IN THE SUPREME COURT OF PAKISTAN 
(Appellate Jurisdiction) 
PRESENT: 
MR. JUSTICE UMAR ATA BANDIAL 
MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL 
 MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI 
CRIMINAL PETITION NO.1023/2020 
(Against the order of Peshawar High Court, 
Peshawar dated 17.08.2020 passed in 
Crl.M.BA No.2275-P/2020) 
 
Jahanzeb and others  
: 
 
 
… 
Petitioner(s) 
Versus 
 
The State through AG KPK Peshawar and 
another  
: 
 
 
… 
Respondent(s) 
 
For the Petitioner(s)  
: 
Asad Ullah Khan Chamkani, ASC 
For the (State)  
: 
Ayesha Tasneem, ASC 
Complainant in person. 
 
 
 
Date of Hearing 
: 
25.11.2020 
 
 
…. 
 
 
ORDER  
 
SAYYED MAZAHAR ALI AKBAR NAQVI, J: - Petitioners have invoked 
the jurisdiction of this Court under Article 185(3) of the Constitution of 
Islamic Republic of Pakistan, 1973 calling in question the order of Single 
Bench of Peshawar High Court, Peshawar dated 17.08.2020 in Crl. M BA 
No.2275-P/2020 declining post arrest bail to the petitioners with prayer to 
grant the same in the interest of safe administration of criminal justice. 
2. 
 
As per allegation contained in the crime report bearing FIR 
No.310/2020 dated 09.05.2020 u/s 302, 324, 34 PPC registered with 
police station Daudzai, District Peshawar, it is disclosed that when 
complainant alongwith his father Ajmal Khan and cousin Asad Ullah were 
busy in their fields cutting their crop through tractor/cutter, in the 
meanwhile petitioners alongwith Khan Zaib attracted to the place of 
occurrence and resorted to indiscriminate firing. It is specifically mentioned 
that fire shot made by Khan Zaib had hit the father of the complainant who 
 Criminal Petition No.1023/2020 
Jahanzeb and others Vs, The State etc 
2 
 
succumbed to the injury when he was being evacuated to hospital. The 
motive behind the occurrence is dispute over property. 
 3. 
 
At the very outset, it has been argued by the learned counsel 
for the petitioners that the petitioners have been falsely roped in this case 
against the actual facts and circumstances. Further contends that wider 
net has been thrown by the prosecution while involving two brothers and 
father in the instant case. Contends that medico legal report clearly reflect 
that there is only one injury sustained by the deceased which is attributed 
to co-accused who is fugitive from law. Contends that criminal liability 
cannot be shifted from one accused to another. Lastly it has been argued 
that as no recovery of any weapon has been affected from the petitioners 
therefore, the case of the petitioners squarely fall within the ambit of 
section 497(2) Cr.P.C. entitling them concession of post arrest bail. 
4. 
 
Learned counsel appearing on behalf of the State has 
vehemently opposed the contention raised by the learned counsel for the 
petitioners. It is argued that all the accused persons in furtherance of their 
common intention attracted to the place of occurrence, hence, they are 
jointly liable for the offence committed by them. It is further argued that 
parties are known to each other prior to occurrence, hence, there is no 
chance of mis-identification, however, frankly conceded that the post 
mortem report reveals that there is only one injury available on the body of 
deceased. Finally it has been argued that the petitioners are vicarously 
liable for the murder of Ajmal Khan, therefore, they are not entitled for the 
concession of bail. 
5. 
 
We have heard the learned counsel for the parties and gone 
through the record. 
 
 
No doubt, there are certain facts which are not denied by 
either of the party. This occurrence has taken place in broad daylight 
 Criminal Petition No.1023/2020 
Jahanzeb and others Vs, The State etc 
3 
 
whereas the parties are known to each other being close relatives; hence, 
there is no question qua the identity of the accused by the prosecution 
witnesses. The motive behind the occurrence is also not denied, however, 
the questions which require judicial scrutiny by this Court are: - (i) Sharing 
common intention. (ii) Role ascribed. (iii) Recovery of weapon as alleged. 
(iv) Tentative assessment at this stage by this Court. Perusal of the record 
placed before us, it is an admitted fact that the allegation against the 
petitioners is that they resorted to indiscriminate firing without causing any 
injury to anyone; however, the deceased sustained only a single shot 
whereas none of the prosecution witnesses sustained even a scratch. It is 
no body’s case that the prosecution witnesses escaped from the firing of 
the petitioners due to some hurdle or safety measure. The occurrence has 
taken place in open and if there would have been any intent at the part of 
the petitioners, there was nothing which could restrain them from 
committing the occurrence on broader spectrum. During the course of 
investigation though recovery of four empties of pistol .30 bore and three 
empties of Kalashnikov were recovered from the spot but as no weapon 
was affected from the petitioners during the course of investigation, 
therefore, mere recovery of empties would be a question to be resolved by 
the trial court after recording of prosecution evidence. The contention of 
the learned counsel that the case of the petitioners squarely fall within the 
ambit of section 497(2) Cr.P.C. is concerned, the same is reproduced as 
under:- 
497. When bail may be taken in cases of non-bailable offence. 
  
(1)  
………. 
 
(2) 
If it appears to such officer or Court at any stage of the 
investigation, inquiry or trial, as the case may be, that there are no 
reasonable grounds for believing that the accused has committed 
a non-bailable offence, but that there are sufficient grounds for 
further inquiry into his guilt, the accused shall, pending such 
inquiry, be released on bail, or, at the discretion of such officer or 
Court, on the execution by him of a bond without sureties for his 
appearance as hereinafter provided. 
(3)  
 ……. 
 Criminal Petition No.1023/2020 
Jahanzeb and others Vs, The State etc 
4 
 
(4)  
 ……. 
(5) 
……. 
 
Perusal of the aforesaid provision reveals the intent of the legislature 
disclosing pre-condition to establish the word “guilt” against whom 
accusation is levelled has to be established on the basis of reasonable 
ground, however, if there exists any possibility to have a second view of 
the material available on the record then the case advanced against whom 
allegation is levelled is entitled for the relief in the spirit of section 497(2) 
Cr.P.C. In the instant case, as no overt act is ascribed to the petitioners 
except the allegation of ineffective firing not supported by any recovery of 
weapon and as such the recovery of crime empties from the place of 
occurrence has no legal sanctity, therefore, the facts and circumstances 
narrated above brings the case of the petitioners of further inquiry falling 
within the ambit of section 497(2) Cr.P.C. entitling them for the concession 
of bail. 
6. 
 
As a consequence, leave to appeal is granted in the instant 
petition while converting it into appeal and the same is allowed. The 
petitioners shall be released on bail subject to their furnishing bail bonds in 
the sum of Rs.1,00,000/- each with one sureties each in the like amount to 
the satisfaction of the learned trial court/Duty Judge.  
 
 
JUDGE 
 
 
JUDGE 
 
 
JUDGE 
Islamabad/25.11.2020 
Not approved for reporting 
*Athar* 
