IN THE SUPREME COURT OF PAKISTAN 
(Appellate Jurisdiction) 
 
 
 
PRESENT:  
MR. JUSTICE SAJJAD ALI SHAH  
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI 
 
 
 
 
CRIMINAL PETITION NO.368 OF 2020 
(Against the order of the Peshawar High 
Court, 
Peshawar 
dated 
06.04.2020 
passed in Cr. M.B.A No.392-P/2020) 
 
 
Mukaram 
… Petitioner 
 
 
 
Versus 
 
The State and another 
… Respondents 
 
 
 
 
For the Petitioner  
 
 
For the Complainant 
: 
Mian Shafaqat Jan, ASC 
Syed Rifaqat Hussain Shah AOR 
 
Nemo 
 
For  the State 
: 
Arshad Hussain Yousafzai, ASC 
 
 
 
Date of Hearing 
: 
06.05.2020 
 
 
 
 
 
 
 
ORDER 
 
 
 
SAYYED MAZAHAR ALI AKBAR NAQVI, J:- Petitioner 
has assailed the jurisdiction of this Court under Article 185(3) of 
the Constitution of Islamic Republic of Pakistan, 1973 challenging 
the order of the learned Peshawar High Court, Peshawar dated 
06.04.2020 with the prayer to grant leave against the order and to 
release the petitioner on bail in the interest of justice. 
2. 
 
The petitioner alongwith others was involved in case 
bearing FIR No.728/2016 dated 11.06.2016, under Section 
302/324/34 PPC, registered with police station Nowshera Kalan, 
District Nowshera. 
Criminal Petition No. 368 of 2020. 
-:2:-
 
 
As per allegation contained in the crime report, it is 
alleged that the complainant was cultivating in his fields, at the 
same time, the petitioner alongwith three others duly armed with 
firearm, attracted to the place and resorted to indiscriminate firing. 
The father of the complainant sustained solitary injury which 
proved fatal. The motive behind the occurrence was previous 
hostility between the parties. The petitioner alongwith others 
remained absconder for considerable time. After lapse of four 
years, he was taken into custody. The petitioner applied for post 
arrest bail before the learned trial court which was dismissed vide 
order dated 19.02.2020. The order of learned Addl: District & 
Sessions Judge-II, Nowshera was assailed before learned Peshawar 
High Court, Peshawar through Crl. Miscellaneous Bail Application 
No.392-P/2020 which was decided vide order dated 06.04.2020 
while resulting into dismissal of bail application. Hence, the 
instant petition. 
3. 
 
At the very outset, it has been argued by the learned 
counsel for the petitioner that the prosecution has aggravated the 
occurrence and had ascribed the role of causing firearm injures to 
four persons with their respective weapons. Contends that the 
deceased had sustained only one injury on his person which 
resulted into his death but the same is generalized in nature and 
has not been ascribed specifically to anyone. Contends that 
although the occurrence had taken place in broad day light but 
wider net has been thrown. Contends that though the petitioner 
remained absconder for four years but absconsion itself is not 
sufficient 
to 
established 
guilt 
unless 
until 
the 
same 
is 
Criminal Petition No. 368 of 2020. 
-:3:-
substantiated from a direct source qua overt act towards the 
commission of offence. Contends that the petitioner is behind the 
bar and no more required for further investigation hence, is 
entitled for the relief as prayed for.   
4. 
 
On the other hand, learned law officer has stated that 
the petitioner is nominated in the crime report with the allegation 
of indulging into indiscriminate firing, however frankly conceded 
that the deceased has sustained only one injury and even one 
empty was recovered from the place of occurrence. He admitted 
that the petitioner remained on physical remand but no recovery 
has been affected from him. Finally, the learned law officer has 
stated that as the rest of the accused persons are still at large, 
therefore, the petitioner is not entitled for grant of bail. 
5. 
 
We have heard the learned counsel for the parties and 
gone through the record. 
6. 
 
There is no denial to this fact that four persons are 
involved in this case with allegations of causing indiscriminate 
firing. The deceased sustained only one injury on his person which 
prove fatal, such allegation in generalized in nature and no one can 
be saddled with responsibility of causing injury to the deceased. 
Further only one empty was recovered from the place of 
occurrence. As far as the element of absconsion is concerned, it is 
established principle of law that absconsion per se cannot be made 
basis for refusal of bail in the absence of any overt act which has 
contributed towards commission of the offence. The allegation 
against the petitioner if evaluated in the instant case, he remained 
Criminal Petition No. 368 of 2020. 
-:4:-
on physical remand but no recovery has been affected from him, 
hence the case of the petitioner squarely fall within the ambit of 
section 497(2) Cr.P.C entitling him for the grant of post arrest bail, 
otherwise liberty of a person is a precious right which cannot be 
taken away without strong connectivity of accusation. 
7. 
 
In view of the facts and circumstances, we are 
persuaded to grant leave to appeal in the instant petition while 
converting it into appeal and the same is allowed. The petitioner 
shall be released on bail subject to his furnishing bail bonds in the 
sum of Rs.5,00,000/- with one surety in the like amount to the 
satisfaction of the learned trial court/Duty Judge. 
8. 
 
Before parting with the order, it has been made clear 
that the observations made hereinabove are tentative in nature 
and it has no bearing during the course of proceedings before the 
learned trial court. 
 
 
 
 
 
 
 
 
 
 
 
Judge 
 
 
 
 
Judge 
Islamabad,  
06.05.2020 
Approved for reporting 
Syed Rashid Maqsood 
