1978 PLP 77 (SCMR)

DORAB PATEL. J‑‑Malik Daud Shah was shot dead on the night of the 20th of July 1977, and the petitioner and his son are being tried for the murder. As the petitioner's application for ball was dismissed by an Additional Session Judge, Kohat. he challenged this order in the Peshawar High Court. But as a learned Judge of the Peshawar. High wart dismissed the application for bail on 31‑10.1977, the petitioner had filed this petition for leave on which this Court ordered notice on 7‑10‑1977. The petitioner had sought bail, Inter alia, on the ground that no overt act except s Lalkara had been attributed to him that he was an aged man. The learned Judge was. however, not impressed by these pleas because the petitioner, according to the F. I. R. was armed with a fire‑arm at the time of the occurrence and he was impressed by the fact that there was no previous enmity between the parties. This latter observation had reference to the fact that the Police statements of the eye‑witnesses supported the prosecution case. In these circumstances, the learned Judge rejected the prayer for bail. Mr. Zafar Mahmood admitted that the petitioner was alleged to have been armed with a fire‑armed with a fire-arm at the time of the occurrence but he submitted that no weapon had been recovered from the petitioner nor had it been alleged that he had used the fire‑arm. Learned counsel also submitted that the petitioner was an aged man and he relied on a judgment of this Court in Abdul Aziz v. Bashir Ahmad (P L D 1966 S C 658). On our enquiries, the learned Additional Advocate‑General very fairly conceded that the petitioner was an aged man. He also admitted that there was no hope of the case being tried within one year. In this connection, he further, admitted that the final challan had not been submitted. Additionally as the only role attributed to the petitioner is that of a Lalkara, the petitioner's case is supported by this Court's judgment in Abdul Aziz's case, and as rightly stressed by Mr. Zafar Mahmood, this judgment is a judgment of the full Court. Unfortunately, the attention o the High Court was not drawn to this authority. In the circumstances discussed, we, therefore, convert the petition into an appeal and allow it. Bail in the sum of Rs. 10,000 with one surety of the like amount to the satisfaction of the Assistant Commissioner Kohat. Boil allowed