IN THE SUPREME COURT OF PAKISTAN  
(Appellate Jurisdiction) 
 
 
PRESENT: 
MR. JUSTICE JAWWAD S. KHAWAJA, HCJ 
MR. JUSTICE DOST MUHAMMAD KHAN 
MR. JUSTICE QAZI FAEZ ISA  
 
 
Criminal Petition No.488 of 2015 
(Against the order dated 5.6.2015 of 
the Lahore High Court, Lahore passed 
in Crl. Misc. No.5654-B of 2015) 
 
 
Zaigham Ashraf  
… 
Petitioner(s) 
 
 
 
 
Versus 
 
The State, etc. 
… 
Respondent(s) 
 
 
For the petitioner(s): 
Ms. Bushra Qamar, ASC 
 
 
 
 
Syed Rafaqat Hussain Shah, AOR 
For the State: 
 
Ch. Zubair Ahmed Farooq, Addl. PG 
 
 
 
 
Mr. M. Hanif, SI, P.S. Malakwal. 
For the complainant: 
Rai Muhammad Nawaz Kharal, ASC 
 
Date of hearing:  
19.8.2015 
 
 
 
 
  
 
JUDGMENT  
 
 
Dost Muhammad Khan, J-.   The petitioner, Zaigham Ashraf, is 
seeking leave against the order of the learned Judge in Chamber of the 
Lahore High Court, Lahore, refusing him grant of bail in Crime No.98 
dated 11.03.2014, registered for offences u/Ss.302, 324, 148, 149 
and sections 337-F(iii), 120-B and 109 PPC, by PS Malakwal, District 
Mandi Bahauddin. 
2. 
  
Mst. Kiran Tanveer w/o Faiz Miran, while reporting the 
crime alleged that, deceased Mst. Ambreen, her younger sister, was 
married to Shahid Imran. The couple was blessed with three male 
children. The husband of the deceased died on 20.10.2012, however, 
Crl.P..488/2015 
 
2 
in his lifetime he had transferred bungalow No.D-5, Block-408, in 
Defence, Lahore, another under-construction house at Gojra and seven 
acres of land to Mst. Ambreen, which caused serious annoyance to the 
accused party. After the death of her husband, the deceased and her 
children were ousted from the house by the accused, who also forcibly 
occupied the above properties, besides, misappropriating dowry 
articles and gold ornaments of the deceased. To that effect a civil suit 
was filed by the deceased which was pending disposal in the Civil 
Court, at Malakwal.  
3. 
 
After attending the hearing of the case, on 11.03.2014, 
the complainant along with the deceased, followed by the two 
witnesses on motorbike, left for home, however, they were intercepted 
by the accused, namely, (i) Muhammad Ashraf (ii) Kamran Ashraf (iii) 
Fakhar Ashraf (iv) Imran Ashraf (v) Zaigham Ashraf (petitioner) (vi) 
Mudassar @ Kalu and three unknown persons, who were duly armed 
with Kalashnikov rifles. Accused Kamran Ashraf, Fakhar Ashraf and 
Zaigham Ashraf made rapid firing with their Kalashnikov rifles at Mst. 
Ambreen who got injured and died, while with the fire shots of 
Mudassar @ Kalu, Khurram Ashraf and Fakhar Ashraf, Altaf Hussain 
(PW) was hit and got injured. The present petitioner also effectively 
fired at Altaf, hitting him on his knee-joint, whereafter all the accused 
fled away. The injured, Altaf Hussain, also succumbed to the injuries 
later.  
 
We have heard the learned ASC for the petitioner, learned 
Additional P.G. for the State as well as the learned ASC for the 
complainant and have perused the record.  
4. 
  
During the course of investigation, the Investigating Officer 
discovered that the present petitioner Zaigham Ashraf, was lodged in 
Abbottabad Prison of KPK in crimes under Articles 3 and 4 of the 
Crl.P..488/2015 
 
3 
Prohibition (Enforcement of Hadd) Order, 1979, PS Cantt., Abbottabad 
and he was in the Prison on the date and time of the present tragedy 
and that, he was released from the Prison on 13.03.2014. The 
Investigating Officer, therefore, verified the record of the Prison and 
made inquiries from the Prison authorities, as a result he charged the 
present petitioner for crimes u/Ss. 109 and 120-B PPC for the 
abetment of the crime and hatching conspiracy with the co-accused to 
commit the crime.  
5. 
  
