FAZAL ILAHI KHAN, J.---Leave to appeal is prayed for against the judgment dated 23-4-1995 of the learned Peshawar High Court, Peshawar passed in Criminal Miscellaneous No. 830 of 1994.
2. It may briefly be stated that on 2-8-1993 at about 11-00 p.m. Fazal Rehmat complainant lodged a report before Sherzada, A. S.I. , while he was on patrol duty, that Naqshay son of Chanay accused- respondent had a boundary dispute with the deceased which was to be settled through the elders.
That he alongwith Azeemullah, Azizullah and Shahan-ud-Din, the village elders, had accompanied his brother Khush Amadin, Noor Rehmat and their father Muhammad Zamina. On reaching the spot they found the accused present at the spot. On seeing them the accused attacked his father and brothers with their respective daggers and both expired at the spot. While Noor Rehmat received injuries on his thigh but escaped further injuries because of the intervention of the elders.
3. The accused/respondents moved an application for the release on bail which was rejected by the learned Magistrate vide order dated 30-6-1994 and similar was the fate of the application moved before the learned Additional Sessions Judge, Swat. Their further application (Cr.Misc.
No.830/94) was entertained by the learned High Court, where the Honourable Judge was pleased to order their release on bail vide order against which leave to appeal is prayed for.
4. It may be pointed out that another F.I.R. Was registered at Serial No.51 dated 3-8-1993 at the instance of the accused/respondent No.1 and the accused charged in the said F.I.R. Have been released on bail and the application for cancellation of their bail was also dismissed.
5. We have heard the learned counsel for the petitioner and perused the record. Admittedly the accused/respondents were in the lock-up since 3-8-1993 and no challan has been put against them for trial because of uncertainty of the forum due to this Court judgment given on PATA Regulation. The learned High Court, therefore, considered it a fit case for exercise or its discretion in favour of the accused/respondents without going into the merits of the case. The accused/respondents have remained in the lock-up as under trial from 3-8-1993 till 23-4-1995, when they were released on bail by the learned High Court. Though till 23-4-1995 they had not completed the statutory period of to years which could entitle them to grant of bail but leave to appeal is declined against the order of the learned High Court on the ground that in spite of the respondents' release on 23-4-1995 their trial so far has not concluded. Leave to appeal is refused and petition is dismissed.