1981 PLP 771 (SCMR)

Ali Ahmad Awan, Advocate and M. A. Qureshi, Advocate-on-Record for Petitioner. Syed Farooq Naqvi, Advocate for the State. Date of hearing : 19th December, 1979. DORAB PATEL, J-The petitioners are being tried with several other accused under sections 302/452/148/149, P. P. C. for the murder and other offences committed on 1st April, 1979. After their arrest they applied for bail in the Lahore High Court and on 3rd October, 1979 some of the other accused had applied for bail but a learned Judge of the High Court observed in his order. I would not like to hear this case for personal reasons ..Therefore, this bail application by the other accused was placed before another learned Judge who allowed bail to those other accused by his order dated 7th October,1979. The three petitioners then filed their application for bail in the High Court and despite the order of the learned Judge dated 3rd October, 1979 that this case should not be placed before him, the application of the petitioners was placed before him on 29th October, 1979 and after passing the usual order for notice, the learned Judge heard the applica tion on 11th November, 1979. It would appear that the deceased had been killed by a fire-arm injury which was attributed to yet another accused one Altaf, who has not sought bail. Now, according to the prosecution, the petitioners were armed with fire-arms whilst the other accused who had been granted bail were armed with Dangs. But, as despite the charges under section 148/149 these other accused had been granted bail, the petitioners relied on this order. The learned Judge however, dismissed the bail application with the observation "the accused (who have been allowed bail) were allegedly- armed with sotas and primarily what weighed in my mind was the fact that their presence was superfluous in the presence of 4 gunmen, and, therefore, I allowed bail to them". With all respect to the learned Judge, as submitted by the learned counsel for the petitioner, the observation of the learned Judge that he had granted bail to the co-accused is not correct. Bail had been granted to those co-accused by another learned Judge of the High 'Court on 7th October, 1979 and in view of the charge under section 148/149, .the order of the other learned Judge was relevant to the claim of the petitioners. Additionally, we find that in granting bail to the co -accused, the learned Judge had in his order on 7th October, 1979, observed that there was enmity between the parties and that the deceased had been killed by a shot attributed only to one Altaf. In these circumstances, the order of bail to the other accused lends support to the claim of the petitioners and after hearing both the learned counsel we have converted the petition into an appeal and allowed it. Bail to the sum of Rs. 15,000 with two sureties of the like amount by each of the petitioners to the satisfaction of the Assistant Commissioner, Ferozewala, District Sheikhupura. Bail allowed.