IN THE SUPREME COURT OF PAKISTAN  
(Appellate Jurisdiction) 
 
 
 
 
 
PRESENT: 
MR. JUSTICE GULZAR AHMED 
MR. JUSTICE DOST MUHAMMAD KHAN  
MR. JUSTICE FAISAL ARAB 
 
 
Criminal Petition No.634 of 2015 
(On appeal from the judgment dated 
8.7.2015 passed by the Lahore High 
Court, Multan Bench in Crl.A.NO.8/15)) 
 
Soba Khan 
…Petitioner 
Versus  
The State and another 
..Respondents  
 
For the petitioner: 
 
Sardar Khurram Latif Khosa, ASC 
 
 
 
 
 
Syed Rifaqat Hussain Shah, AOR 
 
For the State: 
 
 
Mr. Asjad Javed Goral, APG, Pb. 
 
Complainant: 
 
 
N.R. 
 
Date of hearing:  
 
4.3.2016 
 
 
 
 
  
JUDGEMNT  
 
 
  
Dost Muhammad Khan, J.—  
CMA NO.952/15  for condonation of delay is allowed.  
Crl.P.634/15: The petitioner, Soba Khan, s/o Khan Muhammad has 
sought leave to appeal against the order/judgment of the learned 
Single Judge of the Lahore High Court, Multan Bench dated 8.7.2015 
whereby, during pendency of his appeal against conviction and life 
imprisonment awarded to him by the Trial Court, his petition for grant 
of bail by suspending his sentence till disposal of the appeal was 
dismissed. 
 
We have heard Sardar Khurram Latif Khosa, learned ASC for the 
petitioner, Mr. Asjad Javed Goral, learned Additional Prosecutor 
General, Punjab while the complainant has left the country and was 
not represented.  
Crl.P.634/15 
2 
2. 
 
The petitioner along with five co-accused were charged for 
effectively firing at the deceased namely Ghulam Mustafa, uncle of the 
complainant, namely, Allah Yar and causing his death while other two 
co-accused namely, Amir Bakhsh and Yar Muhammad were charged 
for conspiracy/abetment for the crime. Allegedly the occurrence took 
place at 5:30 pm while the report of the crime was lodged at the spot 
with S.I. Farid Bakhsh at 7:30 pm, on 11.04.2012, the day on which 
the tragedy took place.  
3. 
 
Learned ASC for the petitioner vehemently contended that 
the impugned order/judgment of the learned Judge of the Lahore High 
Court has altogether thwarted the way of grant of bail in post 
conviction case, which is not in consonance with the provisions of 
S.426 Cr.P.C. empowering the Appellate Court to grant bail to the 
convict by suspending his sentence and that, the mere view of the 
learned Judge that the points raised before him relate to deeper 
appreciation of evidence was based on misconception. No innocent 
person shall be left to rot in Jail if his case is fit for grant of bail, by 
way of suspension of his sentence because if in the long run he is 
acquitted like his co-accused then, he cannot be compensated for the 
long incarceration in Jail.  
 4. 
 
Learned State Counsel for the Government of Punjab 
defended the impugned order/judgment of the learned Single Judge of 
the Lahore High Court on the same grounds, given therein. 
5. 
 
In the instant case, six accused in all were charged and it 
is alleged that all of them encircled the deceased and fired at him after 
one another with quick succession, hitting him on different parts of his 
body.  
Crl.P.634/15 
3 
6. 
 
Learned ASC for the petitioner invited our attention to the 
postmortem report and the pictorial, annexed therewith, which 
contradict the ocular account, because the petitioner and the 
absconding co-accused have been attributed inflicting injuries on left 
neck of the deceased and the other acquitted accused has been 
attributed firing at the deceased which hit him on the back of his neck. 
The autopsy report and the pictorial, both undeniably reveal that the 
deceased has sustained only one firearm entry wound on the left side 
of neck while there are two exit wounds, one on the right side of the 
neck and the other on the lateral top of right shoulder, above the 
armpit.  
7. 
 
It was stated at the bar that the majority of the accused, 
charged in the FIR were declared innocent in two consecutive 
investigations, conducted by the police; the one initially carried out by 
the first investigating officer and the second one on the application of 
the complainant, thus they were not recommended for trial and were 
placed in column No.II of the “Chalan” however, on a private 
complaint, lodged by the complainant with inordinate delay, the 
learned Trial Court took cognizance of it, after getting report from the 
Magistrate, who held inquiry into the matter and summoned all the 
accused, charged in the FIR to face the trial.  
8. 
 
