' ZAFFAR HUSSAIN MIRZA, J.-This petition for special leave to appeal calls in question the judgment, dated 31-10-1983 by a Division Bench of the High Court of Baluchistan, Quetta, dismissing the Constitutional Petition filed by the petitioners against the orders passed by the Addittional Commissioner, Quetta Division, Quetta and Member, Board of Revenue, Baluchistan, Quetta, cancelling the to them.
2. Brief facts forming the background of this case are that in an occurrence which took place on 11- 2-1981 near village Shinaponga in District Zhob in the Province of Baluchistan, in which two persons, namely, Haji Noor Muhammad and Gul Muhammad were murdered and two others received injuries as a result of gun fire. On the complaint of Haji Lal Gui accusing 38 persons as participant of the criminal transaction, a challan was submitted against 22 accused on 30-9-1981. It seems that the accused persons were detained but some of them were released. However, 13 accused including the present petitioners were detained and their bail applications were rejected. Since the place of occurrence falls within the tribal area the case was eventually referred to a Tribunal under Ordinance It of 1968 headed by the Assistant Commissioner, Lower Zhob. The petitioners repeated their request for bail and the President of the Tribunal recommended their release by his report dated 7-4-1982 to the Deputy Commissioner but the latter referred back the case to the Assistant Commissioner advising him to dispose of the matter as in his capacity as the President of the Tribunal exercising the powers of the Deputy Commissioner, he was competent to exercise jurisdiction in the matter. Consequently by a further order dated 12-4-1982 the Assistant Commissioner released the petitioners on bail.
3. Respondent Haji Gul challenged the order before the Commissioner, Quetta by an appeal which was disposed of by the learned Additional Commissioner as per his order dated 5-8-1982, who accepted the same, set aside the order dated 12-4-1982 passed by the Assistant Commissioner and cancelled the to the petitioners. A revision filed by the petitioners before the Board of Revenue having failed, they challenged the order cancelling their bail in the constitutional jurisdiction, of the High Court but their petition as observed earlier was dismissed by the impugned judgment.
4. In support of the petition we have heard Mr. Yahya Bakhtiar and have also heard Mr. Basharatullah for respondent No, 1 and the learned Advocate-General on behalf of State. On a perusal of the impugned order of the Additional Commissioner dated 5-8-1982 we find that the officer based his decision on an earlier order of the Deputy Commissioner dated 20-10-1981 by which bail was granted to 9 co-accused and in which it was observed that sufficient evidence was available against the rest of the accused, held that since then no progress bad been made in the case or any other circumstances had developed so as to entitle the petitioners to release on bail. It was forcefully contended by Mr. Yahya Bakhtiar that the learned Additional Commissioner had wholly misconcieved the position, misread the record and failed to apply his mind in passing the order against the petitioners. In this context he invited our attention to another order passed by the learned Commissioner, Quetta Division dated 24-2-1982 which was wholly ignored and over looked by the learned Additional Commissioner. In this order it was observed as under :- "The incident was of a nature in which a large number of people participated, as it become almost an open fight between the two contending groups of the same village. Therefore, it appears fairly difficult to establish exact contribution and a liability of each accused in this fight."
' By this order passed in appeal, although the learned Commissioner expressed the opinion that the presence of the remaining accused who were not released on bail was established from the fact that they were arrested from the scene of occurrence, he made the following directions in the operative part of the order : "The case is returned to the lower Court with the directions that they should consider the position of each accused on merits and turned."
It was in persuance of this order that the fresh applications submitted by the petitioners were reconsidered and bail was granted to them by the President of the Tribunal.
5. After hearing the learned counsel we are of the opinion that the learned Additional Commissioner did not apply his own independent mind to the facts and circumstances of this case and merely proceeded on an erroneous assumption that the second order for the grant of bail was passed by the President of the Tribunal without any change in circumstances. In order to satisfy ourselves we asked the learned counsel for respondent No, 1 whether there was any ocular testimony against the petitioners and he very fairly conceded that there was none. He, however, contended that there was other sufficient evidence against them but against he conceded that the same has not been placed on the record so far. As he learned Advocate-General, however, did not object to the release of the petitioners on bail and only objected to the constitutional points urged in the petition.
6. After hearing the learned counsel at some length we are of the opinion that in ignoring material considerations on record the learned Additional Commissioner had exercised his jurisdiction illegally and, therefore, his order is not sustainable. The petitioners were rightly released on bail on a tentative assessm ent of the evidence and in any case there complicity in the crime requires to be further enquired into at the trial. Additionally the punishment provided for the offence is neither death nor the transportation for life.
7. In this view of the matter we convert this petition into appeal and allow the same. The result is that the petitioners are granted bail in the terms of the interim order passed by this Court which is confirmed.