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(On appeal from the judgment and order of the Lahore High Court. Lahore, dated 17th May 1977, in Cr. Misc. No. 920 of 1977).

-.- S. 302-[Murder-case]-Statement that if any accused merely Instigated commission of murder and fired at victim ineffectively he is likely to be acquitted of offence under S. 302-Held, clearly against provisions of Code-Criminal Procedure Code (V of 1898), S. 245.-[Acquittal].

---- Art 183-Bail-Supreme Court primarily a constitutional Court Hence held, not expected to go into matters concerning grant of bail by High Court-Criminal Procedure Code (V of 1898), S. 497.[Bail].

Khawaja Muhammad Farooq, Advocate instructed by Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Mujibur Rehman. Advocate instructed by Maqboal Ahmad Cadet, Advocate-on-Record for Respondent No. 1.

Nemo for Respondent No. 2.

Date of hearing : 14th September 1977.

--The petitioner seeks leave to appeal against the order of 17-5-1977 of the High Court at Lahore, granting bail to Amir Khan, respondent.

The respondent alonghwith co-accused Muhammad Akbar and Muhammad Banaris are charged under section 302 read with section 34 of the Penal Code for the murder of Amir Khan, brother of the present petitioner. The occurrence took place on 28-10-1976 in village Miens, Mehra, Police Station Chauntra, District Rawalpindi. The allegations are that the respondent armed with a gun, co-accused Muhammad Akbar and Muhammad Banaris armed with pistols, waylaid the deceased in the vicinity of the village. Muhammad Akbar raised lalkara and fired his pistol which bit the deceased in the abdomen and he fell, whereupon Muhammad Banaris fired twice both shots hitting the deceased upon the head. The part attributed to the respondent was that he continued to raise lalkaras and he fired a shot which appears not to have hit the deceased.

Learned counsel who appeared for the State in the High Court admitted that all she injuries sustained by the deceased were caused by pistol shots. The learned Judge took the view that since the respondent does not appear to have caused any fatal injury to the deceased, his role being confined merely to the raising of lalkara was pleased to allow bail to the respondent.

We are constrained to observe that on the facts alleged in the p. I. R. and the evidence to which the eye-witnesses are going to depose, it was not a fit case for bail. The reasons which have appealed to the learn:d Single Judge indicate that if any accused has merely instigated the commission of murder and fired at the victim ineffectively, he is likely to be acquitted of the offence under section 302. Such a statement of law would be clearly against the provisions of the Code.

However, since the Supreme Court is primarily a Constitutional Court and not expected to go into matters concerning grant of bail by the High/ Court, we do not feel called upon to interfere with the impugned order. The petition for leave to appeal is dismissed.

S. A. H. Petition dismissed.

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