, S.406, S.324/34, and Ss.324,447/148/149, highlight the nature of crimes involved in these judgments.

Nature of Crimes and Chances of Bail Cancellation:

From the provided cases, several types of crimes emerge where pre-arrest bail was sought to be cancelled:

Corruption and criminal misconduct by public servants.

Qatl-e-amd (murder).

House-trespass and theft.

Shajjah (causing hurt).

Attempt to commit qatl-e-amd.

Criminal breach of trust.

It’s evident that serious crimes, especially those involving violence or a breach of trust, have a higher likelihood of having their bail cancelled. For instance, in cases where the injury was caused to a non-vital part of the body, the courts seemed more inclined to grant bail. Conversely, in cases of serious breach of trust or where there’s an evident misuse of position, the courts leaned towards cancelling the bail. (Recommended Citations: 2011 YLR 386, 2011 YLR 242, 2011 PCrLJ 1354, 2011 YLR 50, 2011 MLD 1758, 2010 SCMR 1415, 2010 YLR 2259, 2010 PCrLJ 1920, 2010 PCrLJ 1337, 2010 PCrLJ 783.

Nature of Crimes Influencing Cancellation

Upon analysing the cited cases, it is evident that the nature of crimes where bails are more likely to be cancelled are grave and serious in nature. Offences such as double murder, forgery for cheating, theft, criminal breach of trust, and offences that involve substantial financial losses or damages appear to have a higher propensity for bail cancellations.

For instance, in the case of 2010 PCrLJ 1900, the accused’s involvement in theft of valuable articles played a pivotal role in the cancellation of bail. Similarly, in 2009 SCMR 174, the Supreme Court refused bail to an accused found to be a habitual offender of issuing cheques and defrauding people.

Factors Influencing Cancellation

Several factors emerge as decisive in the cancellation of pre-arrest bails:

Suppression of Material Facts: If it is found that the bail was obtained by concealing vital details or facts, such bails are likely to be cancelled. This is evident in 2011 YLR 50 where the bail was cancelled because the accused suppressed key information.

Misuse of Bail Concession: Misuse of the relief granted through bail serves as a ground for its cancellation, as seen in 2010 SCMR 1415.

Judicial Discretion and Commitments: Courts exercise their discretion in granting or cancelling bail. If commitments made to the court (like payment undertakings) are not honoured, it may lead to bail cancellations, as in 2010 MLD 435.

Mala Fide Intentions: In situations where there’s a hint of mala fide intentions on part of the complainant, as seen in 2010 MLD 1530, the court may lean towards not cancelling the bail.

Merits and Demerits of the Case:In the case of 2009 YLR 1360, the court observed that while deciding a pre-arrest bail application, it could not be oblivious to the merits of the case. This suggests that the factual matrix and the substantive merits play a pivotal role in such determinations. Furthermore, in 2009 PCrLJ 1442, the court highlighted the significance of examining the merits even when determining the cancellation of a previously granted bail.

Role and Conduct of the Accused:

The accused’s specific role and conduct in the alleged offence are vital. For instance, in 2009 PCrLJ 1176, where the accused was implicated merely on grounds of being present at the crime scene without any substantial involvement, the court was reluctant to cancel the bail.

Mala Fides and Ulterior Motives:

Several cases accentuate the importance of discerning any mala fide intentions on the complainant’s part. In 2009 YLR 450, the court opined that the bail couldn’t be cancelled merely to satisfy the vendetta of the complainant. Similarly, in 2009 PCrLJ 1442, the possibility of false implications due to mala fides was a significant factor against bail cancellation.

Judicial Discretion and Its Exercise:

The discretion to grant or cancel bail is paramount. However, this discretion should neither be arbitrary nor exercised in a fanciful manner. Cases such as 2009 PLD 427 and 2009 PCrLJ 1302 emphasize that the bail-granting order should not be patently illegal or against the facts of the case.

Prohibitory Clauses and Nature of Offence:

Certain heinous offences have prohibitory clauses, making the grant of bail more stringent. In 2009 SCMR 174, the court underscored that the nature of the offence and its gravity, especially in cases like fraud or forgery, can tilt the balance against the accused.

External Factors and Special Circumstances:Certain external factors, such as pregnancy in the case of 2009 PCrLJ 982, can play a decisive role in the court’s determination.

Crimes with a Higher Chance of Pre-Arrest Bail Cancellation:

Analyzing the aforementioned cases, crimes involving substantial financial fraud, forgery, or where the accused’s role is significantly detrimental, have a higher propensity for bail cancellation. Additionally, cases where the accused has a history of similar offences or where the judicial discretion has been erroneously exercised can also witness bail cancellation.

One fundamental tenet that emerges from these cases is that the considerations for granting bail and cancelling it are distinct. As observed in cases like WASEEM AHMED KHAN vs. State and BADAR MUNIR vs. ALI SAFIYAN, the courts have underscored that pre-arrest bail is an extraordinary remedy. Its extension is primarily for innocent individuals to shield them from potential police harassment or victimisation. However, for its cancellation, compelling reasons or a discovery that the bail-granting order was illegal or fanciful are necessary. Furthermore, the absence of the accused during trial or misconduct, as seen in BASHIR AHMAD vs. HAIDER ALI CH, can also lead to bail cancellation.

Financial Crimes: Cases involving financial deceit, such as those under Section 489-F of the PPC (MUHAMMAD ZAFAR ULLAH KHAN vs. KAMRAN KHAN and Syed MUHAMMAD IDREES BOKHARI vs. ARIF MASOOD), often see a higher scrutiny and a tilt towards bail cancellation.

Crimes involving Serious Bodily Harm: Offences like those under Sections 302, 324, and 337 of the PPC, which involve causing death or serious bodily harm, also lean towards bail cancellation. This is evident from the judgments in cases like MUNEER AHMAD vs. State.

