1. DORAB PATEL, J.-Yousaf died as a result of a barchhi blow inflicted on him on 3-5-1975, P. W. Taj Din was with him at the time of the occur--rence and also received injuries. The F. I. R. Was lodged by Yousaf himself who died the next day, therefore, the charge against the petitioners and the other accused was altered to section 302, P. P. C. Now according to this F. I. R. The deceased and P. W. Taj Din had been attacked by four persons : Hassan who was armed with a p1stol and gave a lalkara.
2. Bashir Ahmad, who was armed with a Barchhf and who inflicted the fatal- blow to the deceased, the first petitioner who was armed with a hatchet and hit P. W. Taj Din with it and the second petitioner who was armed with dang and bit P. W. Taj Din with it. After their arrest the accused Hassan had obtained bail presumably on the ground that no overt act had been attributed to him in the F. I. R. Lodged by Yousaf, deceased. The relevant order has not such details as are sufficient to State that the petitioners had also sought bail, and their application was dismissed by the High Court on the ground that specific acts had been attributed to them in the F. I. R. And that the charge against them was under sections 302, 307/326 and 34, P. P. C. The petitioner's have, therefore, filed this petition for leave against the High Court's order dismis--sing their prayer for bail.
3. We are aware that there has been great delay in this case and as stressed by learned counsel the deceased died as a result of a single blow which was not inflicted by the petitioners. Learned counsel, therefore, submitted that the High Court erred in. Holding that the petitioners were liable under section 34, P. P. C. But the question was within the High court's discretion, and it cannot be contended in the circumstances of the case, that the High Court's finding is perverse.
4. Learned counsel, however, attempted to argue that the High Court's finding was perverse, because, according to him, it was the deceased and P. W. Taj Din who had come and attacked the petitioners and their co-accus--ed. In support of this submission learned counsel relied on the fact that the occurrence took place at a tube-well and as according to him, the tube-well belonged to the party of the petitioner, the contention was that the injuries inflicted by Bashir Ahmad, the co- accused, and the petitioners, had been inflicted in exercise of their right of self defence. The argument hinges on the assumption that the tube-well belongs to Bashir Ahmad, the co-accused of the petitioner. The question is of evidence, but at this stage, we were referred to an order of the Sessions Court, Sheikhupura dated 20th December 1975, by which the Sessions Court had directed that the tubewell, where the occurrence took place with its equipment, was to be managed on supurdari basis by Bashir Ahmad the said co-accused. If this order of the Sessions Court was in force at the date of the offence, it would mean that the place of occurrence was in the possession of the party of the petitioners and that the deceased and P. W. Taj Din had gone there, there--fore, the submission was that it was the deceased who had attacked the party of the petitioners who had administered the fatal blow to him in self-defence. Now, as it is not learned counsel's case that the deceased and P. W. Taj Din were armed, the High Court would not have been justified in granting bail in view of the plea of self-defence, and as the plea is essentially one of fact which can only be decided in the light of the evidence produced in the Sessions Court, the High Court, rightly refrained from examining it.
5. Learned counsel then submitted in the alternative that at the deceased had gone with P. W. Taj Din to the petitioners, there must have been a sudden quarrel between the parties which led to the unfortunate attack on Yousaf which proved fatal. This and the other pleas relied upon by learned counsel relate to the appreciation of evidence and do not made out any ground for interfering with the exercise of the High Court's discre tion against the petitioners.
6. Finally, learned counsel pressed for bail on behalf of the first petitioner on the ground that he was a B. A. Student. This petitioner, however, has been in custody for a long period, and the plea, that he was an under-graduate, has been raised for the first time in this Court., In any case, this would not be a sufficient ground for the grant of bail he petition is without merit and is dismissed, and the first petitioner, who had been allowed interim bail shall surrender to his bail bond.