IN THE SUPREME COURT OF PAKISTAN

(Appellate Jurisdiction)

PRESENT:
Mr. Justice Faisal Arab
Mr. Justice Sajjad Ali Shah

CRIMINAL PETITION NO.105-K OF 2020

(Against the order dated 19.05.2020 of the
High Court of Sindh, Karachi passed in
Criminal Bail Application No.131 of 2020)

Sidra Abbas
…Petitioner(s)
Versus
The State and another
…Respondent(s)

For the Petitioner(s): Mr. Faisal Siddiqui, ASC

For the State: Mr. Hussain Bux Baloch, Additional

Prosecutor General

For Respondent No.2: Mr. Fareed Ahmed A. Dayo, ASC

Date of Hearing: 10.09.2020

…
ORDER

SAJJAD ALI SHAH, J.- The respondent, Adil Zaman,

accused of Crime No.382/2019 under Section 302/34 PPC

registered at Police Station Darakhshan, Karachi was declined

post-arrest bail by the Court of first instance for the following

reasons:-

“Complainant Mst. Sidra Abbas has alleged in

FIR that on the evening/night of 09.07.2019
she was available at her house when at about
2038 wife of PW Umer Rehan via phone
informed her that Mureed Abbas had been
shot by accused Atif Zaman at his office, on
that complainant reached at spot and found
her husband in pool of blood to whom she
with help of her father-in-law shifted to JPMC
Hospital for treatment where MLO declared
the Mureed Abbas dead. Complainant further
alleged in FIR that accused Atif Zaman had
also committed murder of one Khizer Hayat
on the same night. In FIR, motive of accused
Atif Zaman behind murders was stated to be
Criminal Petition No.105-K of 2020 -: 2 :-

monetary dispute amongst deceased and

accused Atif Zaman. Per averments of FIR,
the complainant was not present at spot at
the time of both alleged incidents of murders,
therefore, allegations against the accused are
required to be ascertained through the
material/evidence collected during
investigation. After lodgment of First
Information Report, IO had recorded 161
Cr.P.C. statements of OW Umer Rehan and
Usama, who were present at the office
accused Atif Zaman at the time of
occurrence, and both PWs in their 161
Cr.P.C. statements stated that the present
applicant/accused was accompanied with
accused Atif Zaman rather caught hold of PW
Umer Rehan when he beseeched for life.
Likewise the witnesses of the incident of
murder of Khizer Hayat namely Imtiaz and
Muhammad Ilyas in their 161 Cr.P.C.
statements stated that one unknown man
had joined the accused Atif Zaman soon after
firing upon Khizer Hayat at the spot and later
on during Identification Parade proceedings
PWs identified the applicant/accused to be
the same person. The crime weapon allegedly
recovered from the possession of accused Atif
Zaman is the licensed Pistol of the
applicant/accused and such verification
letters of Home Department are available with
the police papers. The company of the
applicant/accused with co-accused and his
presence at the both instances i.e. places of
first murder of Khizer Hayat and subsequent
murder of Mureed Abbas show that he had
been in league with co-accused Atif Zaman in
committing murders, therefore, material so
available with the prosecution in shape of
161 Cr.P.C. & 164 Cr.P.C. statements,
Identification Parade proceedings, license of
the crime weapon in the name of the
applicant/accused and further registration of
FIR No.398/2019 of P.S. Darakhshan under
section 25 Sindh Arms Act, 2013 connects
him with the crime. The accused is charged
with section 302 PPC, as such same falls
within prohibitory clause of 497 Cr.P.C. For
the reasons mentioned hereinabove the
applicant/accused has failed to make
prosecution case against him of further
inquiry, hence bail application merits no
consideration and is hereby dismissed.”

2. It appears that the said accused Adil Zaman

approached the High Court of Sindh which, through impugned

Criminal Petition No.105-K of 2020 -: 3 :-

order, enlarged the accused on bail by holding that the case

against the accused was of further inquiry. The following reasoning

prevailed with the High Court to come to such conclusion:-

“5. Admittedly the complainant is not the

eye-witness of the incident and she had
lodged the FIR on the information received by
her from wife of PW Umar Rehan via phone.
After lodgment of the FIR the Investigating
Officer had recorded 161 Cr.P.C. statements
of PWs namely Umar Rehan and Usama who
were present at the place of incident who
stated that present applicant was
accompanied with accused Atif Zaman.
Similarly witnesses of murder of Khizer Hayat
in their 161 Cr.P.C. statements stated that
one unknown man had joined the accused
Atif Zaman soon after firing. Perusal of record
reveals that prosecution witness have only
leveled the allegation of mere presence and
nothing else against the present applicant.
The complainant has stated in the FIR that
wife of PW Umar Rehan had informed her
through phone about the incident which
means that PW Umar Rehan has relations
with the complainant party therefore false
implication cannot be ruled out. Mere
presence of applicant at the spot with no
specific role does not disentitle him from
concession of bail. Prima facie, case against
applicant appears to be doubtful benefit of
which shall go to the applicant.”