Crimes involving Public Servants: Public servants or government employees involved in crimes, as observed in BASHIR AHMAD vs. HAIDER ALI CH, may find themselves under stricter scrutiny due to the expectation of upholding higher moral standards.

 Jurisdiction and Power of the Court: A recurring theme in these citations is the emphasis on the jurisdiction and power of the court granting bail. In several cases, the court found that the bail was granted by a court having no jurisdiction, leading to its cancellation. This underscores the importance of ensuring that the court granting bail possesses the requisite authority to do so. Citation: 2008 PLD 492 KARACHI-HIGH-COURT-SINDH

Nature and Gravitas of the Crime: The seriousness of the offence plays a crucial role in the decision-making process. Offences that fall within the prohibitory clause of S.497, Cr.P.C., such as those with a punishment of ten years or more, often see a stricter stance from the judiciary. Moreover, heinous crimes, especially those involving violence or large-scale fraud, are less likely to see the accused being granted bail. Citations: 2008 PCrLJ 967 KARACHI-HIGH-COURT-SINDH; 2006 YLR 712 LAHORE-HIGH-COURT-LAHORE

Tampering with Evidence and Hindrance to Investigation: If the accused, while on bail, is found to have tampered with evidence or obstructed the investigation, the courts are likely to cancel the bail. This is evident in several judgements where the accused’s actions post the grant of bail significantly influenced the court’s decision. Citation: 2006 YLR 1678 PESHAWAR-HIGH-COURT

Mala Fide Intentions and False Averments: The courts are vigilant about mala fide intentions, either from the complainant or the accused. If the accused is found to have secured bail on false grounds, such as misrepresenting their age or health condition, the bail is likely to be cancelled. Citations: 2007 MLD 1551 LAHORE-HIGH-COURT-LAHORE; 2006 YLR 18 LAHORE-HIGH-COURT-LAHORE

Implications for Society at Large: In cases where the offence has a broader societal impact, such as drug trafficking or offences causing public unrest, the courts are less inclined to grant bail. The societal implications of the crime play a pivotal role in the court’s deliberations. Citation: 2006 YLR 1436 LAHORE-HIGH-COURT-LAHORE

 Previous History and Conduct of the Accused: The past behaviour and conduct of the accused, especially in relation to the same crime or other serious offences, can work against them. If the accused, while on bail, commits the same crime, the bail is often cancelled. The courts also consider if the accused has been evasive, not joining investigations, or absconding post the grant of bail. Citations: 2007 PLD 602 LAHORE-HIGH-COURT-LAHORE; 2007 YLR 431 LAHORE-HIGH-COURT-LAHORE

Mala Fide Intentions: In several cases, the courts have reiterated that if the arrest is tainted with mala fides or due to ulterior motives, then the accused stands a better chance of obtaining pre-arrest bail. However, if the accused’s actions appear to have mala fide intentions post the grant of bail, it can be grounds for its cancellation (2009 YLR 1270 KARACHI-HIGH-COURT-SINDH).

Delay in Filing and Investigation Gaps: A significant delay in lodging the First Information Report (FIR) without plausible explanation or if the accused has not been joining the investigation can tilt the balance in favour of cancelling the bail (2007 PCRLJ 770 LAHORE-HIGH-COURT-LAHORE).

Severity of Offence: The nature and gravity of the offence play a pivotal role. Offences that are of a heinous nature or where the allegations are grave, especially those falling under the prohibitory clause of S.497 Cr.P.C., are less likely to be granted bail or more likely to have the bail cancelled (2007 YLR 431 LAHORE-HIGH-COURT-LAHORE).

Evidence and Witnesses: If there’s a strong prima facie case against the accused, or if crucial witnesses are available whose testimonies could implicate the accused, the courts might lean towards cancelling the bail (2009 MLD 1 LAHORE-HIGH-COURT-LAHORE).

Financial Misappropriations: Cases involving embezzlement, fraud, or any form of financial misappropriation tend to see a stricter stance by the courts (2009 YLR 1270 KARACHI-HIGH-COURT-SINDH).

Violence and Physical Harm: Offences involving physical harm, especially those leading to grievous injuries, are taken very seriously, and bails are often cancelled (2008 YLR 1852 LAHORE-HIGH-COURT-LAHORE).

Morality-Based Offences: Offences touching upon the morality of society, like Zina or sodomy, especially when backed by evidence, see a stringent approach by the courts (2007 YLR 252 LAHORE-HIGH-COURT-LAHORE).

Specific Role and Involvement: In multiple cases, such as 2005 YLR 632 and 2005 MLD 552, the courts highlighted that when the accused is specifically named with a distinct role in the FIR (First Information Report), it tends to weigh against the grant of bail. A corroborative medico-legal certificate or witness statements that align with the FIR further diminishes the chances of retaining the bail.

Nature of Offence: Certain heinous crimes naturally make the courts more circumspect about granting bail. For instance, offences under the Zina (Enforcement of Hudood) Ordinance, like in the cases 2005 PCrLJ 1816 and 2005 MLD 440, involving allegations of rape or forced illicit relations, especially with minors, are viewed with gravity, leading to cancellation of bail.

Tampering with Evidence: Accused persons who, after obtaining bail, try to influence witnesses or tamper with evidence, often find their bails cancelled. For example, in 2007 PCRLJ 368, the accused’s efforts to suborn witnesses led to the cancellation of his bail.

Mala Fides & False Implication: While mala fides or ulterior motives on the part of the complainant can be a ground for granting bail, as seen in 2005 MLD 432, the opposite is equally true. If the accused’s application for bail is based on false grounds or attempts to mislead the court, it can be cancelled, as discerned from cases like 2005 PCRLJ 1706.

