Numan Ali Vs The State

JUDGMENT SHEET

PESHAWAR HIGH COURT

MINGORA BENCH

(Judicial Department) Cr.M.B.B.A. No. 506-M/2025 (Numan Ali v/s State & others)

ORDER

Date of hearing: - 22.9.2025 Petitioner: - (Numan Ali) by Muhammad Askar Khan, AHC, along with petitioner, in person. Respondents: - (State & others) by Mr. Naeem Khan Khan, Astt: A.G and Mr. Rashid Ali Khan,

ASC.

SALAH-UD-DIN, J: - Petitioner namely Numan Ali seeks his pre-arrest bail, in case FIR No. 292 dated 05.6.2025 (Cross Mad No. 34 dated 06.6.2025), registered against him U/Ss 302, 324, 147, 148 & 149 PPC at P.S Matta, District Swat.

2.As per contents of ibid FIR,

complainant namely Abdul Sattar reported the matter to local police at casualty ward of Matta hospital in terms that on the fateful day, he, along with his deceased maternal cousin namely Fazal Wahid and other injured PWs/relatives were present on the spot of occurrence, being busy in purchase of cattle for holy rituals of sacrifice ()قربانی. In the meanwhile, accused Fam Jan, Rahim Zada, Salim, Shah Zaman, Amir Zaman and Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

Numan (petitioner herein), duly equipped with sticks & daggers came to the spot and started quarrel with them. Due to knife blows of accused namely Shah Zaman and Amir Zaman, the deceased Fazal Wahid got injured on different parts of his body and died on the spot. Likewise, due to knife and stick blows of rest of the accused, Abdul Qayum, Abdul Hameed, Fazal Raziq, Ilyas and Abdul Manan sustained injuries on different parts of their bodies. Accused were also alleged to have made firing upon the complainant-party; however, they luckily escaped un-hurt. Motive qua commission of offence was disclosed to be previous ill-will between the parties. In view of report of complainant ‘Murasila’ was drafted which culminated into ibid FIR registered against present petitioner and other co-accused at P.S concerned.

3.Arguments of learned counsel for

parties as well as learned Astt: A.G for State were heard and requisitioned record perused with their able assistance.

4.A bare look of record would reveal that there is no denial to this fact that present petitioner namely Numan Ali has been charged for inflicting Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

injuries on the persons of complainant-party with stick and dagger blows, however, the instant FIR has a cross version in the form of Naqal Mad No. 34 dated 06.6.2025 lodged by one of the nominated accused of ibid criminal case namely Saleem Khan, whereby present complainant namely Abdul Sattar and other co-accused have been saddled for an offence of murderous assault, upon the complainant-party.

5.Comparative perusal of both the incidents i.e. instant FIR as well as Mad report would show that they are cross versions of same incident, as time of occurrence, place of occurrence and parties are almost the same. It is yet to be determined by learned trial Court after recording of evidence that as to what was role of each accused on either side in commission of offence and that as to who was aggressor and who was aggressed upon, therefore, for time being, case of present petitioner is arguable for the purpose of grant of pre-arrest bail.

6.Learned counsel for complainant

vehemently opposed the grant of extraordinary concession of pre-arrest bail to the present petitioner citing the reason that petitioner at first instance should have made resort of learned trial Court qua grant of Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

pre-arrest bail and upon refusal thereof, he may approach to this Court for grant of post arrest bail. In order to bolster his arguments, learned counsel for complainant placed reliance on the unreported judgment of this Court dated 07.02.2025, rendered in Cr.M B.B.A No. 37-M of 2025, wherein reliance has been placed on the judgment of apex Court, delivered in case titled “Rana Muhammad Arshad v/s Muhammad Rafique & another” reported as PLD 2009 Supreme Court 427. In the ibid judgment of apex Court, it was expounded by their Lordships that in the absence of a reasonable and justifiable cause, a person seeking admission to bail before arrest must, in the first instance, approach the Court of first instance (i.e. the Court of Session) before approaching the High Court for the same relief.

7.As against this, it was argued by learned counsel for petitioner that this Court has concurrent jurisdiction with the Court of Sessions U/S 498 Cr.P.C qua entertaining an application for grant of bail before arrest. He also added that present petitioner has specifically raised the issue of serious threats to his life at the hands of complainant-party, in case, he approaches the learned trial Court situated at Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

the vicinity of Tehsil Matta, therefore, in view of this compelling reason, he has left with no other option but to approach this Court qua grant of extraordinary concession of pre arrest bail. At the last end of his arguments, he also argued that co-accused having assigned similar role as that of present petitioner have been released on post arrest bail, therefore, present petitioner also deserves alike treatment under the golden principle of rule of consistency.

8.First of all, there is no cavil with the proposition that this Court has got concurrent jurisdiction with the Court of Sessions U/S 498 Cr.P.C qua grant of extraordinary relief of bail before arrest. This is not a rule of law but rule of propriety that where two Courts have concurrent jurisdiction, petitioner should first approach lower forum for grant of the relief, in absence of any compelling reasons.

This issue is not alien to jurisdiction of superior Courts. For instance, in case titled “Rais Wazir Ahmad v/s State” reported as 2004 SCMR 1167, it was held by apex Court that:-

“Normally a person against whom a case has been registered, may approach in the first instance the original Court i.e. the Sessions Judge for bail before arrest because propriety so demands, but it is not an absolute rule as, depending upon the compelling circumstances of each case, a person can directly approach the High Court by invoking Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

its concurrent jurisdiction. If, however, such an application has been moved before the High Court and it has entertained the same and granted ad interim bail to the applicant, then instead of dismissing same on technical grounds it should dispose it of on merits.”

