Syed Musawar Abbas Vs Syed Tahir Abbas Bukhari etc

JI.JDGMENT SIIEET

IN THE PESHAWARHIGH COI]RT,

BAI\IIUBENCH

(Judicial Department)

Cr: : BCA No.48- 8n025

Syed Musawar Abbas.

Versus Syed Tahir Abbas Bukhari etc.

IUDGMENT

Date of hearing 12.09.2025.

For petitioner:- Messrs. Farooq Khan Sokari and Hujat Ullah Khan Marwat, advocates.

For the State:- Mr. Muhammad Asghar khan Ahmadzai, Addl: A.G.

For respondentsi Faqir Mehbub-ul-Hamid and Masood Adnan, advocates.

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ABDAL FA J.-

1.Througlr this bail cancellation petition, Syed Musawar Abbas petitioner (complainant), has called in question tle order dated 29.05.2025 rendered by the leamed Additional Sessions Judge- I, Lakki Marwat, whereby pre-arrest bail application filed by the accused/ respondent, in a criminal case vide F.I.R No.607 dated I1.08.2024 registered ilss 3241337-F(v) P.P.C, at Police Station, Lakki City, District Lak&i Marwat, was

accepted and pre-arrest bail granted to petitioner was confirmed.

2.Allegedly complainant Syed Musawir Abbas on 11.08.2024 in the emergency room of city hospital Lal*i Marwat charged the respondent/accused for effective assault by firing with his Kalashnikov at him while for ineffective upon his companions Syed Ghoyoor Abbas Shah, Syed Zafu Abbas Shah, Syed Noshad Hassan Shah, at about 12:15 hours. DisPute over electricity connection was disclosed as motive for the incident. It is to be mentioned here that respondent also charged the complainant party for beating him and his son in front of their house and snatching his licensed .30 bore pistol vide Naqal Mad No. 24 dated 21.05.2025.

3.Arguments of leamed counsel for the parties and leamed AAG for the State heard and the available record gone through.

4.No doubt mere assertion of a counter- version does not, by itself constitute a cross-case.

The Court is required to make a tentative assessment as to whether the parties, the venue, and the transaction prima facie indicate a single

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occurrence narrated in divergent terms by rival sides. The rationale is that frivolous or concocted counter-cases, which can easily be engineered by the opposite party, cannot be permitted to secure the advantage of the general rule or the benefits ordinarily flowing from a genuine cross-case.

t. When at the direction of this court, the counter version was recorded from the mouth of the accused/respondent Tahir Abbas subsequently that was cancelled by the investigating agency which has been challenged before this Court in writ petition, still pending. Hence, if two views are possible from the evidence then the view favourable to the accused is to be adopted.

Reliance is made on t}te case "Saeed Ullah and L2tohers v. The stute and anothert' [2023 SCMR 13971, the relevant portion of the judgment is:- "6.----It is now well settled principle of law that if two views are possible from the evidence adduced in the case then the view favourable to the accused is to be adopted. Reliance is placed on Saghir Ahmed v. State (2023 SCMR 241) and Sahib Ullah v. The StateQ022 SCMR 1806).---- "

6.With regard to the allegation of ulterior motive and mala fide intent, it is pertinent to note that the occlurence in question took place on

11.08.2024, whereupon the police promptly registered the F.I.R on the report of the complainant against the respondent' However, it is a matter of record that, for registration of his own version, the respondent had to approach this Coutt on two occasions, and ultimately his report was recorded only pursuant to the directions of this Court in contempt proceedings vide judgment dated 21.05.2025 in shape of Naqalmad.It also stands established from the record that there exists a history of numerous litigation between the parties, and several applications, both againit and on behalfofthe accused, are still sub'iudicebefore different forums. In this backdrop, the element of ulterior motive and mala fide on the part of the complainant cannot be altogether ruled out' Reliance in this respect is place on "Murad Khun v Fazal-e-Subhan and qnother" IPLD f983 Supreme Court 821, the relevant portion of the judgment is as follows:-

"The criteria laid down in Hidayat Ullah Khan's case has not undergone any change so far. The three principles laid down therein have to be strictly followed. This power should sparingly be exercised in appropriate cases. The Courts should stictly avoid the exercise of this power at random, which is likely to embarrass the prosecution in investigation as usually is the general

comDlaint. The balance has to be kept and "."h *" has to be dealt wittr on its own merits ......... The Court should seriously aoolv its mind before passing the order of bail. must" however, make it

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"r"-i*.t ctear that Courts are the guardians of liberty, of citizens. The abuse of power by the police to roDe in innocent persons in order to humiliate them and to cause ineparable loss to their reputation should be equally kept in view. The golden principles in Hidayat Ullah Khan s case must strictlY be followed."

7.These taken

, render the case of the

accused/respondent one of further inquiry, thereby entitling him to the concession sought' E. As regards the merits of the case at this preliminary stage, it is by now a settled principle of law that the merits may be examined to a limited extent while the grant of extraordinary relief of pre-arest bail, that is why the Supreme Court of Pakistan widened the scope uMeeran Bux v.

of pre-arrest bail in the case of The State and anolher" [PLD 1989 Supreme Court 3471, wherein his lordship has heldi "Since the High Court has not considered the case on' merits it would seem prcper to remand the case to the High Court to consider, it on merits. However, Mr. Pirzada stated at the Bar that the other accused have already been gmnted bail in this case. Since the appellant remained on bail for more than one year before the bail was cancelled by the High Court without abusing the concession of bail in any manner and the reason given

bv the leamed Session Judge for granting ore-anest bail that the rqiury was on non-vital part of the body of 'the deceased i.e. thigh and was simple, was not \^rithout foundaiion, we would, therefore, in the circumstances, set aside the impugned order of the High Court and restore the order of the Sessions Judge granting the pre-anest bail.'

