IN THE SUPREME COURT OF PAKISTAN 
(Appellate Jurisdiction) 
 
 
PRESENT:  
MR. JUSTICE SAJJAD ALI SHAH  
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI 
 
 
CRIMINAL PETITION NO.77-P OF 2020 
(Against the order of the Peshawar High 
Court, Peshawar dated 22.06.2020 passed in 
Cr. M.B.A No.1316-P/2020) 
 
 
Imtiaz 
… 
Petitioner(s) 
 
 
 
Versus 
 
Azam Khan and others 
… 
Respondent(s) 
 
 
 
 
For the Petitioner(s): 
: 
Mr. Muhammad Jamal Afridi, ASC 
 
 
 
For  the Respondent(s): 
: 
Mr. Hussain Ali ASC 
Respondents in person 
 
 
 
For the State: 
: 
Mr. Zahid Yousaf Qureshi, Addl: AG 
KPK 
Mr. Hidayat Khan, SI Police Station 
Mathra District Peshawar  
 
 
 
Date of Hearing 
: 
08.10.2020 
 
 
 
 
 
 
ORDER 
SAYYED MAZAHAR ALI AKBAR NAQVI, J:-Petition for leave to appeal 
under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 
1973 against the order impugned dated 22.06.2020 passed in Cr.M.B.A 
No.1316-P/2020. 
2. 
 
The respondents were booked in case bearing FIR 
No.903/17 dated 06.11.2017 offence u/s 302/324/34 PPC registered with 
Police Station Mathra, District Peshawar at the instance of Imtiaz s/o 
Qadir Khan, complainant. 
 
 
As per allegation against the respondents is that they in 
furtherance of their common intention while armed with knife attacked with 
their respective weapon causing injuries on the person of Imtiaz 
Criminal Petition No.77-P/2020 
Imtiaz vs, Azam Khan and others 
2 
 
complainant, Qadir Khan his father and Rafi Ullah real uncle. Qadir Khan 
father of the complainant succumbed to injuries on his way to hospital. 
The respondents became fugitive from law hence, they were arrested by 
the police after the lapse of 02 years and 03 months. The respondents 
filed their post arrest bail before the learned trial court which was 
dismissed by the learned ASJ-XI, Peshawar vide order dated 19.02.2020. 
The respondents being aggrieved by the order of learned ASJ-XI, 
Peshawar filed a Cr.M(BA) bearing No.396-P/2020 before learned 
Peshawar High Court, Peshawar and the same was entrusted to learned 
single bench. The learned single bench after taking into consideration of 
the facts and circumstances disposed of the petition with the direction to 
the learned trial court not to be prejudice by the earlier order of dismissal 
passed on 19.02.2020 however the matter was sent back on the ground 
that proper sections of law regarding causing hurt to both injured were not 
added by the Investigating Officer. In the second round of litigation, the 
respondents moved another application for post arrest bail which was 
entrusted to ASJ-III, Peshawar. The learned ASJ-III, Peshawar vide order 
dated 06.05.2020 dismissed the petition for post arrest bail on the ground 
that the sections 302/324/337-D PPC do fall within the prohibitory clause 
of section 497 Cr.PC. The respondents challenged the order of learned 
ASJ-III, Peshawar before Peshawar High Court, Peshawar through 
Cr.M.B.A No.1316-P/2020 which was entrusted to learned single bench. It 
is pertinent to mention here that learned counsel appearing on behalf of 
the respondents while filing the second petition before Peshawar High 
Court, Peshawar did not disclose that earlier petition was filed before this 
Court and the same was entrusted to another learned single bench. The 
note mentioned in the petition is reproduced as under: - 
Criminal Petition No.77-P/2020 
Imtiaz vs, Azam Khan and others 
3 
 
“As per instruction of my client certified that no such bail 
application has been filed by the petitioner, before this 
Hon'ble Court.” 
 
The learned single bench vide order dated 22.06.2020 granted post arrest 
bail to the respondents on the basis that the intention of respondents to kill 
the injured and applicability of section 324 PPC as well as sharing of 
common intention with principal accused are yet to be determined and that 
is to be done exclusively by the learned trial court hence, instant petition 
for cancellation of concession of bail extended to respondents. 
3. 
 