True that the principle of law is well settled that police 
opinion, even conclusive in nature, is not binding on the Court and it 
may disagree with the same but for the cogent reasons to be 
recorded. However, as it appears from the record, the learned Trial 
Judge has omitted to record such reasons.  
Crl.P.634/15 
4 
9. 
 The next crucial point in the matter is that, according to the 
allegations contained in the FIR and the complaint lodged with 
considerable delay, the crime was committed by all members of the 
unlawful assembly and each one of them participated in the crime, 
playing effective and active role of causing injuries to the deceased 
and evidence recorded at the trial is also the same so much so that 
one of the acquitted co-accused who has been attributed similar fatal 
injury like the petitioner, has been acquitted. Such a decision was 
taken by the Trial Court despite applicability of the provision of S.149 
PPC attracting vicarious liability to each member of the unlawful 
assembly committing cognizable offence in prosecution of common 
object of that assembly. This provision further states that even a 
member of such assembly having simple knowledge that the offence 
was likely to be committed in prosecution of that object, shall be 
deemed to be guilty for that offence. This criminal liability is judicially 
phrased as, “A vicarious liability”.  
10. 
 
It is indeed disturbing feature that similarly charged 
accused have been acquitted on the same set of evidence but the 
petitioner was convicted alone because the injury on the neck was 
found to be one of the fatal injuries in the autopsy report by the 
Medico-legal officer, ignoring the fact that for this solitary entry wound 
three persons have been charged including the petitioner. Whether it 
happened in the present case or not, but the probability is definitely 
there in view of the consistent opinion of the Jurists on Medicolegal 
science/jurisprudence that a single bullet after entering the deceased’s 
body either due to its spin, speed or hitting the hard part of the body 
like bone, fragmented and splintered pieces of bullet caused multiple 
exit wounds.  
Crl.P.634/15 
5 
11. 
 
For grant of bail at post conviction stage, the Legislature 
has enacted the provision of S.426 Cr.P.C. which consists of main 
three sub-sections, three clauses and a proviso as well. These are of 
significance and are reproduced below:- 
426. Suspension of sentence pending appeals. Releas on 
bail.-- (1) Pending any appeal by a convicted person, the 
Appellate Court may, for reasons to be recorded by it in writing, 
order that the execution of the sentence or order appealed 
against be suspended and, also, if he is in confinement, that he 
be 
released 
on 
bail 
or 
on 
his 
own 
bond.  
 
  
(2) The power conferred by this section on an Appellate 
Court may be exercised also by the High Court in the case of 
any appeal by a convicted person to a Court subordinate 
thereto.  
 
  
(2B) Where High Court is satisfied that a convicted person 
has been granted special leave to appeal to the the Supreme 
Court against any sentence which it has imposed or maintained, 
it may if it so thinks fit order that pending the appeal the 
sentence or order appealed against be suspended, and also, if 
the said person is in confinement, that he be released on bail.  
 
 
(3) When the appellant is ultimately sentenced to 
imprisonment, or transportation, the time during which he is so 
released shall be excluded in computing the term for which he is 
so sentenced.” 
12. 
 
Like the provisions of S.497 and 498 Cr.P.C. the guiding 
principle and criteria including limitations on the powers of the Court 
not to grant bail in offences punishable with death, or imprisonment 
for life or for ten years falling within the prohibitory limb of S.497 
Cr.P.C. has been omitted from the provision of S.426 Sub-S.(1) 
Cr.P.C.  
Crl.P.634/15 
6 
13. 
 
Considering from a legal angle, the omission of these 
prohibitions, limitations and guidelines is meaningful because the 
Legislature 
did 
not 
deem 
it 
appropriate 
to 
borrow 
the 
guidelines/criteria, provided for grant of bail in the provision of S.497 
Cr.P.C. however, the principle of law has been since long developed by 
the superior courts that the powers of the Appeal Court in granting bail 
at post conviction stage, shall be guided by the criteria/principle 
provided in S.497 Cr.P.C. while in some cases it has been further 
provided that the Court of appeal or a High Court shall not conclusively 
decide the guilt or innocence of the accused, entering upon the re-
appraisal of evidence during pendency of appeal against the conviction 
and sentence, subject of course that the matter relates to liberty of a 
person therefore, it shall not be decided in vacuum and tentative 
assessment of the evidence has to be made. Similarly, a sick or an 
infirm person, whose treatment in prison cannot be managed properly, 
has been released on bail. Also woman, having a suckling baby has 
been granted bail even in life imprisonment cases by suspending her 
sentence.  
14. 
 