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9.Like-wise, in another case

Tanvir and otherc v. The State and another, 12023 SCMR 19461, the relevant portion is:-

" As per the contents of the crime rcport, the allegation against the petitioners is that they plowed and destroyed the standing crop o! mint from the land of the complainant and caused him a loss ofRs.125,000/-. However, it is the stance of the petitioners that the petitioners' party is owner of the land in question where the occr[rence took place; tlrey ar" in possession of requisite title documents and in-fact the complainant party was the aggressor. It is admitted position that a civil suit for declaration qua the land in question is stilt pending adjudication before the court of competent jurisdiction, which was filed about one year earlier to lodging of the instant FIR. In this view of the matter, the possibility of false implication just to pressurize the petitioners' side to gain ulterior motives cannot be ruled out. However, at this stage, we do not want to comment on this aspect of the matter, lest it may prejudice the case of either of the party. It is the Trial Court who after recording of evidence would decide about the guilt of the petitioners and as to whether section 440, P.P.C. is applicable or not' Even otherwise, all the six petitioners have been ascribed the role of jointly causing a loss ofRs.l25,000/- to the complainant. It is settled law that liberty of a person is a precious right, which has been guaranteed under the Constitution of Islamic Republic of Pakistan, 1973, and the same cannot be taken away merely on bald and vague allegations. The petitioners had earlier filed Criminal Misc. No. 59705-8D022 sr,ektng the relief of pre-arrest bail before the leamed

High Court, which was dismissed due to non-appearance of the petitioners on O3.l1io22. However, we have been informed that on that day, the petitioners got late but their counsel had duly informed the court. When the same was dismissed, the oetitioners filed the second bail petition on ih. rurn. day, which has been dismissed vide impugned order. It is now established that while granting pre-anest bail, the merits of the case can be touched upon by the Court. Reliance is placed on Miran Bux v' The state (PLD 1989 SC 347)' Sajid Hussain alias Joji v. The State (PLD 2021 SC 898), Javed lqbal v. The State (2022 SCMR 1424) and Muhammad Ijaz v. The State Q022 SCMR l27l). Taking into consideration all the facts and circumstances stated above, we are of the view that the case of the petitioners squarely falls within the ambit of section4STQ),Cr.P'C. entitling for further inquiry into their guilt."

10.Having regard to the site of the alleged injury on the shoulder of the complainant, the same squarely falls within the ambit of Section 337-N(2), P.P.C, wherein, in cases of hurt, the ordinary punishment prescribed is payment of Arsh arnd Daman. Sentence of imprisonmerfi as Tazir may only be imposed if the offender is shown to be a previous convict, a habitual, hardened, desperate or dangerous criminal, or where the offence has been committed in the name or on the pretext of honour. In the present case, the prosecution has failed to bring on record any material to establish that the respondent falls within such categories.

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11.The impugrred order has been examined in its entirety, wherein the learned Judge has aptly addressed the material aspects of the matter, and his reasoning is found to be in consonance with law. It is a well-settled principle that once a Court of competent jurisdiction grants bail to an accused, its recall can only be justified in the presence of exfaordinary circumstances or on attraotion of the grounds laid-down by the Superior courts, which are conspicuously absent in the present case' Reliance is placed on the case "Ahmad Shokeel Bhalti and others v. The State and others" 12023 SCMR 0ll, the relevant portion of the judgment is as:-

" 9. The scope of interference to be made against the grant of bail by this Court in its appellate jurisdiction is well settled and hardlY needs reiteration. of orders granting bail arc ordinarily resorted by the Court on two grounds: (i) when the impugned order is perverse on the face of it or (ii) when the impugned order has been made in clear disregard of some principle of the law of bail. A perverse order is one that has been passed against the weight of the material on the record or by ignoring such material or without applying the relevant legal criteria or witlout giving reasons. Such an order is also termed as arbitrary, whimsical and capricious.

None of these grounds for cancellation of bail are attracted in the present case. ConsequentlY, we are not inclined to interfere in the impugrred order of the High Court. Accordingly, leave to aPPeal is declined in Criminal Petition No.1l97-L of 2021, and it is dismissed."

12.This Court have also been informed that the ftial has been commenced in the court of Judicial Magistrate-V, Lakki Marwat in which the charge has been framed, in such an eventuality the court should not grant or cancel bail when the trial is in progress. Fiel: "Makhdoom Haider Shah v.

Mustafa Haider Shah and another" [2025 MLD 3971, the pertinent Para is reproduced as:- "5. Today at the very outset, leamed counsel for both the parties stated that the hial in this case has alreadY been commenced, however, the leamed counsel representing the petitioner stated that the nial was even in progr€ss at the time of granting bail to the other co-accused, therefore, only commencement of tial may not be considered as a ground for dismissal of this bail cancellation. applicatiorq however, such submissions of leamed counsel for the petitioner are not in line with the observations made by Hon'ble Apex Court in many cases as in a case the Hon'ble Apex Court has held that when the trial is about to commence bail cancellation petition should not be encouraged so as to avoid any discussion or remarks on merits of the case. Similarly, in the case the Hon'ble Apex Court has held that the Court should not grant or cancel bail when the trial is in progress. "

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13.Resultantly, the instant bail cancellation petition being devoid of merit is hereby dismissed' Announced.

.lnranullah PS' -sd- "t DGE (J-B) Hon'ble Mh Jastice Abdul Falaz