Medical and Documentary Evidence: The court places significant emphasis on medical reports and documentary evidence. In the absence of a corroborative medical report or when there’s a direct contradiction between the FIR and the medical findings, it impacts the bail decision, like in 2006 YLR 1678.

Jurisdiction and Proper Procedure: Courts are particular about the proper exercise of jurisdiction and adherence to procedures. As seen in 2005 MLD 432, when a lower court grants bail without adhering to the provisions of the Criminal Procedure Code, higher courts may intervene and cancel such bails.

Severity of Punishment: Cases where the alleged crime entails capital punishment or severe penalties often see a stricter stance towards granting bail. This is evident in cases like 2005 MLD 552.

Crimes with Higher Chances of Bail Cancellation:From the analysed cases, it’s discernible that severe crimes such as gang rape, offences under the Zina Ordinance, grievous bodily harm, major financial frauds, and those involving lethal weapons are more likely to see bail cancellations.

Specific Allegations and Evidence: In the case 2005 YLR 632, the Trial Court’s observation that the accused hadn’t been attributed any specific role was deemed untenable, given the overwhelming material against them. The use of lethal weapons and corroboration from medico-legal certificates and eyewitness statements made the case strong against the accused.

Question of Morality: The case 2005 PCrLJ 1816 presented an interesting facet. It highlighted the sanctity of marriage and the societal implications of contracting a marriage with two real sisters simultaneously. The accused’s act was deemed immoral and deceptive, leading to the cancellation of pre-arrest bail.

Private Defence and Illicit Relations: The case 2005 PCrLJ 1791 highlighted the aspect of the right to private defence, especially when the victim had alleged illicit relations with the accused’s wife.

Mala fide Intentions: 2005 PCrLJ 1713 emphasized the mala fide intentions of the complainant, which played a crucial role in the decision-making process regarding bail.

Economic Offences: In 2005 PCRLJ 1265, the misuse of cheques (S.489-F, P.P.C.) was highlighted. Economic offences, especially those that defraud the public, are treated severely.

Political Rivalries and Mala Fide: The case 2005 YLR 1791 from Karachi High Court emphasized the importance of mala fide on the part of the prosecution and highlighted that political rivalries could lead to false implications.

Crimes of Heinous Nature: The case 2005 MLD 462 underscored the gravity of heinous crimes, especially when double murders are involved. Such crimes have a higher probability of bail cancellation.

Sexual Offences: In 2005 MLD 440, the crime of Zina-bil-Jabr against a minor was discussed. Such offences, given their grave nature and societal implications, often see bail cancellations.

Fraud and Deception: Economic offences, especially those involving fraud and deception, such as in 2004 PLD 229, are considered severe. Such acts, especially when they harm the public at large or the state’s interests, often see bail cancellations.

Accused’s Conduct and Appearance: In the case 2004 PCRLJ 849, the Supreme Court of Azad Kashmir focused on the accused’s conduct. An accused’s consistent non-appearance despite being granted bail signals potential evasion from the legal process, leading to the cancellation of bail.

Consistency in Witness Statements: 2003 PCrLJ 619 of the Shariat Court of Azad Kashmir stressed the importance of consistent statements from witnesses. When the evidence and the circumstances align, the court may be reluctant to cancel bail.

Severity of the Crime and Direct Allegations: The Peshawar High Court, in 2003 MLD 72, highlighted that the presence of the accused at the crime scene during daylight, the presence of blood-stained earth, and medical evidence supporting the complainant’s version often lead to bail cancellation, especially for grave crimes.

Economic Misappropriation: In a landmark decision 2002 PLD 529, the Supreme Court underscored the gravity of economic offences. Misappropriation of substantial funds, especially when entrusted by a governmental body, is often grounds for cancelling bail, given the public interest involved.

See also  PPRA Rules on Acceptance of Bids/Negotiations

Nature of the Offence and Societal Implications: In the case 2002 YLR 1297 of the Peshawar High Court, the involvement of explosive substances and the potential harm to society weighed heavily against the accused. Such heinous crimes, given the broader societal implications, often see bail cancellations.

Certain types of crimes, especially those of a heinous nature, economic offences, and crimes that have significant societal implications, have a higher likelihood of seeing pre-arrest bail cancellations. The courts, while considering bail applications or cancellations, place significant emphasis on the evidence available, the nature of the crime, societal implications, and any mala fide intentions of the parties involved.The provision of bail, a cornerstone of criminal jurisprudence, acts as a balance between the individual’s right to freedom and the state’s interest in ensuring justice. However, pre-arrest bail, a protective instrument, can be cancelled when circumstances warrant it. Let’s navigate through a series of cases to understand the trends and grounds for the cancellation of pre-arrest bail.

As discerned from the cases, the nature of the crime, the conduct of the accused, the gravity of the offence, potential harm to society, and the presence of compelling evidence play a significant role in the cancellation of pre-arrest bail. Grave offences, economic misappropriations, and crimes with broader societal implications often see a higher rate of bail cancellations. As legal practitioners, understanding these nuances ensures a fair and balanced approach to justice, safeguarding both individual rights and societal interests.

Bail is a fundamental right, but its abuse cannot be tolerated. The courts, while upholding the principle of innocent until proven guilty, also ensure that the justice system isn’t manipulated. By examining the provisions of the PPC and CrPC and interpreting them in light of various judgements, it’s evident that the courts weigh the rights of the accused against the potential harm or threat to the judicial process and the society at large. In recent years, the legal landscape of Pakistan has witnessed numerous cases pertaining to the cancellation of pre-arrest bail. This trend has been particularly evident in decisions handed down by the High Courts across various provinces. To develop a better understanding of the circumstances under which pre-arrest bail is cancelled, we shall delve into various judgements to decipher the underlying principles and the connected provisions of the Pakistan Penal Code (XLV of 1860) and the Criminal Procedure Code (Cr.P.C.).

