Ahmad Ali v. The State through A.G. Khyber Pakhtunkhwa, Peshawar and another

Supreme Court of Pakistan · 2023 · Before (1) Mr. Justice Qazi Faez Isa (2) Mr. Justice Yahya Afridi

There appears to be judicial consensus that the application of principles for the grant or refusal of bail in ‘cross -cases’ depends on the particular facts and circumstances of each case . This proposition can be illustrated by the ratio d ecidendi of the following cases:

I. To constitute a cross-case, the mere assertion of a counter- case is not enough. Courts are to tentatively assess that the parties, the venue, and the transaction prima facie led to the result of a single incident narra ted differently by the opposing party. The rationale is that frivolous and false counter-cases, which can exaggeratedly be set up by the opposite party, do not gain an advantage of the general rule and benefits arising out of a counter-case.1

II. In cases of counter versions arising from the same incident, one given by the complainant in the F.I.R. , and the other given by the opposite party, bail i n appropriate cases is granted as a rule on the ground s of further inquiry for the reason that the question a s to which version is correct is to be decided after the recording of pro and contra evidence during the trial , and also to ascertain which party was the aggressor and which party was aggressed upon. The refusal of bail in such cases is an exception.2

III. The exception to the rule of the grant of bail is in cases of counter versions or cross -cases, where prima facie the facts of the case suggest that the party seeking bail was an aggressor and /or the material on the record suggests that the said party had an effective role in causing fatal injury.3

IV. In counter versions of opposing parties, without specifying an effective role in causing fatal injury , leaves room for consideration of rendering a case within the purview of

1 Arif Din v. Amil Khan 2005 SCMR 1402; Mushtaq v. Lakhkar Khan 2013 YLR 2046; Liaqat Ali v. State 2013 SCMR 1527. 2 Fazal Muhammad v. Ali Ahmed 1976 SCMR 391; Shafiqan v. Hashim Ali 1972 SCMR 682; Khalid Mehmood v. Muhammad Kashif Rasool 2013 SCMR 1415. 3 Nasir Muhammad Wassan v. State 1992 SCMR 501; Rashid Ramzan v. State 2022 SCMR 2011. Criminal Petition No. 183-P of 2022 2 further inquiry, as provided under section 497 of Cr.P.C.4

V. In cross-cases, wherein one party is granted the concession of bail, similar treatment is also rendered to the other side.5

2. In the instant case , distinct versions of how the events unfolded, which lead to the commissi on of the crime, have been put forth by the contesting parties. The time and place of the occurrence are admitted by both parties. However, the facts of the present case d o not prima facie put forth which party was an aggressor , as it was a common path clo se to the dwelling place of both parties, and both were armed with firearms.

3. Admittedly, both parties ha ve recognised the general role of fi ring firearms at each other , leading to injuries on both sides. In parti cular, the petitioner has not been reported to hav ing had an effective role in causing injury to any of the two deceased or injured persons.

4. It is also noted that the complainant party in FIR No. 681, who are accused of the general role of firing resulting in injury to five persons belonging to the petitioner’s side , have all been gran…

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