KARAM ELAHEE CHAUHAN, J.-(I) Pattan Malak (2) Nowsher and (3) Bakhtmand (respondents) alongwith one Namdad are involved in a case registered as per F.
1. R. No. 80 or 1-7-1978 at the instance of Muhammad Ismail (petitioner-complainant) for the murder of his brother Muhammad Ibrahim. According to the aforesaid F.
1. R. The occurrence took place over the fixing of a hedge by the petitioner and his deceased brother around 'their field which was objected to by the accused which resulted in exchange of fire-arm sots on both sides as a result whereof Muhammad Ibrahim received injuries and died. It is alleged in the F. I. R. That Namdad was responsible for the only fatal shot on the person of the deceased. It. Is further stated that the respondents also opened fire which however did not hit anybody.
2. The accused applied for bail which was rejected by the learned Deputy Commissioner, Swat with powers of Sessions Judge, Swat, on 6-8-1978. The accused filed an application being Criminal Miscellaneous No. 676/78 which was accepted by a learned Single Judge of the Peshawar High Court by means of his order dated 26-9-1978, qua the respondents whereas it was rejected qua Namdad accused whose fire was alleged to have killed the deceased. The learned Single Judge observed that as only an ineffective firing was being attributed to the respondents therefore they were eligible to the privilege of bail. The complainant has come up in a petition for special leave to appeal against the same to this Court and has prayed for the cancellation of the bail of the respondents.
3. Learned counsel has argued that it was a case under section 302/34, P. P. C. And as the murder of Muhammad Ibrahim has been committed as a result of the common intention of all the accused therefore merely because the firing of the three respondents remained ineffective was no ground for releasing them on bail. The contention has no merit. From the very averments in the F. I.
R., it appears, as observed by the learned Single Judge that the dispute arose suddenly over the fixing of a hedge wire around the field of the complainant which led to the opening of fire resulting in the death of Muhammad Ibrahim. In these circumstances it was open to the learned Single Judge to hold that the case of the persons whose firing did not hit anybody was apparently distinguishable even for the purpose of considering the applicability of section 34, P. P. C. At the bail stage. The matter of bail was essentially in the discretion of the High Court and if after appreciating the over all facts and the circumstances of the case it was held that the case of the respondents had some features of distinction from the case of Namdad accused, the order of the learned Single Judge cannot be said to suffer from any legal or factual infirmity of any fundamental nature so as to warrant interference by this Court. The petition has no merit and is dismissed.