The cancellation of pre-arrest bail is not a straightforward process. It’s a fine balance of the nature of the offence, the evidence at hand, the conduct of the accused, and the broader interests of justice. The courts, while adhering to the principles of justice, equity, and good conscience, ensure that the rights of the accused are not trampled upon, but at the same time, the sanctity of the legal system is upheld. [Recommended Citations: 2009 MLD 1 LAHORE-HIGH-COURT-LAHORE, 2009 YLR 1270 KARACHI-HIGH-COURT-SINDH, 2008 YLR 1852 LAHORE-HIGH-COURT-LAHORE, 2007 PCRLJ 770 LAHORE-HIGH-COURT-LAHORE, 2007 YLR 431 LAHORE-HIGH-COURT-LAHORE, 2007 YLR 252 LAHORE-HIGH-COURT-LAHORE]

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Below is an older version of this article :

Legal Considerations: In the landmark case of 2010 SCMR 580 concerning Section 497 of the Criminal Procedure Code (Cr. P.C), the court enumerated the following points that must be considered while dealing with a bail application: (a) Reasonable Grounds: The court must determine whether there are reasonable grounds to believe that the accused has committed the charged offense.

Further Enquiry: The court should ascertain whether the case necessitates further inquiry into the guilt of committing a non-bailable offense within the scope of section 497(2) of the Cr.P.C. (c) Special Circumstances: Special consideration should be given to factors such as the accused being a minor, woman, sick, or infirm person. (d) Nature and Gravity of Charge: The nature and gravity of the charge must be assessed. (e) Severity of Punishment: The severity or degree of punishment that might follow upon conviction in the circumstances of the case should be taken into account. (f) Risk of Absconding: The risk of the accused absconding if released on bail. (g) Tampering with Witnesses: The likelihood of witnesses being tampered with. (h) Risk of Repeated Offense: The danger of the alleged offense being continued or repeated. (i) Character and Standing: The character, means, and standing of the accused should be considered. (j) Opportunity to Prepare Defense: The accused must be given an opportunity to prepare their defense. (k) Prolonged Incarceration: If the accused has already been in jail for a considerable period, and the trial is not likely to conclude in the near future, this should be taken into account. (l) Avoiding Punitive Measures: Bail should not be withheld as a form of punishment.

Cancellation of Bail: According to Section 497(5) of the Criminal Procedure Code (V of 1898), the principles for the cancellation of bail differ from those for the grant of bail. Bail may be cancelled if the order is evidently perverse, patently illegal, erroneous, factually incorrect, resulting in a miscarriage of justice, or if it violates the principles for granting bail. In the cases of State v. Khalid Sharif (2006 SCMR 1265) and Ehsan Akbar v. State (2007 SCMR 482), the courts established the grounds for the cancellation of bail under these circumstances.

 The process of evaluating bail applications and considering the cancellation of bail in Pakistan demands a meticulous examination of the facts and legal principles involved. The court’s careful assessment of various factors ensures that justice is served, and the rights of both the accused and the society are protected. Legal precedents play a crucial role in guiding courts in making sound decisions in these complex matters.

(1) Abduction and Zina-bil-jabr (PLJ 1992 Cr.C.(Peshawar) 309):

  • Abductee made a statement under Section 164 Cr.P.C. and charged accused-respondent No.1 with committing Zina-bil-jabr.
  • Factum of adultery proved by medical evidence.
  • Grant of bail to accused-respondent No.1 in such circumstances cannot be justified.
  • Bail of accused-respondent No.1 cancelled.

(2) Offence under Section 380 PPC (PLJ 1993 Cr.C(Lahore) 203):

  • Pre-arrest bail allowed to respondent No.1.
  • Complainant aims at recovering an amount through coercive registration of a criminal case against respondent No.1, to whom he also owes money.
  • Involvement of accused (respondent No.1) not done honestly.
  • Strong and exceptional grounds justifying bail cancellation do not exist.
  • Petition dismissed.

(3) Theft of Transformers (PLJ 1992 Cr.C (Lahore) 221):

  • Bail granted by lower court to respondent No.1, a Foreman of WAPDA.
  • He was involved in stealing transformers and avoided arrest.
  • Giving him premium for the delay in challan submission was not justifiable.
  • Bail recalled.

(4) Offences under Sections 365/342 PPC (PLJ 1992 SC 85):

  • During pendency of bail petition in High Court, respondent secured bail from Magistrate.
  • Accused cannot play around with courts and absolve themselves of liability for acts of their agents or relatives.
  • Bail cannot be allowed in such situations.
  • Bail cancelled.

(5) Offences Against Property (PLJ 1994 Cr.Cr. (Karachi) 413):

  • Bail granted to co-accused of applicant.
  • Alleged recovery of stolen articles and identification of accused by complainant make a prima facie case.
  • Factors not considered by the court in granting bail.
  • Sufficient grounds exist for recalling the bail order.
  • Bail of co-accused of the applicant cancelled.

(6) Possession and Trafficking of Narcotics (PLJ 1993 Cr.C (Lahore) 35):

  • Anwar accused granted bail on the ground of his mother’s sickness.
  • Medical certificate lacks clarity on the disease afflicting the lady.
  • Reckless exercise of power by the Magistrate in granting bail.
  • Illness of a near-one of accused not a valid ground for bail.
  • Bail allowed to Anwar accused recalled/cancelled.

(7) Ground for Bail – Further Inquiry (PLJ 1992 Cr.C. (Peshawar) 305):

  • Bail granted to respondents 1 and 2 on the principle of further inquiry.
  • Court held that the need for further inquiry alone is not sufficient ground for granting bail under Section 497(2) Cr.P.C.
  • An order granting bail must fulfill the condition of having a tentative opinion about the prima facie guilt or innocence of the accused.
  • Accused misused bail by threatening the complainant after their release.
  • Bail cancelled.