At the conclusion of the investigation, the charge sheet, 
filed in the Trial Court contained S.109 and 120-B PPC and in this way 
the Prosecution itself has relied upon the plea of alibi of the petitioner 
and he has been implicated for abetment of the crime and offence of 
conspiracy, contradicting the stance of the complainant that the 
petitioner was present on the spot and participated in the crime.   
6. 
  
There is no hard and fast rule that plea of alibi shall not be 
considered at bail stage because while granting or refusing to grant 
bail to an accused person, the Court is not required to see and 
consider the materials/evidence, collected in favour of the Prosecution 
but also to give proper attention to the defence plea, taken by an 
accused person.  
7. 
  
In the case of Khalid Javed Gillan v. The State (PLD 
1978 SC 256), broader principles were laid down with regard to 
accepting the plea of alibi of accused in that case, making tentative 
assessment of the materials brought on record and it was held as 
follows:- 
“S.497— Bail— Assessment of evidence—Court, in 
matters of bail, to go by its assessment of “the common 
course of natural events, human conduct, and public and 
private business, in their relation to the facts of the 
particular case— Prosecution though may prove a 
Crl.P..488/2015 
 
4 
prosecution witness to be man of unimpeachable 
character 
for 
purpose 
of 
bail, 
however, 
hostile 
relationship between parties circumstances not irrelevant 
to Court’s assessment of material produced before it—
Petitioner’s plea of alibi supported by affidavit of a 
disinterested person, a medical practitioner of high 
repute, not having any ostensible connection with 
petitioner—Bail absence of proof of Doctor’s evidence 
being not fit to be relied upon, held, could not be properly 
refused—Impugned order being based on misreading of 
S.497, petitioner ordered to be released on bail.” 
When the bail is ordinarily granted to an accused person, who is 
charged for raising ‘Lalkara’ i.e. abetting the crime then, the case of 
the accused who is not present on the spot and is charged for 
abetment and conspiracy, is certainly placed on better pedestal for 
grant of bail in the absence of strong, cogent and tangible 
evidence/materials, collected by the Prosecution, during the course of 
investigation, connecting his neck with the crime in a reasonable 
manner. The record before us, on careful perusal, does not suggest 
any such evidence, having been brought on record. Therefore, the plea 
of alibi taken by the petitioner, is not only reasonably established at 
the moment but has also been acted upon and believed by the 
Prosecution and why he was charged for abetment u/Ss. 109 and 120-
B PPC. 
8. 
  
Similarly, in the case of Tariq Bashir v. State (PLD 1995 
SC 34) it was held that:-  
“Grant or refusal of bail in cases punishable with death or 
imprisonment for life or for 10 years must be determined 
judiciously having regard to the facts and circumstances 
of each case…Provisions of S.497 Crl.P.C. are not punitive 
in nature as regards offences punishable with death , or 
imprisonment for life, imprisonment for ten years, as 
there is no concept of punishment before judgment in 
law.” 
Crl.P..488/2015 
 
5 
The words/phrase contained in section 497 Cr.P.C. ‘reasonable 
grounds’ to believe is of high import and meaning, requiring the 
Prosecution to show to the Court of law that it is in possession of 
sufficient materials/evidence, constituting ‘Reasonable grounds’ that 
accused has committed an offence falling within the prohibitory limb of 
section 497 Cr.P.C. 
 
To the contrary, the accused’s burden is not that much heavier 
like the Prosecution. He has only to show that the evidence/materials, 
collected by the Prosecution or/and the defence plea taken by him 
create reasonable doubts/suspicion in the Prosecution case and he is 
entitled to avail the benefit of it. True that Court of law is required to 
make only tentative assessment of materials, placed on record by the 
Prosecution and no definite opinion shall be formed, conducting a pre-
trial inquiry or deeply appreciating the evidence on record because 
such exercise is not permissible at bail stage.  
9. 
  
