NASIM HASAN SHAH, J,--This order will dispose of to Criminal Petitions, bearing Nos. 133 and 134 of 1978, which arise out of the same incident. By these to separate petitions, the complainant petitioner, Muhammad Fazil, seeks leave to appeal against to separate orders dated 8-4-1978 and 25-2-1978 of a learned Single Judge of the Lahore High Court passed in Criminal Miscellaneous No. 257-B of 1977 and Criminal Miscellaneous No.777-B of 1978, respectively, whereby accused Aurangzeb, Muhammad Banaras and Tahir (respondents 1 to 3 in Criminal Petition No.133 of 1978) were admitted to bail in a case registered against them under sections 302/307/149 and 148, P.P.C., and on the same charges in the same case the bail granted by the learned Additional Sessions Judge, Rawalpindi, to one of the other co-accused, namely, Nur Hussain (respondent No.1 in Criminal Petition No.134 of 1978) was not cancelled.
The facts forming the background of both these petitions, briefly stated, are that Muhammad Fazil complainant-petitioner, lodged an F.I.R. On 17-2-1977 at 5-25 p.m. Against the respondents herein and their five co-accused for the offences under sections 302/307/149 and 148, P. P. C., on the allegations that on the same day at about 4.30 p. m. In the compound of a Baithak near Qamar Hotel of Mandra Town, Tehsil Gujar Khan, District Rawalpindi, they formed an unlawful assembly while armed with deadly weapons and in prosecution of the common object of the said assembly they caused the murders of Qamaruz Zaman and Khaliq Dad deceased and also attempted at the life of the complai--nant-petitioner. According to the allegations in the F. I. R., Noor Hussain, Altaf Hussain, Khalid, Muhammad Ramzan, Aurangzeb, Muhammad Banaras and Ali Muhammad (accused) were armed with pistols whereas Iftikhar Hussain and Tahir accused were armed with 7 m.m. Rifles. Fire shots of Noor Hussain and Altaf Hussain accused allegedly hit Qamaruz Zaman deceased whereas the fire shots of Khalid and Iftikhar Hussain accused hit Khaliq Dad deceased.
The occurrence was allegedly witnessed by Muhammad Fazil petitioner, brother of Khaliq Dad deceased, Ali Asghar and Muhammad Sarwar P.Ws. Khaliq Dad succumbed to his injuries to the spot whereas Qamaruz Zaman died afterwards on the same day. Lftikhar Hussain accused was also injured during the incident.
3. The motive, as disclosed in the F.I.R., is that Gul Hassan, a relation of the accused-party, was murdered on 2-11-1974 and the complainant-party was involved in that murder. In order to avenge the murder of Gul Hassan, the accused party allegedly committed the murder of Qamaruz Zaman and Khaliq Dad deceased.
4. The fact leading to the filing of these petitions for leave to appeal are that Noor Hussain (respondent No.1 in Criminal Petition No. 134 of 1978) moved an application for pre-arrest bail before the Lahore High Court on the plea of alibi. According to him he was at the the of occurrence in Lahore in connection with a bail application (Criminal Miscellaneous No.569-B of 1978) and that he got his affidavits attested by an Oath Commissioner at Lahore on the same day. This application was, however, rejected by a learned Single Judge of the Lahore High Court vide order dated 16-3-1977, on the ground that it was a day the occurrence (which took place at 4-30 p.m.).
So far as the bail application Criminal Miscellaneous. No.596-B of 1977) was concerned, it must have been filed before 11.00 a.m. The place of occurrence was only 155 miles away and could be reached in a car within about three hours.
5. The members of the accused-party including Noor Hussain (respondent No.1 in Criminal Petition No.134 of 1978) thereafter applied for the grant of bail after arrest before the Additional Sessions Judge, Rawalpindi, on 1-9-1977. In their bail application the accused gave their own version of the alleged occurrence and stated that Qamaruz Zaman deceased fired at Iftikhar accused; whereupon indiscriminate firing, ensued from both sides and in consequence whereof Qamaruz Zaman and Khaliq Dad lost their lives. As regards Noor Hussain, it was stated that his case was * under investigation with the Crimes Branch and that he was also a sick and infirm person. The learned Additional Sessions Judge, Rawalpindi, by his order dated 3-10-1977, found that the Deputy Superintendent of Police, Crimes Branch, had found him innocent. He, accordingly, granted bail to him. However, the bail application in respect of the remaining accused was rejected.