3. The petitioner who is the complainant and wife of

deceased Mureed Abbas seeks leave of this Court against the order

of the High Court.

4. Mr. Faisal Siddiqui, learned counsel appearing for the

petitioner, has argued that two murders were committed within an

interval of half an hour by Atif Zaman, the main accused of the

crime who happens to be the real brother of the respondent Adil

Zaman. Per counsel the sole consideration which prevailed with

the High Court to enlarge the respondent Adil Zaman on bail was

that he was merely present at the scene of crime and that no active

role was assigned to him, but the fact remains that the respondent

had accompanied his brother when the first murder of Khizer

Criminal Petition No.105-K of 2020 -: 4 :-

Hayat was committed as an eye-witness has stated that an

unknown man joined the main accused, Atif Zaman, at the time

when he was escaping from the scene after firing at Khizer Hayat,

and at subsequent stage the unknown man was identified as

respondent, Adil Zaman. Within next half an hour the second

murder of Mureed Abbas was committed by the main accused, Atif

Zaman, and he was again accompanied by respondent Adil Zaman,

which is sufficient to show that they shared common intention.

The counsel has further referred to 161 and 164 Cr.P.C.

statements of an eye-witness of the crime, namely Umar Rehan,

who stated that Atif Zaman in his presence committed murder of

Mureed Abbas. The eye-witness further asserted that he caught

hold of Atif Zaman’s hand in which he was holding pistol and the

co-accused, Adil Zaman, helped to get Atif Zaman’s hand released

from his grip. Per counsel it is an active role and sufficient material

to connect the respondent with the commission of the crime which

was not taken into consideration by the High Court while upsetting

the order of the Trial Court. The counsel further argued that it has

also been established that the pistol used in the crime was

supplied by respondent No.2 as report on record reveals that it was

his licensed pistol, again this fact which prevailed with the Court of

first instance to decline bail to accused Adil Zaman was not

attended rather ignored by the High Court while granting bail.

5. On the other hand, Mr. Farid Ahmed Dayo, learned

counsel appearing for respondent Adil Zaman contended that the

petitioner has failed to meet the parameters laid down by this

Court to seek cancellation of bail. In this regard he has referred to

the judgments of this Court reported as Sami Ullah and another

Vs. Laiq Zada and another (2020 SCMR 1115), Khiyal Saba and
Criminal Petition No.105-K of 2020 -: 5 :-

another Vs. The State and others (2020 SCMR 340) and Nadeem

Vs. The State and another (2016 SCMR 1619). The counsel asserts

that since the respondent has not misused the concession of bail,

therefore, the petition may be dismissed. The counsel has further

contended that though in 164 Cr.P.C. statement eye-witness,

Umar Rehan, stated that respondent, Adil Zaman, has helped the

principal accused in getting release from his grip but such

statement was not made in his earlier 161 Cr.P.C. statement

recorded by the police. He next contended that other factors also

prevailed with the Court to enlarge the respondent on bail and,

therefore, such concession could only be recalled once misuse of

concession is established.

6. We have heard the learned counsel for the respective

parties and perused the record.

7. A careful perusal of the submissions show that the

case law cited by Mr. Dayo is of no help in the circumstances of

this case, as the petitioner is not seeking cancellation of

concession on the ground of its misuse but on the ground that the

order impugned through which bail has been granted is perverse

because the High Court ignored the material available on the

record which was made basis of bail declining order and which

suggests active involvement of the accused Adil Zaman in the

commission of the aforesaid offence. It should not be ignored that

the concept of setting aside the unjustified, illegal, erroneous or

perverse order to recall the concession of bail is altogether different

than the concept of cancelling the bail on the ground that the

accused has misused the concession or misconducted himself or

some new facts requiring cancellation of bail have emerged.

