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Petitions for Special Leave to Appeal Nos. 102 & 260 of 1976, decided on 16th August, 1982.
(On appeal from the two orders of the Lahore High Court, dated 3-2-1976 and 12-4-1976 in Cr. Misc. No. 162-B and 1346-B of 1976).
-- Art. 185(3) read with Criminal Procedure Code (V of 1898), Ss. 497 & 498-Bail-Disputee,question of fact raised in petition-To be gone into after recording evidence at trial-High Court in view of allegations in F. I. R. and material in possession of prosecution, declining to enlarge petitioner on bail-No case, made out for inter ference with such order by Supreme Court-Leave to appeal referred:
Ch. Mushtaq Masood, Advocate, instructed by Sh. Abdul Karim, Advocate on-Record for Petitioner.
Nemo for Respondent.
Arif Iqbal Hussain Bhatti, Advocate instructed by Salim Ahmad Malik, Advocate-on-Record for Petitioner.
Nemo for the State.
Date of hearing : 16th June, 1976.
These two cases are the outcome of an old dispute concerning a piece of land, which went up to Supreme Court. On 16-7-1975, the High Court accepted appeal of the accused party but then the complainant party filed a petition for special leave to appeal No. 780 of 1975 and on 4-96-1975 a learned Judge of this Court passed an interim stay order directing that the position factually prevailing as on that date should be preserved during the pendency of the main petition. However, it is alleged that the accused party had already obtained possession of the land through the Revenue Officer on the 31st July, 1975 in accordance with, law. But on the other hand, the case of the complainant party is that they have continued to remain in physical possession of the land as before and were never lawfully ejected there from.
On the 21st September 1975, at the instance of Ghulam Muhammad complainant, an F. I. R. was registered at the Police Station Bhakkar District Mianwali against Allah Ditta petitioner in criminal petition for special leave to appeal No. 102 of 1976, Khaliq Dad and Mitha, the two petitioners in criminal petition for special leave to appeal No. 260 of 1976 and 4 others under section 302/307/148/149, P. P. C. for the murder of Khadim Hussain and for murderous assault on the eye-witnesses. It is alleged by the prosecution that the seven accused brought five tractors for ploughing the vacant land in dispute belonging to Khadim Hussain deceased. But Ghulam Muhammad, Ghulam Rasool, Haq Nawaz, Ghulam Qasim P. Ws. and Khadim Hussain deceased offered resistance. It is further alleged that Khaliq Dad, Mitha, Khadim and Soba accused were armed with guns, Allah Ditta had a revolver while Talib and Iqbal were empty-handed. Allah Ditta petitioner fired at Khadim Hussain, but missed him. Thereafter, Khaliq Dad accused fired with his gun hitting him on the chest resulting in his death on the spot. As a result of the firing, Haq Nawaz, Ghulam Qasim and Ghulam Rasool P. Ws. also received pellet injuries which were declared to be simple. This led to the report lodged by Ghulam Hussain complainant registered at the police station.
All the seven accused, together applied for bail but their application dismissed by the Sessions Judge, Mianwali on the 3rd January, 1976. There after six of the accused excepting Khaliq Dad jointly applied to the High Court for bail. On the 3rd February, 1976, a learned Judge of the High Court allowed bail to Talib and Iqal accused who were according to the prosecution case, empty-handed and had raised lalkara only. The Court, however, rejected the application of the remaining four accused.
In these two petitions we have heard the learned counsel for the petitioners. He has strenuously argued before us that there was ample material produced on the record to show that the petitioners had entered into possession of the land under the decree of the High Court and that the complainant party committed the trespass and was the aggressor. a This is a disputed question of fact and a matter to be gone into after recording the evidence at trial. At this stage, the High Court was justified in refraining from expressing any opinion in that behalf. On the allegations in the F. I. R. coupled with the material in possession of the prosecution, the High Court has declined to enlarge the petitioners on bail and there is no case made out for our interference with the order.
These petitions have no force, and are, therefore, dismissed.
Petitions dismissed.
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