1. WAHEEDUDDIN AHMAD, J.-This appeal by special leave is directed against the order of the Lahore High Court in Criminal Misc. No. 773/B of 1972, dated the 5th May 1972. By this order, the bail order dated the 14th of April 1972, was confirmed.
2. The appellant's husband Alam Ali was alleged to have been murdered by respondents Nos. 1 and 2 on the 5th April 1972. F. I. R. No. 63/7-) was lodged in that connection on the 6th April 1972, at Police Station Jahanian, District Multan, by one Abdul Jabbar son of Muhammad Bakhsh. Respondents Nos. 1 and 2, who were alleged to lave committed the murder, disappeared and without approaching the learned Sessions Judge, applied to the Lahore High Court for bail before arrest in Criminal Misc. No. 773/B of 1972. A learned Single Judge of the Lahore High Court admitted the two respondents to interim bail on the 14th April 1972 and confirmed the same on the 5th May 1972. The appellant challenged this order in Petition for Special Leave to Appeal No. 107 of 1972 and special leave was granted to her to consider the question whether the bail has been granted to respon-- dents Nos. 1 and 2 on sound judicial principles.
3. Mr. A. S. Salam, learned counsel for the appellant has contended that the respondents were clearly named in the F. I. R. As culprits duly armed with fire-arms and having specifically fired at and having killed the deceased Alain Ali. He further contended that the two respondents admitted their presence in the application for bail but gave a different version for the encounter. The learned counsel further contended that the learned Single Judge has actually gone into the merits of the case in admitting the respondents to bail and has thus prejudiced of the investigation. According to the learned counsel, the order also prejudice the commitment proceedings and the trial Court may be influenced by the fact that they have been released on bail on consideration of the merits of the case.
4. In replying, Mr. Saeed-ur-Rehman Khan, learned counsel for the respondents has contended that the allegation against the respondents is that they committed the murder of Alain Ali and made murderous assault on his son Mushtaq Ahmad, residents of Chak No. 135/10-R, Tehsil Khanewai, Police Station Jahanian on the 5th April 1972. The learned counsel contended that Alam Ali and Mushtaq Ahmad murdered Nisar Ahmad son of Suba respondent and made murderous assault on Zakir Hussain son of Usman, maternal son of Hasham Ali, brother of Suba respondent. The local police colluded with Alam Ali and Mushtaq Ahmad accused in a murder case and did not make serious efforts to arrest them although they roamed in the locality. The respondents approached higher authorities but it was without any result. On the 5th April 1972, towards the evening, the respondents went to their field to see their wheat crop in square No. 23, while Alam Ali and Mushtaq Ahmad emerged from behind a Khola, situated in Killa No. 18, Square No. 15 which adjoins Square No. 23. Alam Ali and Mushtaq Ahmad were armed with guns and they shouted a lalkara at the respondents and fired at them. The respondents took shelter in the dry water--course lying In between the two squares and they also fired in reply and shouted at them to surrender but they resisted and in the encounter Alam Ali was killed and Mushtaq Ahmad was injured who ran away.
5. On these facts, the learned counsel contend--ed that sections 45 and 59 of the Criminal Procedure Code come into play and the respondents were entitled to use force in arresting the deceased and Mushtaq Ali.
6. After hearing the learned counsel for the parties, we art; satisfied that the learned Single Judge of the High Court has not applied its mind properly to the facts of this case. The order by which the bail was confirmed is not a speaking order and does not give any reason for confirming the bail. In these circum. Stances, no valid order has been passed and the order confirming the bail is liable to be set aside for this reason. We would, therefore, set aside the impugned order and remand the case back to the High Court for considering the facts whether the respondents Nos. 1 and 2 should be released on bail. Respondent No. 2 has been released on bail during the pendency of this appeal. He will continue to remain on bail but his case will also be considered by the High Court on merits.
7. In the result, the appeal is allowed.