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Criminal Petition for Special Leave to Appeal No. 252 of 1979, decided on 27th June 1979.

(On appeal from the order dated 19th May 1979 of the Lahore High Court in Criminal Miscellaneous No. 1204; B of 1979).

--‑ S. 497‑Bail‑High Court while releasing respondents on bail ‑impressed by circumstance of investigation revealing deceased being armed with a gun and to have opened fire first although un-success‑ fully and one of respondents having used his pistol thereafter High Court in circumstances expressing view ‑of case of such respondents being covered by S. 100, cl. firstly of Penal Code (XLV of 1860)‑High Court also finding death of deceased being not due to any injury caused by blow allegedly inflicted by another respondent‑No exception, held, could be taken to High Court's view of respondents being entitled to concession of bail in circum stances.

Mian Sher Alam, Advocate Supreme Court and Ch. Muhammad Aslam, Advocate‑ on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing : 27th June 1979.

.‑This petition for leave to appeal is directed against the order dated 19‑5‑1979 of the Lahore High Court whereby Muhammad Asghar and Muhammad Akhtar (respondents herein) were enlarged on bail.

The respondents herein along with others are accused of offences under section 302/1481307/149, P. P. C. Originally they were accused of offences falling under sections 307/149 and 148, P. P. C., but on the death of Iqbal section 302, P. P. C. was also added.

According to the F. I. R. lodged by Riasat Ali (petitioner herein) the respondents along with others, while variously armed, waylaid Iqbal deceased and others and injured them. Asghar respondent, who was allegedly armed with a pistol fired a shot on Iqbal deceased hitting him in the abdomen while Muhammad Akhtar respondent inflicted a sota injury on his head. The accused moved the Sessions Judge for bail who rejected the application of the respondents herein, but admitted the co‑accused to bail. Both the respondents, therefore, approached the Lahore High Court and a learned Judge thereof was pleased to release them also on bail, Hence this petition.

It is submitted before us that the respondents are, prima facie, guilty of murder in that they along with ten co‑accused while variously armed waylaid the complainant party and attacked the deceased and others as a result whereof the deceased was done to death. It was a day time occurrence which was witnessed by six witnesses out of whom four have absolutely no connection with the complainant, party. In these circums tances the High Court had exercised its discretion perversely in granting bail to them.

We regret we cannot agree. The High Court while releasing the respondents on bail appears to have been impressed by the circumstance that the investigation revealed that the deceased was armed with a gun and he was the first to open fire, although unsuccessfully, where after Muhammad Asghar respondent used his pistol. The learned Judge in the High Court, therefore, expressed the view that the case of Muhammad, Asghar respondent was covered by clause first to section 100, P. P. C. He also opined that the death of the deceased was not due to any injury caused by the blow allegedly inflicted by Akhtar respondent. In this view of the matter the respondents herein were also found entitled to the concession of bail. No exception can be taken to the exercise of discretion by the High Court in favour of the respondents in these circumstances. This petition is accordingly dismissed.

Petition dismissed.

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