To curtail the liberty of a person is a serious step in law, 
therefore, the Judges shall apply judicial mind with deep thought for 
reaching at a fair and proper conclusion albeit tentatively however, 
this exercise shall not to be carried out in vacuum or in a flimsy and 
casual manner as that will defeat the ends of justice because if the 
accused charged, is ultimately acquitted at the trial then no reparation 
or compensation can be awarded to him for the long incarceration, as 
the provisions of Criminal Procedure Code and the scheme of law on 
the subject do not provide for such arrangements to repair the loss, 
caused to an accused person, detaining him in Jail without just cause 
and reasonable ground. Therefore, extraordinary care and caution 
shall be exercised by the Judges in the course of granting or refusing 
to grant bail to an accused person, charged for offence(s), punishable 
with capital punishment. The Courts are equally required to make 
Crl.P..488/2015 
 
6 
tentative assessment with pure judicial approach of all the materials 
available on record, whether it goes in favour of the Prosecution or in 
favour of the defence before making a decision.  
10. 
  
In the case of Amir v. The State (PLD 1972 SC 277) it 
was held that, “for purposes of bail, law not to be stretched in favour of 
prosecution—Benefit of doubt, if any arising, must go to accused even on bail 
stage”. Similar view was taken in the case of Manzoor v. The State 
(PLD 1972 SC 81). These principles so laid down, are based on 
enunciation of law in interpreting the provision of section 497 Cr.P.C. 
and broader principle of justice. Till date, no departure or deviation 
has been made therefrom by this Court then, these are the principles 
of law and have binding effect and shall be construed as guiding 
principles by all the Courts in the matter of grant or refusal of bail.  
11. 
  
In the instant case, as discussed above, the plea of alibi of 
the accused has not been disbelieved by the Prosecution rather it was 
accepted after due verification from the Prison Authorities and Record, 
and it was for this reason that the present petitioner was subsequently 
charged for crimes u/Ss. 109 and 120-B PPC. Thus, in this way, his 
presence from the crime spot at the time of commission of the present 
crime stands excluded.  
Keeping in view the two conflicting versions; one given by the 
complainant in the FIR and the other by the Investigating Agency 
based on documentary evidence with regard to the plea of alibi, the 
case of the present petitioner has become certainly one of further 
inquiry, falling within the ambit of sub-section (2) of section 497 
Cr.P.C., where grant of bail becomes the right of accused and it is not 
a grace or concession, to be given by the Court. In the absence of any 
exceptional ground or reason, denial of bail in such a case would 
amount to exercise a discretion in a manner, not warranted by law and 
principle of justice.  
Crl.P..488/2015 
 
7 
12. 
  
Accordingly, this petition is converted into appeal and is 
allowed and the petitioner is granted bail in the light of the terms of 
our short order of even date, which is reproduced below:- 
“The petitioner seeks bail in case FIR No.98 dated 
11.3.2014, offence under Sections 302, 324, 148 and 149 
PPC (Sections 337-F(iii), 120-B and 109 PPC were added 
later on), registered with P.S. Malakwal, District Mandi 
Bahauddin.  
 
2. 
For reasons to be recorded, the petitioner is 
allowed bail on furnishing personal bail bonds in the sum 
of Rs.2,00,000/- with two sureties in the like amount to 
the satisfaction of the trial Court. The petition is 
converted into appeal and is allowed. The trial Court shall 
comply with the directions of the High Court in respect of 
early disposal of the case”.  
 
Note:  Needless to remark that the above assessment and 
observations, recorded by us are tentative in nature and the Trial 
Court has to decide the case of the petitioner on the basis of evidence, 
to be recorded at the trial.  
 
 
Chief Justice 
 
 
 
            Judge  
 
 
 
           Judge  
Islamabad, the   
19th August, 2015 
Nisar/’’  
 
‘Approved for reporting’ 
