ZAHID and another vs THE STATE and another
This matter arises from a petition seeking leave to appeal against the cancellation of the petitioners' bail by the High Court in a murder case, which bail had been initially granted by the Sessions Court. The core legal question concerns the distinct legal principles governing the refusal of bail versus the cancellation of bail under section 497 of the Code of Criminal Procedure 1898, particularly where the accused sustained numerous injuries and no specific overt act or fatal injury was attributed to certain petitioners. The Supreme Court of Pakistan held that the considerations for cancelling bail are fundamentally different from those applicable to refusing bail, and that bail once granted should not be lightly cancelled under subsection (5) of section 497, Cr.P.C. without strong grounds. Consequently, the Court converted the petition into an appeal, allowed bail to the petitioner Zahid who had no injuries and whose bail cancellation was unjustified, while upholding the High Court's order cancelling the bail of the other petitioner, Saeed Mustafa. The key principle laid down is that the threshold and criteria for cancellation of bail are distinct and stricter than those for initial refusal of bail.
- Are the considerations for cancellation of bail different from those for refusal to grant bail under the Code of Criminal Procedure 1898?
- Can bail once granted by a lower court be cancelled without satisfying the principles governing cancellation under subsection (5) of section 497 of the Code of Criminal Procedure 1898?
- Does the absence of an attributed overt act and the presence of injuries on the accused justify the grant or retention of bail in a murder case?
- Section 34, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
- Section 497(1), Code of Criminal Procedure 1898
- Section 497(2), Code of Criminal Procedure 1898
- Section 497(5), Code of Criminal Procedure 1898
ORDER
1. ' MUHAMMAD AFZAL ZULLAH, C.J.---In this bail matter a learned Judge in the High Court cancelled the petitioners' bail in a case of murder. It had earlier been granted by the Sessions Court.
2. ' One factor which had influenced the learned lower Court when granting the bail was that two petitioners had not been attributed any overt act, (as the fatal injury was attributed to another accused) therefore, as it thought, the question of application of section 34, P.P.C. Required further examination. The High Court while commenting upon the approach of the Sessions Court took note of the injuries on the accused and considered this as a proof positive of the fact that there was no doubt about the participation by two of them who were injured. Learned counsel for the petitioners has contended that rule applied by the High Court should at least help one of the petitioners who had no injury. In addition he has vehemently argued that while there was only one blow inflicted on the complainant's side from the petitioners' side, they received numerous injuries at the hands of the complainant's side. He also argued that the benefit of self-defence could have been granted to the petitioners at least for purpose of bail.
3. After hearing all the learned counsel we consider it a fit case for grant of bail to Zahid petitioner by acting on the well-known principles for cancellation of bail attracted under subsection (5) of section 497, Cr.P.C., his bail should not have been cancelled; though we agree with the High Court that the learned Sessions Judge also was not right in granting bail to the accused in this case, in a hurried manner. However, at the same time we observe that the learned Judge in the High Court was not conscious that the considerations for cancellation of bail under section 497, Cr.P.C. Are different from refusal to grant bail claimed under subsection (1) or (2) of section 497, Cr.P.C.
4. ' Accordingly, we convert this petition into appeal and while allowing bail to Zahid petitioner who was found not to have been injured; and vice versa uphold the order of the High Court for cancellation of bail granted to Saeed Mustafa petitioner. He shall surrender to the lawful custody.