sher Ali Vs The State etc.

JI-]DGMENT SI{EET

IN THE PESHAWARHIGH COURT,

BANI\U BENCII.

(Judicial Department)

JUDGMENT

Cr: Mis c: B.A No. 63-B 12026

Sher Ali.

V.

The State etc:

Date of hearing: 18.03.2026.

For petitioner: Mr. Farooq Khan Sokari, advocate.

For the State: Muhammad Asghar Khan Ahmadzai,Addl: A.G.

For respondents: Mr. Muhammad Rashid Khan Dirmakhel, advocate.

SABIT ULI-AH KIAN, J.-

1.Through the instant post-arrest bail petition, the petitioner, Sher Ali, seeks his release on bail in FIR No.1288- dated 14.08.2021 registered under Sections 302, 324, 148, 149, P.P.C. at Police Station City, District Bannu. His earlier application for similar relief was declined by the leamed Additional Sessions Judge-IV, Bannu, vide order dated 21.02.2026.

2.Briefly stated, the prosecution case, as set forth in the FIR, is that on 14.08.2021, complainant Asghar Ali Khan, while injured along with his son Barkat Khan, reported the occurrence at Civil Hospitat, Baruru. It is alleged that while present at his shop in Mashala Mandi, Baruru, a dispute arose over parking

of a motorcycle, whereupon the accused persons, namely Dil Nawaz, Taj Muhammad, Adnan, Sami Ullah and Inayat Ullah, allegedly armed with firearms, opened indiscriminate fire, causing injuries to the complainant and his son.

3.Subsequently, a cross-version was lodged by complainant Dil F aruz Khan, wherein it was alleged that the present petitioner, along with co-accused Asghar AIi, Senan, Barkat and Sajjad, arrived armed with pistols and resorted to indiscriminate firing, resulting in injuries to Malik Dil Nawaz and fatal injuries to Asif Khan.

4.Leamed counsel for the parties as well as the leamed Additional Advocate General for the State were heard at length, and the available record has been carefully examined.

5.The record has been tentatively examined in the light of the submissions advanced by the leamed counsel for the parties. Admittedly, the petitioner stands nominated in the FIR along with co-accused Sajjad Ali Khan (since acquiued) with the specific allegation of having fired upon the deceased and caused his death, whereas the remaining co-accused were attributed the role of causing injuries to members of the complainant party. It is noteworthy that the occurrence in question has admittedly given rise to

cross-cases between the parties, wherein each side has alleged aggression against the other, thus reflecting a situation of counter versions stemming from one and the same transaction.

From a tentative assessment of the record, it transpires that the role attributed to the present petitioner is not distinguishable from that assigned to co-accused namely Asghar Ali Khan, Barkat Ali Khan and Sajjad Ali Khan, who have already been acquitted by the learned trial Court vide judgrnent dated 14.01.2026 passed in Sessions Case No.118/SC of 2021 by extending the benefit of doubt. Likewise, the other set of co-accused, namely Dil Nawaz Khan, Taj Muhammad Khan, Inayat Ullah Khan, Sami Ullah Khan and Adnan Khan, were also acquitted in cross Sessions Case No.123lSC of202l.

In such circumstances, where the occurrence has generated cross-versions and the co-accused attributed with similar roles have already been acquitted on the same set of evidence, the question as to which party was the aggressor and what was the true genesis of the occurrence necessaxily becomes a matter to be determined after recording of evidence during trial. At this stage, no definitive conclusion can be drawn merely on the basis of the nature or extent ot injuries attributed to either side. Consequently, the

case ofthe present petitioner squarely falls within the ambit of "further inquiry" as envisaged under Section a97Q),Cr.P.C.

Reliance is placed on the judgment of the Hon'ble Supreme Court of Pakistan Zulqurnain Haider alias Zain v. The State and anolher (2025 SCMR 1457), wherein it has been held:- "5. I(hen both versions qre placed in juxtaposition, it becomes apparent that the allegations in both complaints are qua lhe same incident, as they shme a common nexus in terms of date, time, location, motive, and parties involved. The only apryent distinction lies in the sequence of reporting. This factual overlap, prima facie, reflects that the fiito versions are antithetical claims arising out of one and the sdme occurrence thus, portraying the current scenario eal cross version and u)e are not in agreement with the Hon'ble Lahore Court on not allowing bail to the petitioner on the basis of cross-version. The reason being that in cases involving cross-versions of the same occurrence, it is a well-settled principle of criminal jurisprudence that the prime consideration before the Court is to ascertain which party was the aggressor and which party v)as aggressed upon. The nature, seat, and number of injuries sustained by each side may undoubtedly be relevant; however, such factors are merely indicative and do not, by themselves, carry an overriding or conclusive ffict. The mere ertent of injuries cawed to one pdrty cdnnot serve as the sole basis for drau,ing an adverse inference against the other, especially where both versions emanate from the same transaction and eqch party attribules aggression to the other.

