IN THE SUPREME COURT OF PAKISTAN 
(APPELLATE JURISDICTION) 
 
 
 
PRESENT: 
MR. JUSTICE MAQBOOL BAQAR 
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI 
MR. JUSTICE JAMAL KHAN MANDOKHAIL  
 
 
 
CRIMINAL PETITION NO. 172-P OF 2021 
(On appeal against the judgment dated 15.11.2021 
passed by the Peshawar High Court, Peshawar in Cr. 
MBA No. 3288-P/2021) 
 
 
Gul Nawab  
 
 
 
 
 
 
… Petitioner 
VERSUS 
The State through A.G. KPK and another 
 
 
… Respondents 
 
For the Petitioner(s): 
Syed Abdul Fayaz, ASC 
 
 
For the Complainant: 
In person 
 
 
For the State: 
Mr. Arshad Hussain Yousafzai, ASC 
Mr. Akbar Rehman, I.O 
 
 
Date of Hearing: 
25.01.2022 
 
ORDER 
 
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through the instant 
petition under Article 185(3) of the Constitution of Islamic Republic of 
Pakistan, 1973, the petitioner has assailed the order dated 
15.11.2021 passed by the learned Single Judge of the Peshawar 
High Court, Peshawar, with a prayer to grant post-arrest bail in case 
registered vide FIR No. 732 dated 25.08.2012 under Sections 
302/34 PPC at Police Station Nowshera Kalan, District Nowshera, in 
the interest of safe administration of criminal justice. 
2. 
 
Briefly stated the allegation against the petitioner is 
that he along with co-accused while armed with firearms attacked 
on the complainant party and due to the fire shots made by them the 
nephew of the complainant has lost his life.  
3. 
 
At the very outset, it has been argued by learned 
counsel for the petitioner that the petitioner has been falsely roped in 
Criminal Petition No. 172-P/2021 
-: 2 :- 
this case against the actual facts and circumstances. Contends that 
the complainant has involved four accused in the present case and 
the role ascribed to each one of them including the petitioner is of 
general nature. Contends that four empties of 7.62 bore were 
collected from the spot whereas no weapon has been recovered from 
the possession of the petitioner, therefore, it cannot be said with 
certainty as to whose fire hit the deceased. Contends that in-fact the 
complainant party was aggressor and one person from the 
petitioner’s side also lost his life during the incident and in this 
regard the petitioner’s side has also lodged FIR bearing No. 
733/2012 under Sections 302/34 PPC against the complainant 
party on the same day and time. Lastly contends that the case of 
the petitioner falls within the ambit of further inquiry, therefore, he 
may be granted bail in the interest of justice.  
4. 
 
On the other hand, learned State counsel has defended 
the impugned order whereby post-arrest bail has been declined to 
the petitioner. He contended that the petitioner has been specifically 
nominated in the crime report with a specific role of firing at the 
deceased and he remained absconder for a long period of nine 
years, which shows his guilty mind, therefore, he does not deserve 
any leniency by this Court. He placed reliance on Nasir Muhammad 
Wassan Vs. The State (1992 SCMR 501) to contend that mere 
registration of cross-version could not be a ground for grant of bail.  
5. 
 
We have heard learned counsel for the parties at some 
length and have perused the record with their able assistance.  
 
 
Perusal of the contents of the crime report clearly reflect 
that the petitioner along with co-accused launched murderous 
assault on the complainant party while using firearms resulting into 
death of the nephew of the complainant. We have noted that only a 
general role of firing has been ascribed to the petitioner without any 
specification qua (i) kind of weapon, (ii) part of the body which has 
been hit, and (iii) any recovery of the empties from the place of 
occurrence specifying the accusation against the petitioner. We are 
conscious of the fact that four empties of 7.62 bore were taken into 
possession by the Investigating Officer. However, no recovery has 
been affected from the petitioner after he was taken into custody. 
Criminal Petition No. 172-P/2021 
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Perusal of the crime report clearly reflects that the complainant has 
not mentioned any overt act towards the opposite party whereas it 
is clear stance of the petitioner that in-fact the complainant party 
had shown aggression and initiated the occurrence. In this regard, 
separate FIR bearing No. 733/2012 under Sections 302/34 PPC has 
been registered on the same day and time. There is no denial to this 
fact that the occurrence described in the other crime report was not 
outcome of the same occurrence, which clearly reflects that the 
complainant has concealed the real facts while lodging the crime 
report in which the petitioner is seeking the relief of bail. It is 
established principle of law that when there are two versions of the 
occurrence, it squarely invites the provisions of Section 497(2) 
Cr.P.C. calling for further probe into the occurrence, which is 
apparent in this case. So far as the argument of learned Law Officer 
that the petitioner remained absconder for a period of nine years is 
concerned, we are of the view that mere absconsion cannot be a 
ground to discard the relief sought for as it is established principle of 
law that disappearance of a person after the occurrence is but 
natural if he is involved in a murder case rightly or wrongly. 
Reliance is placed on Rasool Muhammad Vs. Asal Muhammad (PLJ 
1995 SC 477). Another judgment wherein the petitioner remained 
absconder for considerable time and was involved in many other 
criminal cases but despite that he was given bail on merits is 
Moundar and others Vs. The State (PLD 1990 SC 934). Reliance is 
also placed on Muhammad Tasaweer Vs. Hafiz Zulkarnain (PLD 
2009 SC 53). This Court in various judgments has held that mere 
absconsion is not a proof of guilt, hence, cannot be made sole 
ground to discard the relief sought for. Even otherwise, it is most 
cardinal principle of law that each criminal case has its own facts 
and circumstances and that have to be weighed accordingly. 
Learned Law Officer has relied upon a judgment of this Court 
wherein mere registration of counter version was not considered as 
a ground for grant of bail. However, this principle is not absolute in 
any manner as in the instant case both the sides have lost a life and 
are placed on equal proportion regarding culpability and the factum 
of aggression would be resolved by the learned Trial Court after 
recording of evidence. As a consequence, we convert this petition 
Criminal Petition No. 172-P/2021 
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into appeal, allow it and set aside the impugned order dated 
15.11.2021. The petitioner is admitted to bail subject to his 
furnishing bail bonds in the sum of Rs.500,000/- with one surety in 
the like amount to the satisfaction of learned Trial Court. 
 
 
JUDGE 
 
 
 
JUDGE 
 
 
 
JUDGE 
Islamabad, the 
25th of January, 2022 
Approved For Reporting 
Khurram  
