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Criminal Petition for Special Leave to Appeal No. 342 of 1968, decided on 13th December 1968.
(On appeal from. the judgment and order of the High Court of West Pakistan, Lahore, dated the 28th November 1967, in Criminal Appeal No. 870 of 1966).
, Art. 58(3) and Criminal Procedure Code (V of 1898), S. 497(2)‑Special leave to appeal granted against order of acquittal in a murder case‑Pending appeal non‑bailable warrant issued against acquitted accused‑Petition for bail pending appeal‑Contention that bail be granted case being one falling under provisions of S. 497(2), Cr. P. C.‑Held, provisions of S. 497(2), Cr. P. C. not applicable to case where leave granted against order of acquittal.
Ghulam Mujadid Mirza, Senior Advocate Supreme Court (absent) instructed by Wajid Hussain, Senior Attorney for Petitioner.
Aftab Farrukh, Advocate Supreme Court instructed by Abdul Karim, Attorney for Respondent No. 1.
Nemo for Respondents Nos. 2 to 7.
Abdus Samad Hashmi, Advocate Supreme Court instructed by Ijaz Ali, Attorney for the State.
Date of hearing : 13th December 1968.
.‑This is an application for bail by Khushi Muhammad. He and six others were convicted under sections 302/149/148/450/326, 325 and 201, P. P. C. by the Additional Sessions Judge, Lahore. He was sentenced to death and others to transportation for life under section 302/149, P.P. C. On appeal a Division Bench of the High Court of West Pakistan acquitted them of all the charges. Leave was granted to Muhammad Ismail, the brother of the deceased to appeal from the order of acquittal. It was directed that while bailable warrant would issue against the others non‑bailable warrant would issue against Khushi Muhammad. Hence this petition.
The learned counsel for the applicant argues that this case falls under section 497(2), Cr. P. C. as leave in this case has been granted against an order of acquittal. The provision relied upon by the learned counsel has no application to a case where leave is granted against an order of acquittal.
It is next contended that in view of the decision of this Court reported in P L D 1962 S C 495 the applicant is entitled to bail.
The facts of the instant case are clearly distinguishable from the facts of that case.
The applicant was found by the Additional Sessions Judge to have led a number of armed persons for a fatal assault on the deceased to avenge a petty incident and to have started the attack. His case is clearly distinguishable from the cases of others who are also convicted by the learned Additional Sessions Judge under section 302/149, P. P. C.
The application for bail is dismissed.
Petition dismissed.
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