(8) Absence of Injuries in Complaint (PLJ 1991 SC 266 and 1991 SCMR 1849):

  • Respondents 2 to 5 suffered injuries according to the medico-legal report, but not mentioned in the complainant’s report.
  • The incident took place on the land of accused-respondent No. 2, but it is not clear whether it was trespassing or not.
  • The finding that the charges against respondents 2 to 5 were bailable was based on the report under Section 173 Cr.P.C.
  • Petition dismissed.

(9) Judicial Discretion in Granting Bail (PLJ 1992 Cr.C.(AJK) 285):

  • The learned Judge entered unnecessary controversy while rejecting and subsequently granting bail to respondent No. 1.
  • The High Court exercised its discretion in granting bail based on the facts and circumstances of the case.
  • No ground to interfere with the impugned order.
  • Petition dismissed.

(10) Disease as Ground for Bail (PLJ 1994 SC 191):

  • Respondent No. 1 suffering from a disease since 1970.
  • He conducted himself as a normal man and only revealed the disease during a double murder case and prolonged abscondance.
  • Disease treatable in jail, and extension of extraordinary concession unwarranted.
  • Bail cancelled.

(11) Armed Unlawful Assembly (PLJ 1994 Cr.C (Peshawar) 193):

  • Respondents 2 and 3 specifically named as members of an unlawful assembly and alleged to be armed with .12 bore guns.
  • Their shots did not hit any victims, but this coincidence is not sufficient ground for bail.
  • Respondents 2 and 3 not entitled to bail.

(12) Bail to Fugitive from Law (PLJ 1993 SC (AJK) 28):

  • Respondent named in FIR but did not court arrest.
  • Pre-arrest bail not confirmed, and he did not surrender to police.
  • Appeared in Court after being a fugitive.
  • Bail application rejected by Additional Zilaee Adalat at Bhimber, and order not challenged.
  • Bail cancelled.

(13) Misuse of Bail Concession (PLJ 1997 Shariat Court (AJK) 8):

  • Bail can be cancelled if accused misuse bail and engage in nefarious activities.
  • Court considers allegations in FIR, statements of eye-witnesses, and incriminating material placed by prosecution.

(14) Ailment as a Ground for Bail (PLJ 1997 Cr.C. (Lahore) 1617):

  • Bail granted on ground of ailment; cannot be cancelled if accused recovers unless other circumstances warrant it.
  • Delay in case due to accused seeking adjournments for defense counsel and not taking proceedings seriously.
  • Discretion on statutory ground not applicable when accused causes delay.
  • Bail cancelled.

(15) Murder Offense (PLJ 1993 Cr.C. (A.J.K.) 166):

  • Material on file insufficient to set aside bail allowed to accused by lower court.
  • High Court can interfere if discretionary orders are arbitrary, capricious, or perverse.
  • Role of accused-respondent to be further inquired into.
  • Bail allowed when further inquiry needed to prove common intention among co-accused.
  • Appeal dismissed.

(16) Medical Certificate as Ground for Bail (PLJ 1996 SC 850):

  • Respondent certified as physically unable to use right hand.
  • High Court observed his participation in the offence needed specific evidence.
  • Observations based on medical certificate, no extraneous circumstances found.
  • Leave refused.

(17) Abduction and Murder (PLJ 1994 Cr.C Lahore 332):

  • Additional Sessions Judge granted pre-arrest bail.
  • Complainant diligently pursued the matter with no unconscionable delay.
  • Mere passage of about 16 months since bail grant not sufficient to reject application.
  • Bail cancelled.

(18) Abduction and Zina-bil-jabr (PLJ 1993 Cr.C (Peshawar) 273):

  • Sessions Judge’s observations linking allegations of zina against respondent No. 1 with co-accused Gulzar not supported by evidence on record.
  • Role of respondent No. 1 in committing zina found to be severer.
  • Abductee’s statements and medical examination connect respondent No. 1 with the charged offense.
  • Plea that challan has been submitted not tenable.
  • Bail cancelled.

(19) Attempt to Murder (PLD 1996 SC):

  • Counsel for petitioner occupied before Supreme Court during hearing for cancellation of bail in High Court.
  • Bail of accused cannot be cancelled without hearing his counsel.
  • Petition converted into appeal, impugned order set aside, and case remanded for hearing of cancellation application before a different Bench.

(19) Bail Granted by Lower Court (PLJ 1992 Cr.C (Lahore) 221):

  • Respondent No. 2, WAPDA employee, granted bail as co-accused’s mother was allegedly on death bed.
  • Ground for bail release found insufficient.
  • Bail of respondent No. 2 recalled.

(20)

Legal Note: Cancellation of Bail on Medical Grounds – Case Reference (2010 S C M R 576)

The grant of bail on medical grounds is not an indefinite privilege but is contingent on the health condition of the accused. If the accused regains health and is found to be physically fit, the bail may be cancelled as it is no longer necessary for the protection of their health. This principle was upheld by the Supreme Court of Pakistan in the case of Muhammad Yousafullah Khan v. State PLD 1995 SC 58.

In the case under consideration (2010 S C M R 576), the High Court had initially granted bail to the accused solely on medical grounds based on a medical certificate issued by the Medical Officer of the concerned prison. However, after more than a year, when the accused appeared before the High Court, he was found to be completely recovered from all the injuries and ailments mentioned in the medical certificate. The accused did not dispute or deny his recovery.

The Supreme Court observed that the earlier medical report had lost its efficacy by the time of the accused’s appearance in court, as he had fully recovered from the health conditions that formed the basis for the grant of bail on medical grounds. The purpose of granting bail on medical grounds had been fulfilled as the accused’s health was no longer at risk in judicial custody.

