IN THE SUPREME COURT OF PAKISTAN 
(APPELLATE JURISDICTION) 
 
 
PRESENT: 
MR. JUSTICE UMAR ATA BANDIAL 
MR. JUSTICE FAISAL ARAB 
 
CRIMINAL PETITION NO. 990 OF 2016 
(On appeal against the order dated 09.09.2016 passed 
by the Peshawar High Court, Peshawar in Cr.M/BA No. 
1724-P/2016) 
 
Wajid Ali 
… Petitioner 
VERSUS 
The State and another 
…Respondents 
 
 
For the Petitioner:  
Mr. Hussain Ali, ASC 
 
 
 
 
Mir Adam Khan, AOR (Absent) 
 
 
 
 
For the State: 
 
Mr. Zahid Yousaf, ASC for A.G. KPK 
 
 
 
 
Mr. Zahidullah, SI/IO, PS Badabair 
 
Date of Hearing:  
07.11.2016 
 
ORDER 
 
 
 
FAISAL ARAB, J.- The petitioner is an accused 
alongwith his brother Abdul Ghani in FIR No. 967 dated 
01.11.2015 registered under Sections 302/324/148/149 PPC at 
Police Station Badhber, District Peshawar. In the FIR it has been 
reported that on the fateful day when the complainant and his 
uncle were busy in repairing the wall of their house, the petitioner 
and his brother armed with weapons came and the co-accused 
Abdul Ghani instantly fired at his father, who succumbed to his 
injuries and died on the spot. It is also stated in the FIR that then 
the petitioner also fired at the complainant, who got injured, 
whereas his uncle ran from the scene of the crime to save his life. 
The petitioner after arrest applied for bail, which plea was rejected 
Criminal Petition No. 990/2016 
2
by the Trial Court. Petitioner’s bail application before the High 
Court also met the same fate. Hence this petition. 
  
2. 
 
Learned counsel for the petitioner argued that insofar 
as the petitioner is concerned, the only role attributed to him was 
that of causing fire arm injury to the complainant which is 
reported to be ‘ghair jaifa’, i.e. not falling within the prohibitory 
clause therefore bail ought to have been granted to the petitioner.  
 
3. 
 
Learned counsel for the State, on the other hand, 
opposed the grant of bail on the ground that the petitioner along 
with his brother came with the common intention to commit 
murder and the father of the complainant was fired upon and 
killed, therefore, bail was rightly declined to the petitioner. In 
support of his case, he placed reliance on the case of Munawar Vs. 
State (1981 SCMR 1092). In the cited case bail was declined to co-
accused on the ground that there was common intention evident 
on the record. 
 
4. 
 
In 
rebuttal, 
learned 
counsel 
for 
the 
petitioner 
submitted that the case cited by the State counsel is not attracted 
as from the narration of the incident in the FIR in the present case 
it cannot be said that there already existed common intention to 
commit murder. He placed reliance on the cases of Muhammad 
Irfan Vs. State (2014 SCMR 1347), Faqir Hussain Vs. State (2014 
SCMR 1502), Inayat Khan Vs. State (1982 P.Cr.LJ 1000) and 
Muhammad Khalid Butt Vs. State (1993 P.Cr.LJ 1491) wherein 
there was absence of any material to prima facie establish common 
Criminal Petition No. 990/2016 
3
and, therefore, it was nature of injury caused by the co-accused 
that was made basis for grant of bail.  
 
5. 
 
From the contents of the FIR, it cannot be out-rightly 
said that there was a common intention to commit crime. It prima 
facie appears that repairing of the common wall was the reason 
that provoked the accused. The conclusion that there was common 
intention can only be reached after the evidence in the matter 
comes on the record. So far as the role of causing injury on the 
person of the complainant is concerned, it is admitted position that 
the said injury was reported to be ghair jaifa. The petitioner in this 
view of the matter cannot be kept behind the bars for an indefinite 
period. In the circumstances, the petitioner has made out a case 
for post-arrest bail. This petition is therefore converted into appeal 
and is allowed and the impugned order is set aside. Petitioner is 
admitted to post-arrest bail subject to his furnishing bail bonds in 
the sum of Rs.300,000/- with two sureties in the like amount to 
the satisfaction of Trial Court.  
 
 
JUDGE 
JUDGE 
Islamabad, the 
7th of November, 2016 
Not Approved For Reporting 
Khurram 
 
