Cross case bail on less evidence on who was aggressor.

Yahya Afridi, J.- 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 decidendi of the following

cases:

To constitute a cross-case, the mere assertion of a countercase 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 narrated 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 in appropriate cases is

granted as a rule on the grounds of further inquiry for the

reason that the question as 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

further inquiry, as provided under section 497 of Cr.P.C.4

In cross-cases, wherein one party is granted the concession

of bail, similar treatment is also rendered to the other side.5

In the instant case, distinct versions of how the events unfolded,

which lead to the commission 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 do not prima facie

put forth which party was an aggressor, as it was a common path close

to the dwelling place of both parties, and both were armed with firearms.

Admittedly, both parties have recognised the general role of firing

firearms at each other, leading to injuries on both sides. In particular,

the petitioner has not been reported to having had an effective role in

causing injury to any of the two deceased or injured persons.

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 granted bail after arrest

vide orders dated 07.09.2022, 12.10.2022, and 27.10.2022. And thus,

denying bail to the petitioner in FIR No. 681, when the two cases prima

facie are cross-cases, would not be appropriate.

It would also be pertinent to note that a counter version put forth

by a party which is contrary to the one already rendered by a

complainant in an FIR, if it fulfils the essentials of a cross-case as to the

time and place of the commission of an offence; would constitute a crosscase, and it cannot be declared to be otherwise solely on the ground that

the party claiming its version to be a cross-case did not allege selfdefence in the counter version of the events leading to the commission of

the offence and recording of the FIR in which he is nominated as an

accused.

Accordingly, this petition is converted into an appeal, and the same

is allowed. Consequently, the petitioner is admitted to bail subject to

4 Jaffar v. State 1980 SCMR 784; Muhammad Aslam v. State 1997 SCMR 251.

5 Hamza Ali Hamza v. State 2010 SCMR 1219; Muhammad Ashiq v. State 2013 YLR 1133.

Criminal Petition No. 183-P of 2022

furnishing a bail bond in the sum of Rs. 100,000/- (Rupees one hundred

thousand only), with two sureties in the like amount to the satisfaction of

the trial court.

Above are the reasons for respectfully differing from the majority

opinion of my learned brothers in the instant case.

Judge

Islamabad

07.03.2023

Not approved for reporting.

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