The court emphasized that bail granted on medical grounds is not a perpetual state bounty that cannot be withdrawn or cancelled. If the accused’s health improves and the need for bail on medical grounds ceases to exist, the bail may be cancelled. The grant of bail on medical grounds is subject to the condition that it is required for the protection of the accused’s health.

Therefore, in the case at hand, the High Court’s decision to cancel the bail of the accused after his recovery was deemed justified and relevant. The purpose for granting bail on medical grounds had been achieved, and the accused was no longer entitled to the concession of bail based on his health condition. As a result, the petition was dismissed, and leave was refused accordingly.

(21)Legal Note: Cancellation of Bail in Case 2009 SCMR 786 – Supreme Court of Pakistan

In the case of 2009 SCMR 786, the Supreme Court of Pakistan addressed the principles and considerations for the cancellation of bail under Section 497(5) of the Criminal Procedure Code (V of 1898) and the relevant provisions of the Penal Code (XLV of 1860).

(a) The court emphasized that the considerations for cancelling bail are distinct from those for granting bail. Once bail has been granted by a competent court of law, strong and exceptional grounds are required for its cancellation. The court must ascertain whether the order granting bail is patently illegal, erroneous, factually incorrect, or has resulted in a miscarriage of justice.

(b) In the specific case under consideration, the accused were named in the First Information Report (F.I.R.) for their active involvement in firing along with others, leading to the murders of two young brothers aged 35 and 32 years. A substantial number of crime-empties were recovered from the scene, and several firearm injuries were found on the bodies of the deceased. The accused were prima facie implicated in the case, leaving no justification for the grant of bail to any of them.

The court further emphasized that any pleas desired to be raised by the accused in their defense could be presented during the trial stage. Granting bail in such a serious offense was not warranted, considering the strong evidence against the accused.

Based on these considerations, the bail granted to the accused by the High Court was cancelled. The court relied on precedents, including Abdul Ghaffar v. Sakhi Sultan and 3 others 1987 SCMR 1556 and Ehsan Akbar v. The State and 2 others 2007 SCMR 482, to support its decision.

In summary, the case of 2009 SCMR 786 highlights the stringent criteria for the cancellation of bail after its grant and emphasizes that the court must carefully assess whether there are strong and exceptional grounds justifying the cancellation. It also underscores the importance of considering the gravity of the charges and the strength of the evidence against the accused while determining the appropriateness of bail.

See also  PPRA Rules Query on Acceptance of Bids/Negotiations

(22) Legal Note: Cancellation of Bail in Case 2004 SCMR 231 – Supreme Court of Pakistan

In the case of 2004 SCMR 231, the Supreme Court of Pakistan addressed the principles and considerations for the cancellation of bail under Section 497(5) of the Criminal Procedure Code (V of 1898) and relevant provisions of the Penal Code (XLV of 1860).

(a) The court emphasized that while granting bail, the High Court had properly exercised its discretion in accordance with established norms of justice. The absence of strong and exceptional grounds warranting interference in the matter indicated that the case was not fit for the cancellation of bail. It was clarified that the considerations for cancelling bail were distinct from those for granting bail, and Section 497(5), Cr.P.C., did not require the court to cancel bail even when the offense was punishable by death or life imprisonment. The court referred to precedents, including Falak Sher v. The State 1979 SCMR 103 and Mian Dad v. The State 1992 SCMR 1289, in support of its stance.

(b) The court also explained that Section 497(1), Cr.P.C., prohibits the grant of bail for offenses punishable with death or imprisonment for 10 years or more. However, Section 497(5), Cr.P.C., does not mandate the court to cancel bail even in cases where the offense is punishable by death or life imprisonment. The court clarified that the discretion of the court under Section 497(5), Cr.P.C., is in line with the principles that apply to the setting aside of orders of acquittal.

In summary, the case of 2004 SCMR 231 highlights that the considerations for cancelling bail are different from those for granting bail. The court’s discretion to cancel bail exists under Section 497(5), Cr.P.C., even in cases where bail might not be permissible under Section 497(1), Cr.P.C. The principles established in this case emphasize the need for a comprehensive analysis of all facts surrounding a case when assessing whether bail should be cancelled.

(23) Legal Note: Cancellation of Bail in Case 2000 SCMR 161 – Supreme Court of Pakistan

In the case of 2000 SCMR 161, the Supreme Court of Pakistan dealt with the principles governing the cancellation of bail under Section 497(5) of the Criminal Procedure Code (V of 1898) and Section 302/34 of the Penal Code (XLV of 1860).

The court emphasized that once bail has been granted, the prosecution must present a strong case for its cancellation, supported not only by mere allegations but also by substantial evidence to prove those allegations. The court clarified that frivolous applications for cancellation of bail, without any substantive basis and only making general allegations, can be dismissed by the court through a short order without delving deep into the facts and arguments.

The court also underscored that the High Court has the jurisdiction to refuse to cancel bail, and the legality or jurisdiction of such an order is not compromised merely because it was passed as a short order. In cases where the very basis of the proceedings has been challenged and found to be mala fide, and the application for cancellation of bail lacks any basis and remains unsubstantiated, it is not necessary for the court to provide detailed reasons for its decision.

In summary, the principles established in the case of 2000 SCMR 161 highlight the importance of presenting substantial evidence when seeking the cancellation of bail. Frivolous applications lacking substantive proof can be dismissed efficiently, and the High Court has the discretion to refuse bail cancellation when the basis of the proceedings is challenged and found to be mala fide.

(24)Legal Note: Grant of Bail in Case 1994 SCMR 1283 – Supreme Court of Pakistan

In the case of 1994 SCMR 1283, the Supreme Court of Pakistan discussed the principles governing the grant of bail under Section 497 of the Criminal Procedure Code (V of 1898) and the exercise of constitutional jurisdiction under Article 199 of the Constitution of Pakistan (1973).