6. Aggrieved by the order of the Additional Sessions Judge granting bail to Noor Hussain, Muhammad Fazil petitioner moved an application in the Lahore High Court (Cr. Misc. No.4102-B of 1977) for the cancella--tion of his bail, on the ground that the investigation by the Crimes Branch had not been finalized and the Superintendent of Police, Crimes Branch, and the Deputy Inspector- General of Police were still investigating the matter. It was further submitted that the Crimes Branch had not placed Noor Hussain (accused-respondent) in column No.2 in the challan declaring him innocent. This application was, however, dismissed vide order dated 19-11-1977 passed by a Judge of the High Court, with the observations that Noor Hussain was found innocent by the Deputy Superintendent and Superintendent of Police, Crimes Branch, who personally conducted the Investigation.
7. After the dismissal of the above petition the Crimes Branch finalized its investigation and the Deputy Inspector-General, disagreeing and, accordingly, in the final report under section 173, C.P.C.
Submitted to the trial Court, the Police found all the accused guilty of the offence. The complainant-petitioner, Muhammad Fazil, therefore, again moved an application for the cancellation of bail to Noor Hussain (Criminal Miscellaneous No. 777-B of 1978) before the High Court. This application came up for hearing before the same learned Judge who had dealt with the matter earlier and he again, by his order dated 25-2-1978, dismissed the same on the ground that the finding of the Deputy 1,nspector- General cannot take away the effect of the findings of the Deputy Superintendent and the Superintendent of Police, Crimes Branch, and that his case requires further probe and covered under subsection (2) of section 497, Cr.P.C.
8. Meanwhile, Muhammad Ramzan, Aurangzeb, Muhammad Banaras and Tahir (respondents 1 to 3 in Criminal Petition No.133 of 1978) filed, an application (Criminal Miscellaneous No 257-B of 1977). A learned Single Judge allowed bail to Aurangzeb, Muhammad Banaras and Tahir respondents by his order dated 8-4-1978, as there was no specific allegation that they had fired shots at the spot and no specific part was attributed to them. Muhammad Ramzan, however, was refused bail as he had allegedly participated actively in the occurrence.
9. Aggrieved by the aforesaid to orders of the Lahore High Court dated 25-2-1970 and 8-4-1978 Muhammad Fazilhas filed these petitions for leave to appeal.
10. Before us, the learned counsel appearing in support of these petitions has submitted that it was a daylight occurrence on a highway, in which to persons were killed and bail ought not to have been allowed in such a serious case. So far as the case of Noor Mohammad, (respondent No.1 in Criminal Petition No.134 of 1978) is concerned, there is difference of opinion on the question of his participation between the D.S.P. And S.P. On the one side and the D.I.G. Police on the other. Hence the learned Judge in the High Court was justified in holding that the question was one of further inquiry and, therefore, a fit case for grant of bail. Ch. Nazir Ahmad Khan, however, stated that bail had been granted at a point of the when the D.S.P. And the S.P. Had expressed the opinion that Noor Hussain was innocent, but the position had been effected by the later finding of the Deputy Inspector-General of Police that Noor Hussain was guilty. We were the opinion that this being a new ground the petitioner could move the s High Court afresh. However, on a careful perusal of the record we find that this opportunity has already been availed of by the petitioner by preferring Criminal Miscellaneous No.777-B of 1978, which was dismissed by the order dated 25-2-1978. The order being a discretionary done and based on plausible reasoning. We are not inclined to interfere with it. Criminal Petition No.134 of 1978 is, accordingly dismissed.
11. Similarly, we find no ground for interfering with the order dated 9-4-1978 passed in Criminal Petition No.133 of 1978, allowing bail Aurangzeb, Banaras and Tahir. No doubt, the said respondents are tamed in the F.I.R., but it is not stated therein whom they fired upon. It is admitted that their firing was ineffective and in the background of the enmity between the parties the discretion exercised by the High Court to grant them the concession of bail is not open to exception. Criminal Petition No. 133 of 1978, is, therefore, also dismissed.