6.In cases of counter versions arisingfrom the same incident, one given by the complainant in the FIR, and the other given by the opposite party, bail in appropriate cases is granted as a rule on the grounds of fitrther inquiry for the reoson that the question as to which version is correct is to be decided afier the recording of pro and contra evidence during the trial, and also to ascertain which party u)os the aggressor and which party was aggressed upon. The refiisal of bail in such cases is an exception. Reliance is placed upon Fazal Muhammad v. Ali Ahmed 1976 SCMR j91, Shafiqan v. Hashim Ali 1972 SCMR 682, Khalid Mehmood v.

Muhammad Kashif Rasool 2013 SCMR 1415

and Khizar Hayat v. The State 2024 SCMR

6.It is further noted that after his arrest, the petitioner neither made any confessional statement nor was any incriminating article recovered from his possession or at his instance. Prima facie, therefore, the case of the prosecution against the petitioner rests upon the same set of evidence which has already been disbelieved by the leamed kial Court in respect of co- accused who have been acquitted by extending the benefit of doubt. It is also noteworthy that in both cross-cases, the accused persons, except one, remained on bail during trial and ultimately the proceedings culminated in acquittal, which further reflects upon the doubtful nature of the prosecution case. Moreover, the accused persons in the cross-version arising out of the same occurrence have also been acquitted in a separate trial, thereby creating a situation of double doubt with regard to the prosecution story. In these circumstances, the case of the petitioner flrther falls within the contemplation of Section 497(2), Cr.P.C. Reliance is placed on Mazhor Ali v. The Slate and another (2025 SCMR 318), wherein the Hon'ble Supreme Court observed as under:-

"5. It is also noteworlhy that two co-accused of the petitioner namely ZulJiqar Ali alias Bhutto dnd Riaz Ali, who are real brothers of the petitioner and who were also named in lhe FIR along with the petitioner as accused in this case and who were also identiJied by Mst.

Aalia Parveen and Mst- Maria Pameen, alleged eye-witnesses, during their identification parade have already been acquitted by the learned Trial Court. The same prosecution evidence has already been disbelieved against above-mentioned co- accused by the learned Trial Court. Their case is not distinguishable from the case of the petitioner except alleged abscondence of the petitioner. It is true lhat the petitioner statedly remained an absconder in this case for a period of 10 years but it is by now well settled that mere abscondence of an accused by itself is no grotmd to refuse bail to him d otherwise he is entitled to the said relief on merils. Reference in this context may be made to the cases of Hidayat Khan v. The State (2023 SCMR 172), Ehsanullah v. The State (2012 SCMR 1 137) and State v. Mukhtar Ahnad Awan (1991 SCMR 322)."

7.Reliance is also placed onSjW!

Khan (2024 SCMR 464), wherein the Hon'ble Supreme Court granted bail in circumstances where co-accused atkibuted with similar roles had already been acquitted and the bulk of the prosecution case stood concluded. It was further held that mere abscondence of an accused, by itself, is not sufficient to deny the relief of bail if otherwise the case calls for further inquiry, particularly when no incriminating material has been recovered and the case is at par with that of acquitted co-accused.

8.Likewise, a tentative assessment of the record reveals that the present petitioner, along with co- accused Saiiad (since acquitted), was attributed the specific role of firing upon the deceased. The said co- accused, having been assigned an identical role, has already been acquitted by the learned trial Court on the

C same set of evidence, thereby rendering the case of the present petitioner one of parity. Apart from the allegation of abscondence, no further incriminating material has been brought on record which may prima facie distinguish the case of the petitioner. It is by now well settled that abscondence alone does not fumish sufficient ground to deny the concession of bail where the case otherwise calls for further inquiry.

9.As regards the allegation that the petitioner remained absconding for a considerable period, it may be observed that although abscondence is a relevant factor, the same cannot be considered in isolation so as to deprive an accused of the concession of bail where the case otherwise calls for such relief on merits. It is well settled that abscondence, by itself, is not suffrcient to disentitle an accused from the grant of bail. In this regard, reliance may be placed on the case of Hidavat Khan v. The State (2023 SCMR 172), wherein the Hon'ble Supreme Court has held that abscondence alone cannot be made a ground to refuse bail if the case otherwise falls within the ambit ot further inquiry.

10.In view of the foregoing discussion and the overall facts and circumstances of the case, this Court is satisfied that the petitioner has been able to make out a case for the grant of post-arrest bail

Vide detailed common

B.A. No,the99-8/2025 ent of today placed onConsequently, instant petition is allowed and the petitioner, namely Sher Ali, is admitted to bail subject ammad Sher Vs The State etc), the tnstarfi to his fumishing bail bonds in the sum of Rs.200,000/- (Rupees Two Hundred Thousand only) with two cancellation application, 1,€, No.10- sureties each in the like amount to the satisfaction of the concemed Judicial Magistrate/IvloD. It is clarified 5 is hereby dismissed nlbninie.

that the observations made hereinabove are tentative in nature and shall not influence the leamed trial Court 202s. while deciding the case on merits. h PS' 11. These are the detailed reasons ofthe short order of even date.

(S,B) Hon'ble Mi lastlcc Abdal Fayaz Announced.

18.03.2026. urL +lurunullah PSr -Sd-

JUDGE

Judge

(s.B) Hon'ble Mt. Justice Sabll Ullah Khan

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