IN THE SUPREME COURT OF PAKISTAN 
(Appellate Jurisdiction) 
 
PRESENT: 
Mr. Justice Mushir Alam 
Mr. Justice Qazi Muhammad Amin Ahmed 
 
 
Criminal Petition No. 958 of 2020 
(Against the order dated 14.4.2020 passed 
by the Peshawar High Court Peshawar in 
Crl. MBA No.106-D/2020)  
 
 
Muhammad Irfan 
 
 
 
…Petitioner(s) 
 
 
 
 
 
Versus 
 
 
The State & another 
 
…Respondent(s) 
 
 
For the Petitioner(s): 
Ch. Muhammad Ayub Arbab Gujar, ASC 
 
For the State: 
Raja Inaam Ameen Minhas,  
 
Ch. Ehtisham ul Haq,  
 
Special Prosecutors, ANF 
 
For the co-accused: 
Khawaja 
Azhar 
Rasheed, 
ASC 
with 
Dilshad Khan, co-accused. 
 
Date of hearing: 
15.10.2020. 
 
ORDER 
 
 
 
    Qazi Muhammad Amin Ahmed, J.- On a tip off, 
Muhammad 
Irfan, 
petitioner, 
accompanied 
by 
Dilshad 
Khan,  
co-accused, was intercepted by a contingent of Anti Narcotic Force, 
Dera Ismail Khan at 13:00 hours on 17.1.2020; upon search, a 
substantial cache of cannabis, weighing 12 kilograms, stealthily 
concealed underneath the rear seat of the vehicle, driven by them, was 
recovered, a portion whereof, was wrapped around the belly of Dilshad 
Khan co-accused. The contraband as well as the vehicle bearing 
Registration No.BHH-686/Sindh were secured vide inventories of even 
date. 
 
After failure with the learned Special Judge, Muhammad Irfan 
petitioner approached the High Court through Crl. MB No.57-D/2020 
for his release on bail, declined by a learned Judge-in-Chamber on 
27.2.2020. The same learned Judge, however, granted bail to Dilshad 
Khan, co-accused in Crl. MBA No.90-D/2020 on 25.3.2020, on the 
basis whereof, the present petitioner approached the High Court for his 
release on bail on the principle of requirement of consistency, 
 Criminal Petition No.985 of 2020 
2
dismissed by another learned Judge-in-Chamber vide order dated 
14.4.2020, impugned before this Court through the titled petition. 
Prima facie found by us to have been released on bail for reasons 
unsustainable in law, Dilshad Khan, co-accused, was sent for vide 
order dated 3.9.2020 to show cause as to why bail granted to him by 
the High Court may not be cancelled.  
 
Khawaja Azhar Rasheed, ASC has defended grant of bail to 
Dilshad Khan co-accused; citing various judgments of this Court, he 
contends that once bail is granted, exceptionally strong grounds, pari 
materia with those applicable to interference with acquittal, are 
required to rescind the concession; he adds that the concession was 
never abused and in the wake of commencement of trial, cancellation 
of bail would be a measure far from being expedient. The Court has 
traditionally exercised restraint to recall freedom, concluded the 
learned counsel. 
 
Ch. Muhammad Ayub Gujjar, ASC, learned counsel for 
Muhammad Irfan petitioner has prayed for equal treatment; according 
to him, the petitioner being identically placed with his co-accused is 
squarely entitled to avail the same concession. “Sauce for the goose is 
sauce for the gander”, asserted the learned counsel.  
 2. 
 
Heard. Record perused. 
 3. 
 
A different regime, somewhat narrowly jacketed, is applied 
to consider the propriety/desirability of cancellation of bail, once 
granted by a competent tribunal, on the assumption that apprehended 
fallout of interim freedom under an interlocutory arrangement, even 
though granted under error, can be indemnified through final 
adjudication, however, the benign concept of condonation cannot be 
applied, without being unconscionable in cases structured upon 
findings inherently anomalous, flawed or mutually destructive and 
inconsistent, more so in category of offences with restrictions statutorily 
heavier on offender’s release on bail. In the present case, the learned 
Judge shortly before releasing Dilshad Khan on bail i.e. 27.2.2020, did 
not feel persuaded to allow bail to Muhammad Irfan petitioner on the 
following grounds: 
“It appears from the record available on file that 
huge quantity of Charas was recovered on 
pointation of the accused/petitioner from the 
motorcar driven by him. The samples of recovered 
contraband 
were 
sent 
to 
the 
FSL 
as 
per 
requirement of law and the report of Chemical 
Examiner is in positive. The offence with which the 
 Criminal Petition No.985 of 2020 
3
accused/petitioner has been charged falls within 
restrictive clause of Section 497 Cr.P.C. 
 
However, the learned Judge proceeded to grant bail to Dilshad Khan  
co-accused even in the absence of his counsel on 25.3.2020 on the 
basis of arguments, never addressed at the bar and for reasons 
diametrically incompatible recorded in the earlier order. Reference to 
the outbreak of Covid-19 Contagion is also beside the mark in view of 
decision dated 7-4-2020 by this Court whereby blanket bails granted by 
all the High Courts on the ground of prevalence of Pandemic were 
cancelled by this Court.  
 
Grant of bail is not an irrevocable charter of freedom; in 
appropriate cases, while exercising charitable restraint, nonetheless, it 
is a judicial responsibility to rectify situations leading towards 
embarrassing anomalies, as is likely to come about in the present case. 
Grant of bail to Dilshad Khan co-accused cannot be countenanced 
while withholding the concession to the co-accused, equally disentitled 
to be released on bail in view of the merits of the case that manifest 
interception of both the accused in a vehicle carrying a substantial 
quantity of the contraband, craftily concealed and recovered on 
disclosures, by both of them, from underneath the seat inside the cabin 
as well as wrapped around the body, bringing their case within the 
‘Prohibition’ provided under section 51 of the Control of Narcotic 
Substances Act, 1997. Failure by the police contingent to register the 
case under the Khyber Pakhtunkhwa Control of Narcotic Substances 
Act, 2019, an error open to rectification, does not by itself mitigate the 
enormity of the crime nor possibly furnish a ground for their release on 
bail. 
 
Overwhelming evidence, prima facie pointed, equally upon both 
the accused, admits no space to contemplate any distinction and as 
such does not allow to countenance the error, therefore, bail granted to 
Dilshad Khan vide order dated 25.3.2020 is cancelled; he shall be taken 
into custody to face indictment. Concomitantly, Criminal Petition 
No.958 of 2020 filed by Muhammad Irfan fails. Leave declined.   
 
 
Judge 
 
 
Judge 
Islamabad, the 
15th October, 2020 
Not approved for reporting 
Azmat/- 
