1. ' MUKHTAR AHMED JUNEJO, J.---Leave to appeal is sought in respect of an order dated 12-9-1994 passed by a learned Single Judge of the Lahore High Court, Lahore granting bail to respondents 1 to 4 in a case registered under F.I.R. No,62/93 of Police Station Chauntra, District Rawalpindi.
2. ' The case relates to murder of Iftikhar Ahmed and Basharat Ali and causing of injuries to P.Ws.
3. Khuda Dad, Khalid Mahmood, Nayyar Islam and Liaqut Ali on 1-7-1993 at 7-00 a.m. In the house of Khuda Dad.
4. ' As per the F.I.R., complainant Abdur Rehman was present with deceased Iftikhar Ahmed and Basharat Ali and P.Ws. Khalid Mahmood and Nayyar Islam, in the house of Khuda Dad where the latter was also present. In the meantime, respondents Ghulam Hussain, Khadim Hussin, Tanveer Hussain and Muhammad Yousaf alongwith co-accused Sabir Hussain, Seghir, Ghulam Shabbir and Imran came at the roof of house of Ghulam Hussain. They challenged the complainant and this was followed by exchange of abuses. The complainant party went to the roof of the house.
5. Respondent Khadim Hussain fired his rifle at Basharat All who received injury over his chest.
6. Respondent Ghulam Hussain fired his gun at Basharat Ali who received it over left arm. Co- accused Sabir Hussain fired his pistol which hit deceased Bashrat Ali. Co-accused Saghir Ahmed fired his gun which hit deceased Iftikhar Ahmed. Respondent Khadim Hussian fired another shot from his rifle which hit deceased Iftikhar Ahmed. Co-accused Imran fired his gun which hit deceased Iftikhar Ahmed over his left 'arm. Respondent Muhammad Yousaf fired his gun which hit deceased Iftikhar Ahmed. Co-accused Ghulam Shabbir fired his pistol which hit P.W. Khuda Dad.
7. Respondent Ghulam Hussain fired another gunshot which hit Khuda Dad. Saghir Ahmed fired another gunshot which hit Khuda Dad. Ghulam Shabbir fired his pistol which hit Khuda Dad. Co- accused Imran fired his gun which hit P.W. Khaild Mehmood over his right leg. Respondent Muhammad Yousaf fired another gunshot which hit Nayyer Islam over his legs. Ghulam Hussain fired another gunshot which hit P.W. Liaqat Ali over his left hand. Respondent Tanveer Ahmed was alleged to be supplying bullets and cartridges to the assailants. Basharat Ali and Iftikhar Ahmed succumbed to their injuries at the spot. Motive for the offence was suspicion of assailants that complainant's nephew Zahid Masood had illicit relation with Mst. Naveeda daughter of respondent Ghulam Hussain. Co-accused Muhammad Sadiq is said to have incited the assailants to fire at the complainant party. Such F.I.R. Was lodged by Abdur Rehman with S.H.O. Nazir Ahmed, ' After challaning of the case, respondents 1 to 4 moved the Additional Sessions Judge, Rawalpindi for bail but their applications were dismissed. They filed application for bail in the High Court but withdrew the same on 27-3-1994 and again moved the Additional Sessions Judge, who, on 17-4- 1994, refused bail. Respondent 1 to 4 again moved the High Court which granted them bail on 12-9- 1994. Hence this petition for cancellation.
8. ' Mr. Muhammad Aslam Uns, learned counsel for the petitioner argued that in presence of strong ocular and medical evidence, no case was made out for grant of bail to respondents 1 to 4. That the respondents 1 to 4 were mentioned in the F.I.R. And they were assigned specific role. The learned counsel did not agree with the learned High Court that there was conflict between the ocular evidence and the medical evidence.
9. ' Sardar Muhammad Ishaque, learned counsel for respondents 1 to 4 opposed the petition and supported the impugned order. He, however, conceded that as per medical evidence Iftikhar Ahmed deceased, who was fired at by Muhammad Yousaf, did receive fire-arm injury at his back. It was, however, argued by the learned counsel for the respondents that none of the deceased or injured had, received any bullet injury and hence respondent Khadim Hussain has unnecessarily been implicated because he was said to be carrying rifle. It was also argued that respondent Tanveer Hussain had not caused any injury to anybody as per F.I.R.
10. ' Raja Abdul Ghafoor, learned counsel for the State argued that State had not challenged the impugned order, which was supported. He agreed with learned counsel for respondents 1 to 4 that the latter had been found by police to, be not guilty of the alleged offences.
11. ' Sardar Muhammad Ishaq, learned counsel for respondents 1 to 4 cited certain cases which require brief discussion. In the case of Rehmat Ullah alias Rehman v. The State (1970 SCM R 299) the Investigating Officer found the accused innocent and it was held that such finding although does not constitute legal evidence, yet puts the Court on an inquiry as to veracity of the prosecution case. In said case liability of the person found innocent by police, in regard to commonness of his intention with the co-accused' for committing murder, required determination and the accused in question was granted bail. In the case of Mukhtar v. Mohsin Ali Shah (1987 SCM R 1721) this Court declined to interfere with an order of Lahore High Court refusing cancellation of bail in respect of an accused mentioned in Column No,2 of the challan and not summoned by the trial Court as an accused. In case of Muhammad Sadik v. The State (1980 SCM R 203) this Court found the case not fit for grant of special leave to appeal as trial of the accused in that case was to commence shortly for which a date of hearing was fixed. In the case of Muhammad Ismail v. Muhammad Rafique (PLD 1989 Supreme Court 585) it was held that practice of the superior Courts is that when a murder case is fixed for hearing, ordinarily the bail applications are not decided on merits and the matter is often left to the discretion of the trial Court.
12. In the instant case, the learned counsel for the petitioner has not been able to persuade us to grant leave to appeal in respect of respondent Tanveer Hussain and Khadim Hussain, as the former did not cause any injury to anybody while the latter was armed with a rifle and none of the injured or the deceased received an injury with a rifle-shot. Consequently this petition with regard to respondents Tanveer Hussain and Khadim Hussain stands dismissed.
13. ' Respondents Ghulam Hussain and Muhammad Yousaf were allegedly armed with guns which they allegedly fired during the incident. As per F.I.R. Ghulam Hussain fired at Basharat Ali, at Khuda Dad and at Liaqat Ali, while Muhammad Yousaf fired at Iftikhar Ahmed and at Nayyaer Islam. It has wrongly been mentioned in the impugned order that Iftikhar Ahmed did not sustain any fire-arm injury on his back. Similar situation did not exist in the cases cited at the bar. The petitioner has made out a case for cancellation of bail in respect of respondents Ghulam Hussain and Muhammad Yousaf. Consequently the petition in respect of said respondents is converted into appeal and is accepted and bail of respondents Ghulam Hussasin and Muhammad Yousaf is cancelled. They are required to be arrested and remanded to jail and to be produced before the trial Court.