Criminal Petition No.105-K of 2020 -: 6 :-

8. In light of the dictum laid down in Sami Ullah v Laiq

Zada 2020 SCMR 1115 and The State/Anti-Narcotic v Rafique

Ahmed Channa 2010 SCMR 580, it is a settled principle of law that

a bail granting order can be cancelled if the same is perverse. In

legal parlance, a perverse order is defined as an order which is,

inter alia, entirely against the weight of the evidence on record. 1

It is always to be kept in mind that in cases where the court

granting bail ignores relevant material indicating prima facie

involvement of the accused in the commission of crime or takes

into account irrelevant material, which has no relevance to the

question of grant of bail to the accused, then the Court reviewing

such order would be justified in cancelling the bail.

9. A similar definition was relied upon by the Supreme

Court of India in Puran v. Rambilas (2001) 6 SCC 338, wherein it

was held that an order granting bail would be perverse and

contrary to the principles of law if the same was passed by ignoring

material evidence on record and without giving reasons. In the

circumstances of this case, there is no cavil with the proposition,

as is evident from the record, that the only consideration which

prevailed with the High Court to upset the bail-declining order of

the Court of first instance and to enlarge the respondent on bail

was that there is nothing against him except his presence which

could not lead to a conclusion that the respondent shared a

common intention with the principal accused, Atif Zaman.

However, in our opinion, the alleged presence of accused Adil

Zaman with his brother Atif Zaman, the principal accused at both

the crime scenes where two murders one after the other within a

short span of half an hour were committed, coupled with the fact

1Words and Phrases, Permanent Edition, Vol. 32 (Publisher: West

Publishing Co.) pp.-712.
Criminal Petition No.105-K of 2020 -: 7 :-

that both the accused are real brothers and the pistol used in the

crime belongs to accused Adil Zaman, speaks volumes which could

hardly be rated as coincidence Additionally, the observation of the

High Court that the only allegation against respondent No.2 is his

presence at the crime scene also appears to be contrary to record

as the eye-witness, Umar Rehan, has assigned active role of

facilitation to the respondent, Adil Zaman, both in his 161 and 164

Cr.P.C. statements, which fact prevailed as prime consideration

with the Court of first instance to decline the bail to the petitioner.

10. Furthermore, no doubt that it has been settled by this

Court through its numerous pronouncements that the courts

should rarely and in exceptional circumstances interfere with the

bail granting orders. Reference in this regard can be made to Mst.

Noor Habib v Saleem Raza 2009 SCMR 786, Muhammad Azhar v

Dilawar 2009 SCMR 1202 and Ehsan Akbar v The State 2007

SCMR 482. However, one thing which is to be kept in mind is that

in cases where the Court of first instance has through a reasoned

order refused concession of bail to an accused in non-bailable

cases, then the Court of Appeal while reversing such order cannot

simply ignore the reasoning which prevailed with the Court of first

instance while refusing the concession of bail. The Court of appeal

of course exercises concurrent jurisdiction and has all the powers

to review such orders by taking a different view on the same facts if

it finds that the Court of first instance in the circumstances of the

case has failed to exercise its discretion in accordance with the

principles settled by this Court by unnecessarily withholding such

concession. However, the Court while reviewing such order should

not simply ignore the reasoning prevailed with the Court for

declining bail. There is no cavil that discretion should be liberally

Criminal Petition No.105-K of 2020 -: 8 :-

exercised in favour of accused but not to an extent to render the

provisions of Section 497 Cr.P.C. as redundant.

11. In this case, the High Court not only ignored the

reasons that prevailed with the Court of first instance for refusing

the concession of bail to the accused, Adil Zaman, but also did not

consider the material available on record that suggests active role

of the said accused in the commission of the aforesaid offence.

Indeed, the conclusion of the Court of first instance that there was

sufficient material with the prosecution to connect the respondent

with the commission of crime could not have been upset on the

basis of observations contrary to the record. The impugned order,

therefore, is found to be perverse and accordingly set aside. In the

circumstances, we, by converting this petition into an appeal and

allowing the same, cancel the bail granted to the respondent, Adil

Zaman, by the High Court vide order dated 19.05.2020. Needless

to observe that the trial Court would be free to decide the main

case without being influenced from any observation strictly in

accordance with law.

12. These are the reasons of our short order of even date

which reads as follows:

“Heard the Counsel for the parties. For the reasons

to be recorded later, this Criminal Petition is
converted into appeal and allowed. Bail granted by
the High Court to respondent Adil Zaman is hereby
cancelled”.

Judge

Judge
Karachi, the
10th of September, 2020
Not approved for reporting
A. Rehman