The court clarified that when considering a bail application, the court should tentatively examine the facts and circumstances of the case. The court’s focus should be on determining whether there are reasonable grounds to believe that the accused has committed a non-bailable offense. To ascertain this, the court should not delve into the merits of the case but restrict itself to the material presented by the prosecution. The court should assess whether tangible evidence exists against the accused that, if left unrebutted, could lead to an inference of guilt. Mere allegations or suspicions of a non-bailable offense would not be enough to deny bail; there must be reasonable grounds for such a belief. The term “reasonable grounds” carries more significance than “suspicion,” and strong suspicion alone cannot replace reasonable grounds. It is the prosecution’s responsibility to demonstrate reasonable grounds for believing the accused is guilty. If the court is not satisfied with the material presented, it has the discretion to grant bail.

The court further emphasized that if the actions and proceedings initiated by the police or prosecution are found to be mala fide and intended to extract evidence or information from the accused, the superior courts should not hesitate to intervene and protect the citizen’s liberty. Under Article 199 of the Constitution of Pakistan, the High Court has the power to provide relief to citizens against frivolous and mala fide actions by imposing conditions on the erring authorities and agencies.

Section 497(5) of the Criminal Procedure Code (Cr.P.C.) deals with the cancellation of bail once it has been granted. The principles governing the cancellation of bail have been clarified by various court judgments:

Once bail has been granted, the prosecution must present a strong case for its cancellation, supported by substantive proof, rather than mere allegations. In other words, the burden lies on the prosecution to demonstrate compelling reasons justifying the cancellation of bail. The court should not rely solely on allegations but should have substantial evidence to support such a decision. (Case reference: Not specified)

If an application for the cancellation of bail is frivolous and lacks substance, with only general allegations made without any substantiation, the court has the authority to dismiss the application with a short order without delving deep into the facts and arguments. The High Court has the jurisdiction to refuse to cancel the bail, and the brevity of the order does not render it illegal or lacking jurisdiction. In contested matters, it is desirable for the court to provide detailed reasons for its decisions. However, in cases where the very basis of the proceedings has been challenged and found to be mala fide, and an application for cancellation of bail is made without any genuine basis and on unsubstantiated grounds, a short order of dismissal is sufficient. (Case reference: Not specified)

In summary, the principles established by the court emphasize that the cancellation of bail must be based on strong and compelling grounds supported by substantive evidence. If an application for cancellation lacks merit and is found to be frivolous or mala fide, the court may dismiss it with a short order without going into exhaustive reasoning. The court retains the jurisdiction to refuse cancellation if it finds the application to be without a genuine basis or on unsubstantiated grounds. Also the principles established in the case of 1994 SCMR 1283 emphasize the importance of reasonable grounds for granting bail. The court should not entertain mere suspicions and should protect the citizen’s liberty when actions are found to be mala fide.

(25)Further Considerations for the Cancellation of Bail

The considerations for the cancellation of bail are distinct from those for the grant of bail. Section 497(1) of the Criminal Procedure Code (Cr.P.C.) prohibits the grant of bail for offenses punishable with death or imprisonment of 10 years or more. However, Section 497(5) of the Cr.P.C. does not mandate the automatic cancellation of bail even if the offense is punishable with death or life imprisonment. The court’s discretion under Section 497(5) is akin to the principles applied when setting aside orders of acquittal.

The Supreme Court of Pakistan has established several principles and guidelines regarding the cancellation of bail:

  • The Supreme Court generally does not disturb the tentative opinion expressed by the High Court on the merits of the case during the consideration of bail applications. (Case reference: 1995 SCMR 1765, Haji Gulu Khan v. Gul Draz)
  • The application for cancellation of bail can be filed not only by the state but also by the complainant or a near relative of the deceased. (Case reference: PLJ 1994 Cr.C. (Lah.) 332, Khalid Muhammad v. Abdul Qadir Shah)
  • It is essential to approach the lower courts first for cancellation of bail before moving the High Court. (Case reference: PLD 1984 SC 192, Zia-ul-Hassan)
  • Cancellation of bail can be considered when the recovery of stolen property or misappropriated articles is yet to be made. (Case reference: PLJ 1984 SC 50, Zia-ul-Hassan)
  • The High Court can cancel bail on new grounds that arise subsequently. (Case reference: 1979 SCMR 479, Mehr Ghulam Nabi v. Muhammad Shafiq)
  • The provision of Section 497(5), Cr.P.C. does not bar approaching a higher court for the cancellation of bail. (Case reference: 1979 SCMR 65, Barkat Bibi)
  • In cases where the maximum sentence for the offense may be life imprisonment or 10 years of rigorous imprisonment, bail cannot be canceled if the circumstances suggest that the maximum sentence is not likely to be awarded. (Case references: PLD 1972 SC 277 and 1973 P.Cr.LJ 205, Amir v. State; PLD 1975 Lah. 568, Muhammad Altaf v. Nazir Ahmad)
  • Bail applications should not be decided on their merits when the case is fixed for hearing shortly. (Case reference: PLJ 1989 SC 455, Muhammad Ismail v. Muhammad Rafiq)
  • Cancellation of bail may not be considered when the trial has already started and judgment is about to be pronounced. (Case references: PLJ 1980 SC 147, Mst. Channa Jan v. Muhammad Siddiq; 1989 SCMR 2063, Masood)
  • Delay in filing a cancellation petition may not be used to the advantage of the respondent accused if the case is coming up for hearing before the Supreme Court after a considerable period. (Case reference: 1979 SCMR 66, Barkat Bibi v. Gulzar)
  • The Supreme Court generally does not disturb the tentative opinion expressed by the High Court on the merits of the case during the consideration of bail applications. (Case reference: 1995 SCMR 1765, Haji Gulu Khan v. Gul Draz)
  • The application for cancellation of bail can be filed not only by the state but also by the complainant or a near relative of the deceased. (Case reference: PLJ 1994 Cr.C. (Lah.) 332, Khalid Muhammad v. Abdul Qadir Shah)
  • It is essential to approach the lower courts first for cancellation of bail before moving the High Court. (Case reference: PLD 1984 SC 192, Zia-ul-Hassan)
  • Cancellation of bail can be considered when the recovery of stolen property or misappropriated articles is yet to be made. (Case reference: PLJ 1984 SC 50, Zia-ul-Hassan)
  • The High Court can cancel bail on new grounds that arise subsequently. (Case reference: 1979 SCMR 479, Mehr Ghulam Nabi v. Muhammad Shafiq)
  • The provision of Section 497(5), Cr.P.C. does not bar approaching a higher court for the cancellation of bail. (Case reference: 1979 SCMR 65, Barkat Bibi)
  • In cases where the maximum sentence for the offense may be life imprisonment or 10 years of rigorous imprisonment, bail cannot be canceled if the circumstances suggest that the maximum sentence is not likely to be awarded. (Case references: PLD 1972 SC 277 and 1973 P.Cr.LJ 205, Amir v. State; PLD 1975 Lah. 568, Muhammad Altaf v. Nazir Ahmad)
  • Bail applications should not be decided on their merits when the case is fixed for hearing shortly. (Case reference: PLJ 1989 SC 455, Muhammad Ismail v. Muhammad Rafiq)
  • Cancellation of bail may not be considered when the trial has already started and judgment is about to be pronounced. (Case references: PLJ 1980 SC 147, Mst. Channa Jan v. Muhammad Siddiq; 1989 SCMR 2063, Masood)
  • Delay in filing a cancellation petition may not be used to the advantage of the respondent accused if the case is coming up for hearing before the Supreme Court after a considerable period. (Case reference: 1979 SCMR 66, Barkat Bibi v. Gulzar)
  • Investigation Completed and Challan Put in Court: If the investigation is completed, and the challan (charge sheet) is already submitted in court, the cancellation of bail may not serve any useful purpose. (Case reference: 1976 P.Cr.LJ 193, Shamshad v. Muhammad Arshad etc.)
  • Delay in Filing Cancellation of Bail Application: If the application for cancellation of bail is filed after a significant delay, it may not be considered favorably by the court, especially if there is no abuse of the concession of bail. (Case reference: PLJ 1984 Cr.C. (Kar.) 284, Piaro)
  • Tampering with Evidence: If there is evidence that the accused has tampered with evidence or approached prosecution witnesses to influence their testimony, the court may consider canceling the bail. (Case references: PLD 1975 Lah. 301, Ghulam; 1976 P.Cr.LJ 609, Bashir Hussain v. Sadiq Hussain etc.)
  • Abuse of Liberty: If the accused misuses the liberty granted through bail to threaten or intimidate others, especially witnesses, the court may consider canceling the bail. (Case reference: PLJ 1975 Cr.C. (Lah.) 57, Amir Khan v. Muhammad Iqbal etc.)
  • Delay in Trial: If there is a significant delay in conducting the trial, the court may not cancel the bail merely for the purpose of expediting the trial. (Case reference: (SC) 1977 SCMR 1, Mumtaz v. Sarfaraz etc.)
  • Interim Bail Confirmation: The Supreme Court may confirm interim bail if there is no abuse of the privilege and no misuse of liberty by the accused. (Case references: (SC) 1976 SCMR 360, Shahid Arshad v. Muhammad Naqi Butt; (SC) 1976 SCMR 352, Zaka Ullah etc.)
  • High Court’s Discretion: The Supreme Court does not ordinarily disturb the High Court’s orders unless the reasons given are fanciful or arbitrary, even if the Supreme Court may not fully agree with those reasons. (Case reference: (SC) 1976 SCMR 286, Noor Muhammad v. Abdur Razaq)
  • Expeditious Trial: Instead of canceling bail, the Supreme Court may direct an expeditious trial in certain cases, leaving it to the trial court to cancel bail if the accused is found guilty of a non-bailable offense after examining the eye-witnesses. (Case reference: (SC) 1977 SCMR 1, Mumtaz v. Sarfaraz etc.)

Trial to Commence Shortly: In some cases, when the trial is about to start shortly, the courts may decide not to cancel the bail that had been granted by the High Court. Instead, they may allow the trial to proceed, and the trial court may cancel bail if incriminating evidence is recorded during the trial. (Case references: 1985 SCMR 1691, Mst. Irshad Begum v. Muhammad Afzal; 1988 SCMR 918, Akmal Masih v. Salamat Masih; NLR 1986 Cr. 738, Munshi Khan)

Substantive Proof Required: Bail should not be cancelled merely on the basis of allegations; there should be substantive proof to support the application for cancellation of bail. (Case reference: 1994 SCMR 1283, Govt. of Sindh v. Raeesa Farooq and 5 others)

Discretion to Refuse Bail Cancellation: The High Court has the jurisdiction to refuse to cancel bail, and doing so by passing a short order does not render such order illegal or without jurisdiction. In cases where the very basis of the proceedings has been challenged and found to be mala fide, and the application for cancellation of bail lacks substance or remains unsubstantiated, the High Court may refuse to cancel bail. (Case reference: 1994 SCMR 1283, Govt. of Sindh v. Raeesa Farooq and 5 others)

Surrender Upon Sentencing: In some instances, the accused may be required to surrender voluntarily to serve their sentence after their appeal is pending in the High Court, and the bail has been cancelled by the Supreme Court in a murder case. (Case reference: PLD 1992 S.C. 463, Bashir Ahmed v. Zulfiqar)

By The Josh and Mak Team

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