From the desk of Syed Farhad Ali Shah – Advocate Supreme Court of Pakistan 2022 SCMR 676

2022 SCMR 676

[Supreme Court of Pakistan]
ABDUL MAJID AFRIDI---Petitioner
Versus
The STATE and another---Respondents
Present: Maqbool Baqar and Sayyed Mazahar Ali Akbar Naqvi, JJ
Criminal Petition No. 632 of 2021, decided on 8th November, 2021.
(On appeal against the order dated 24.05.2021 passed by the Peshawar High Court, Peshawar
in Crl. M. B.A. No. 1148-P of 2021)
(a) Criminal Procedure Code (V of 1898)---

----S. 497(5)---Constitution of Pakistan, Art. 185(3)---Penal Code (XLV of 1860), Ss. 302, 324,
148, 149, 109, 427, 353 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Murderous assault
resulting in death of a judge of the subordinate judiciary---Petition for pre-arrest bail filed directly
before the High Court without first approaching the Sessions Court---Propriety---Held, that
jurisdiction of the Sessions Court and the High Court was concurrent in nature---High Court while
adjudicating the matter of pre-arrest bail had given cogent reasons especially when it was admitted
that one of the deceased was himself a District and Sessions Judge, therefore, any order passed
either way would have been considered prejudicial because of the reason that the deceased was
member of the district judiciary---Even otherwise, the accused had not availed the remedy before
the Session Court, which was available to him while agitating his grievance before the High Court,
therefore, he lost one opportunity causing no prejudice to the complainant party---Petition for pre-
arrest bail filed by the accused directly before the High Court was competent.

(b) Criminal Procedure Code (V of 1898)---

----S. 497(5)---Constitution of Pakistan, Art. 185(3)---Penal Code (XLV of 1860), Ss. 302, 324,
148, 149, 109, 427, 353 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Murderous assault,
conspiracy to murder---Petition for cancellation of pre-arrest bail, dismissal of---Complainant
while lodging crime report had not mentioned specific date, time and place where the conspiracy
was hatched---Even name and number of witnesses to that extent was not incorporated while
lodging the FIR---One of the co-accused, who was taken into custody, made a confessional
statement under S. 164, Cr.P.C., wherein he stated that the accused being head of the family
instigated others to commit the occurrence---However said statement of co-accused except being a
statement at most did not advance the prosecution case---Petition seeking cancellation of pre-arrest
bail granted to accused was dismissed and leave was refused.
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From the desk of Syed Farhad Ali Shah – Advocate Supreme Court of Pakistan 2022 SCMR 676

(c) Criminal Procedure Code (V of 1898)---

----Ss. 497 & 498--- Constitution of Pakistan, Art. 185(3)--- Bail---Confessional statement of co-
accused, relevance of---Statement of one accused could not be used against the other in absence of
any attending material produced by the prosecution.

Nouman Khan v. The State 2020 SCMR 666 and Muhammad Sarfraz Ansari v. The State
PLD 2021 SC 738 ref.

(d) Criminal Procedure Code (V of 1898)---

----Ss. 497, 497(5) & 498---Constitution of Pakistan, Art. 185(3)---Bail and cancellation of bail---
Distinct considerations---Considerations for the grant of bail and cancellation thereof were
entirely on different footings---Generally speaking, the Courts were reluctant to interfere in the
order of grant of bail and even in cases where it was apparently found that the bail granting order
was not sustainable in the eyes of law, the Courts restrain to interfere in such matters if it was
found that there was nothing to show that the accused had misused the concession of bail.

Shahid Arshad v. Muhammad Naqi Butt 1976 SCMR 360 and Samiullah v. Laiq Zada 2020
SCMR 1115 ref.

Sher Afzal Khan Marwat, Advocate Supreme Court and Mehmood Ahmed Sheikh, Advocate-
on-Record for Petitioner.

Anis Muhammad Shahzad, Advocate Supreme Court and Namir, I.O. for the State.

Date of hearing: 8th November, 2021.

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