Same rational was earlier expounded

by apex Court in case titled “State v/s Malik Mukhtar Ahmad Awan” reported as 1991 SCMR 322, in the following words:-

“It is a matter essentially of propriety and not of law that a person accused of an offence should in the first instance move Court of Session for pre-arrest bail before approaching High Court.”

In support of same rational further

reliance is placed on the judgment of Sindh High Court titled “Imam Bux alias Amoo & another v/s State” reported as PLD 2012 Sind 2012, whereby in respect of the matter-in-issue, it was held that:-

“In absence of reasonable and justifiable cause a person desiring his admission to bail before arrest, must in the first instance, approach the court of first instance i.e. the Court of Session, before petitioning the High Court for the same purpose, but it is not an absolute rule as, depending upon the compelling circumstances of each case, a person can directly approach the High Court by invoking its concurrent jurisdiction. If, however, such an application has been moved' before the High Court and it has entertained the same and granted ad interim bail to the applicant, then instead of dismissing same on technical grounds it should dispose it of on merits. Accused in bail application before High Court had clearly mentioned that their names were not mentioned in the F.I.R.; that they had been implicated subsequently and apprehended their arrest; that in order to avoid undue harassment and humiliation at the hands of the police, they had approached the High Court directly, and that their non-bailable warrants. had been issued by the Trial Court. Accused, in circumstances, had directly approached the High Court with reasonable and justifiable cause and their previous bail application had been entertained by the High Court, Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

granting them ad interim bail. Accused had rightly invoked the concurrent jurisdiction of the High Court.”

In view of the aforesaid ratio-

decidendi expounded by the superior Courts, I am confident to hold that this Court has got concurrent jurisdiction with the Court of first instance i.e.

Sessions Court, therefore, this objection of learned counsel for complainant holds no water, hence discarded, in all eventualities.

9.Needless to highlight at the cost of repetition that present petitioner has specifically raised a compelling reason in his application in terms that it was due to serious threats to his life at the hands of complainant-party, he was compelled to approach this Court instead of the Court of Sessions, situated at the vicinity of Tehsil Matta, therefore, this reason by itself is sufficient to justify endeavor of the petitioner before this Court qua grant of bail before arrest.

10.With regard to plea of learned counsel for complainant that rule of consistency does not apply between pre-arrest and post-arrest bail. In this respect, I am fortified to place reliance on the judgment of apex Court, rendered in case titled “Kazim Ali and others versus State and others” Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

reported as 2021 SCMR 2086. In the ibid judgment, Hon’ble Supreme Court held that where role ascribed to large number of accused was of general nature, which cannot be distinguished from each other, any technical ground that consideration for pre-arrest and post arrest bail are on different footing would be only limited up to the arrest of the accused persons because soon after their arrest they would become entitled to the concession of post- arrest bail on the plea of consistency and as such the accused persons in such case were admitted to pre-arrest bail. In context of the case in hand, role of co-accused, who have been enlarged on post arrest bail is similar to that of present petitioner, on all counts, therefore, his role cannot be distinguished from above-referred accused and as such petitioner is found entitled to pre-arrest bail on the rule of consistency.

11.During the course of arguments,

learned counsel for complainant also laid much stress on the point that petitioner has been seeking extraordinary concession of pre-arrest bail and his case could at the most of that of post arrest bail, especially, when his accomplices have already Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

been enlarged on post arrest bail. However, it is settled by now that if an accused person is having a case of post arrest bail, then it would be ridiculous and will amount to mockery of law if he is sent for few days to jail and then released on bail. In this regard, wisdom can be drawn from the judgment of Hon’ble apex Court rendered in case titled “Muhammad Kashif Iqbal v/s State & another” reported as 2022 SCMR 821, whereby it was held that: -

“That admittedly co-accused of the accused had been granted post-arrest bail by the court of competent jurisdiction which remained unchallenged by the complainant. Any order by the Supreme Court on any technical ground that the consideration for pre-arrest bail and post-arrest bail were entirely on different footing, would be only limited up to the arrest of the accused because of the reason that soon after his arrest he would become entitled for the concession of post- arrest bail on the plea of consistency.

Similarly, Hon’ble Lahore High Court

in case titled “Mst. Abida Bibi v/s State & another” reported as 2014 YLR 1537 has earlier expounded the same rational by observing as under: - “That sending the petitioner behind the bars only to oblige her to come out of the jail after a few days on post-arrest bail would amount to mockery of law.

Further reliance may also be placed on the judgment rendered in case titled “Muhammad Aslam versus State” reported as PLJ 1999 Criminal cases 1504 (Lahore) authored by the then Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

Hon’ble Chief Justice Asif Saeed Khan Khosa as the then he was and this view has also been endorsed by Hon’ble Supreme Court in two cases i.e. PLD 2017 Supreme Court 730 and PLD 2021 Supreme Court

898.In the former judgment, Hon’ble apex Court has observed that when petitioners are entitled to post arrest bail, thus, their prayer for pre-arrest bail, if declined, would be a matter of technicality alone while on the other hand they are likely to be humiliated and disgraced due to arrest at the hands of local police.

12.In view of above discussion and

exposition of law, instant petition is allowed and ad-interim bail already granted to petitioner by this Court vide order dated 13.8.2025 is confirmed on the existing and already furnished bail bonds.

Announced Dt: 22.9.2025 Sd/-

JUDGE

Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din