FAZAL ILAHI KHAN, J.---In this petition leave to appeal is prayed for against the judgment/order of the learned Lahore High Court, dated 27-2-1996 whereby pre-arrest bail granted to the accused/petitioners by the learned Sessions Judge was set aside and the application for pre- arrest bail was dismissed.
2. During demarcation proceedings, carried out by Girdawar Circle Daud Khel and the Patwari of the Circle, Muhammad Nawaz brother of the lessee and the petitioners, the rival parties, grappled.
Apprehending breach of peace the demarcation proceedings were given up and a written report was sent to the Assistant Commissioner who sent the same to Ilaqa Police on 5th October, 1995.
Accordingly a case under sections 147, 148, 447, 186 and 440, P.P.C., was registered against the petitioners.
3. Petitioners' application for pre-arrest bail moved in the Court of Sessions Judge, Mianwali was allowed and subsequently confirmed on 7-12-1995. The order of learned Sessions Judge was set aside on the application of the respondent and the application for pre-arrest bail was dismissed by the learned High Court by order dated 27-2-1996 against which leave to appeal is sought for.
4. It was contended by the learned counsel for the petitioners that sections of law under which the petitioners are charged are bailable excepting section 440, P.P.C., which is punishable for 5 years'
R.I. That on the allegation made in the report no offence under section 440, P.P.C., can be spelt out.
It was further contended that the order of the learned Sessions Judge granting bail to the accused/respondent in exercise of his discretionary power in an offence not falling in the prohibitory clause of section 497, Cr.P.C. Ought not to have been interfered with on facts of the present case. It was lastly contended that exchange of hot words took place between both the parties and because of that demarcation proceedings were stopped and the Girdawar Circle reported that demarcation could not be carried out without the help of the police. The learned counsel contended that the report was wrongly understood to be a report of criminal offence. The learned counsel appearing for the State conceded that it was not a case for interference by the learned High Court once, the discretion has been exercised by the learned Sessions Judge on facts and circumstances of the case.
5. Learned counsel appearing for the complainant vehemently opposed the application. It was stated that in absence of any evidence of mala fide attributed to the complainant the learned Sessions Judge was not justified under the law to have allowed pre-arrest bail to the accused/petitioners in an offence which is not bailable.
6. After hearing the learned counsel for the parties, perusal of the record and going through section 440, P.P.C. We are inclined to agree with learned counsel for the petitioners that at present the allegation made in the report, prima facie, would not make out an offence under section 440 of the P.P.C. Moreso, the discretion exercised by the learned Sessions Judge allowing pre-arrest bail to the accused/petitioners on facts and circumstances of the case could not have been interfered with by the learned High Court, specially when the offence does I not fall within the prohibitory clause of section 497, Cr.P.C.
For the, reasons we convert this petition into appeal and allow the same.
In consequence the petitioners are allowed bail in the sum of Rs.25,000 with one surety each in the , like amount to the satisfaction of Ilaqa/Duty Magistrate.