At the very outset, it has been argued by the learned counsel 
that the bail granting order passed by the learned trial court dated 
22.06.2020 is not sustainable in the eyes of law. It has been further 
argued that the learned counsel while moving the bail petition has not 
properly informed the office regarding the earlier disposal of the petition of 
the respondents and has actually concealed the real facts just to defeat 
earlier filing of the petition which was entrusted to another learned single 
bench. Contends that the same is clear violation of principle laid down in 
PLD 1986 SC 173 (The State through AG NWFP vs, Zubair and 04 
others). Further contends that on merits, the respondents were ascribed 
injury which do fall within prohibitory clause of section 497 Cr.PC and the 
finding given by the learned single bench are artificial in nature. Contends 
that the gross injustice has been occasioned due to order passed by the 
learned single bench hence, the order is not sustainable in the eye of law 
in any manner. The learned counsel has relied upon case law reported in 
PLD 2015 SC 66 (Ghulam Qammber Shah vs, Mukhtiar Hussain and 
others) and 2020 SCMR 937 (Bilal Khan vs, The State through PG 
Punjab).  
4. 
 
On the other hand, learned counsel appearing on behalf of 
the respondents states that in the earlier application, the matter was 
Criminal Petition No.77-P/2020 
Imtiaz vs, Azam Khan and others 
4 
 
remanded back for the insertion of certain offences which were not 
incorporated by the Investigating Officer. Contends that the order passed 
by the learned single bench is sustainable and the reasoning assigned is 
justifiable under the law. Contends that the principle for grant of bail and 
cancellation are entirely on different footing and as such, the courts are 
always reluctant to accept the petition for cancellation of bail. 
5. 
 
We have heard the learned counsel for the parties and gone 
through the record. 
 
 
There is no denial to this fact that respondents were 
admitted to bail after arrest by a single bench in second round of litigation. 
In the earlier round of litigation, the post arrest bail of the respondents was 
dismissed by learned ASJ-XI, Peshawar whereas the second bail 
application which was challenged before learned Peshawar High Court, 
Peshawar and the learned single bench sent back the matter to the 
learned trial court not due to any reasons except that the appropriate 
section as per law were not incorporated, which might have ensued gross 
injustice to the complainant and as such, the matter was sent back for 
addition of the relevant provision of law in the police record. That after the 
insertion of the relevant provision of law in the second round of litigation, 
the matter was assigned to learned ASJ-III, Peshawar. It is strange 
enough that it has now established that the bail application if earlier 
decided by a court, the same cannot be entrusted to any other court 
except on the ground that the other court was not available. This was not 
taken care of even at the bail stage before the court of learned ASJ 
whereas in the second round of litigation, the learned counsel appearing 
on behalf of the respondents intentionally avoided to disclose the filing of 
earlier petition before learned Peshawar High Court, Peshawar and the 
adjudication of the same by a different bench and it was assigned to 
Criminal Petition No.77-P/2020 
Imtiaz vs, Azam Khan and others 
5 
 
another court which was clear violation of PLD 1986 SC 173 (The State 
through AG NWFP vs, Zubair and 04 others). Apart from this, the learned 
single bench has not taken into consideration the allegation against the 
respondents and the injuries ascribed to them. It is an admitted fact that 
one of the injured PW had undergone surgical intervention and as such, 
the provision of section 337-D PPC was added. The finding given by the 
learned single bench qua the applicability of section 324 PPC and section 
34 PPC qua the common intention of the accused person is based upon 
artificial reasoning which to us was not required at this stage otherwise it 
is established principle of law that while adjudicating a matter regarding 
the bail only tentative assessment has to be made which has been 
established while enunciating the same by this Court from time to time in 
various judgments including PLD 2015 SC 66 (Ghulam Qammber Shah 
Vs, Mukhtiar Hussain and others) and 2020 SCMR 937(Bilal Khan vs, The 
State through PG Punjab) otherwise the respondents remained absconder 
for more than 02 years and 03 months which aspect has altogether 
ignored by the learned single bench.  
7. 
 
These are the reasons of our short order of even date which 
reads as under: - 
“For the reasons to be recorded later, this petition is 
converted into appeal and is allowed. The bail granted to the 
respondents through the impugned judgment of the 
Peshawar High Court, is recalled and the respondents are 
directed to be taken into custody forthwith.  
 
 
 
 
 
 
 
 
 
 
Judge 
 
 
Judge 
Islamabad,  
08.10.2020 
Approved for reporting 
Syed Rashid Maqsood/* 
