1. ' DORAB PATEL, J.-The petitioners, who are brothers, are being tried with four other accused for the murder of Fida Muhammad on 27-3-78 in a Pat Feeder area in Sibi district (Baluchistan). The petitioners together with two other accused, one Shah Dost and one Bahadur, are alleged to have been armed with lathis whilst the two other accused are alleged to have been armed with guns.
2. And Mr. Sheikh Riaz, who appeared on behalf of the Advocate-General, Baluchistan, admitted that the deceased had been shot dead, In this background the petitioners and Dost Muhammad and Bahadur had applied for bail in the Sessions Court Sibi and bail had been pressed inter alia on the ground that there were no lathi injuries on the person of the deceased.
3. ' As the petitioners as well as the other two accused had been granted bail by the learned Sessions Judge, Sibi, by his order passed in June, 1978, the private complainant had filed an application in the Baluchistan High Court for the cancellation of the bail granted to the petitioners and to Dost Muhammad and Bahadur. This application come up for hearing before a learned Judge of the Baluchistan High Court who cancelled the bail granted to the petitioners but refused to cancel the bail granted to Shah Dost and Bahadur. As the petitioners were aggrieved. By the order of the High Court cancelling the bail granted to them by the Sessions Court, they had filed a petition for leave on which we had ordered notice.
4. ' The learned Assistant Advocate-General attempted to argue that there was no infirmity in the impugned order because the petitioners had been named in the F. I. R. And because it was clear that they were present at the place of the murder "with the intention of killing Fida Muhammad or with the knowledge that Fida Muhammad would be killed". This was apparently the ground on which the private complainant had sought the cancellation of bail in the High Court but in rejecting this submission the learned Judge observed: "The contention raised is that respondents were a member of the party, two of whom killed the deceased by firing and therefore they should be deemed to be the members of the unlawful assembly for the furtherance of whose common intention or object, the accused persons Dost Muhammad and Kohri killed deceased Fida Muhammad. In this connection Mr. Manawar has referred me to the statement of Muhammad Khan brother of deceased Fida Muhammad recorded by the police under section 161, Cr. P. C. But according to this statement as well it is not clear if all these persons formed an unlawful assembly or if they came to the scene of occurrence with intention of killing Fida Muhammad, or even that they had the knowledge that they would encounter the deceased there."
5. ' When we drew the attention of the learned Assistant Advocate-General to this tentative finding by the High Court he very rightly did not press his submission.
6. ' He however referred us to the grounds on which the learned Judge had cancelled the bail of the petitioners, and it is sufficient to observe here that the role attributed to the petitioners in the police statement of the brother of the deceased was that the petitioners had instigated the two accused who were armed with guns to fire at the deceased. Therefore the learned Judge observed: "The other two accused persons, namely, Shah Dost and Bahadur are not ascribed any overt act which furthered the object of murder of Fida Muhammad. So, in view of the material available so far it is difficult to say if Shah Dost and Bahadur played any part besides being present at the spot, in the death of Fida Muhammad. Their role will be determined at the trial. However; the role played b Sher Khan and Mir Khan, according to the statement of Muhammad Khan under section 161, Cr. P.
7. C. Is such which prima facie connects them with the commission of offence of murder."
8. ' Mr. Azizullah Sheikh submitted that the learned Judge had erred in holding that an overt act had been attributed to the petitioners and he rightly drew our attention to the judgments of this Court in which we have allowed bail to the persons to whom only a lalkara was attributed.
9. ' Mr. Azizullah Sheikh further submitted that according to the prosecution the petitioners had no motive for murdering the deceased. As we do not wish to make any observation which would preclude the case of the parties in the Sessions Court we would only observe that even the learned Assistant Advocate-General found it difficult to meet this objection therefore after hearing the parties we are satisfied that the High Court had erred in interfering with the discretion exercised by the Sessions Court in favour of the petitioners. Accordingly we convert this petition into an appeal and allow it. Bail in the sum of Rs, 20,000 with one surety of the like amount to the satisfaction of the Sessions Judge, Sibi, by each of the petitioners.