In view of above guidelines by the superior courts now the 
provision of S.426 Cr.P.C is considered to be pari-meteria with S.497 
Cr.P.C. The contention that after conviction the initial presumption of 
innocence in favour of the accused disappears, will have little bearing 
on the mind of the Appeal Court because appeal is always construed to 
be continuation of the same proceedings and fair balance is to be 
struck between the two extreme views so that justice is done in all 
circumstances and technicalities of procedural law, shall in no manner 
thwart the same because if in the end of the day after spending years 
in the prison, the convict is acquitted, there is no reparatory 
Crl.P.634/15 
7 
arrangement so far provided in any law including the Criminal 
Procedure Code, to compensate him for incarceration in prison for 
years. While to the contrary sub.S.(3) of S.426 Cr.P.C. provides that 
while computing the sentence of the convict, the period during which 
his sentence was suspended and he was released on bail, shall be 
excluded from the total period of sentence he has to undergo. Thus, 
the State or the complainant is compensated in that manner but for 
the convict no such relief is provided in law.  
15. 
  
In view of the above legal position, emanating from the 
construction of the provision of S.426 Cr.P.C. the Court of Appeal, 
more particularly the High Court, shall take extraordinary caution and 
care not to leave the convict to rot in Jail by undergoing any sentence 
including the life imprisonment and in appropriate cases through 
tentative assessment of the evidence on record if the case of any 
convicted person is found fit for grant of bail then, denial of the same 
would amount to patent injustice.  
16. 
  
What is the tentative assessment of evidence/materials 
and how it differs from deeper appreciation of evidence, has been 
appropriately distinguished from one another in the case of Khalid 
Javed Gillan v. State (PLD 1978 SC 256), however, if on 
reconsideration of the evidence the Court of Appeal is of the view that 
the conviction and sentence is not liable to be maintained then, slightly 
touching the merits of the case without recording conclusive findings 
therein, would be a permissible course in the interest of justice 
because such assessment of evidence would not be binding on the 
court of appeal, or to say the High Court, while hearing the appeal. It 
is for this reason that the Legislature has enacted sub-S.(3) of S.426 
Cr.P.C. envisaging how to the court of appeal to deal with in future 
Crl.P.634/15 
8 
course when the sentence awarded by the Trial Court is maintained. 
Almost similar principle is laid down by the superior courts while 
interpreting the provision of S.497 Cr.P.C. and it has been held in 
numerous reported judgments that the provision of S.426 Cr.P.C. is at 
par and parallel to the provision of S.497 Cr.P.C. where such 
assessment is not prohibited by the words and phrases used therein 
then, why extra limitations and prohibitions shall be read into S.426 
Cr.P.C. The principle that the court of appeal or the High Court while 
considering the suspension of sentence and grant of bail to the convict 
shall take extra care, is not a rule of law but a rule of caution.  
  
Keeping in view the above legal position squarely spelt out after 
placing construction on the provision of S.426 Cr.P.C there appears no 
much difference between the two provisions of law regulating the 
grant of bail at pre and post conviction stages. 
17. 
  
It is by now well settled principle of law relating to re-
appraisal of evidence that once co-accused, similarly charged and 
attributed same and similar role in a particular crime, is acquitted on 
the basis of same set of evidence where the witnesses have 
maintained no regard for truth while deposing on oath to tell the truth 
and nothing else then, ordinarily they shall not be relied upon with 
regard to the other co-accused unless their testimony/evidence is 
strongly corroborated by independent cogent and convincing evidence. 
18. 
  
Keeping in view the above principle of law, tentatively it 
appears to us that the evidence furnished by the prosecution in this 
case appears to be indivisible and in absence of additional 
corroboration of the nature stated above, whether conviction and 
sentence of the petitioner can be maintained on the same evidence, on 
the basis of which the co-accused have been acquitted with the same 
Crl.P.634/15 
9 
and similar role, thus, this fact has entitled the petitioner to the 
concession of bail.  
18. 
  
Accordingly, this petition is converted into appeal and the 
same is allowed. The appellant is granted bail by suspending his 
sentence of life imprisonment in the sum of Rs.4,00,000/- with two 
reliable sureties to the satisfaction of the Additional Registrar 
(Judicial), of Lahore High Court, Multan Bench, Multan.  
 
 
Judge  
 
 
 
Judge  
 
 
 
Judge  
B-V 
Islamabad, the   
4th March, 2016 
Nisar /- 
Approved For Reporting 
