MUHAMMAD AFZAL CHEEMA, J.--A case was registered at Badaber Police Station, District Peshawar, on the report of Gul Ahmad appellant against 8 accused including respondent No. 1 and his sons respondents- Nos. 2 and 3. They were charged with offences under sections 148, 302/307/436/149, P. P. C. The occurrence took place at 10-00 a.m. And was reported to the police by the appellant at 2-30 p.m. In Lady Reading Hospital, Peshawar. The allegations pertained to double murder of Fazal Dad and Azim Khan with fire-arms, attempted murder of four injured P. Ws. Gul Ahmad, Gulbaz, Alaf Shah and Sahibzada coupled with arson. Respondents Nos. 1 to 3 were allowed bail by the learned Chief Justice of the Peshawar High Court, vide his order, dated the 15th of May, 1973 from which leave to appeal was granted by this Court---s order, dated 20-6-1973, to consider as to whether the respondents had been released on bail on sound judicial principles. Non- bailable warrants of arrest were also directed to be issued against the respondents who were arrested in execution thereof and are in detention.
2. A perusal of the impugned order shows that the learned Chief Justice was mainly influenced by the finding of the C. I. A. Staff recorded on the basis of its investigation and in particular the statements of three so-called indepen--dent witnesses according to whom the respondents were falsely implicated. Taking the view that this Court's dictum in Rehamatullah alias Rehman v. The State (1970 SCMR 299) was fully attracted to the circumstances of the case wherein the opinion of the Investigating Officer though not constituting legal evidence was yet considered to be relevant in the determination of question of bail. The learned Chief Justice enlarged the respondents on furnishing security in the sum of Rs. 10,000 each.
3. In support of the appeal, V learned counsel contended that it was a case of day light occurrence of which a detailed report was lodged with the Police with reasonable promptitude in which all the accused including the respondents were specifically named there being hardly any doubt or dispute about their identity. It was further submitted that the allegations stood fully supported by the police statements of four injured eye-witnesses mentioned earlier followed by their depositions before the Inquiry Magistrate fully implicating the respondents and their co-accused of whom four are still at large.
4. In defence of the impugned order, it was contended before us on behalf of the counsel for the respondents that although the place of occurrence was connected with the police station by the Main Kohat Road, yet the report was not lodged till about 42 hours after the occurrence, that all the P. Ws. Were interested and were belied by the finding of the C. I. A. Staff which being quite relevant for the purposes of bail was rightly taken into considera--petition by the learned Chief Justice.
Lastly, it was submitted on the basis of Nur Elahi v. The State that in any case, no fault could be found with the bail allowed to Masam Khan respondent No. 1 an old man of 70 years.
5. Having considered the contentions raised by the learned counsel for the parties in the light of the facts and circumstances of the case, we are of the considered view that the appeal must succeed inasmuch as the learned Chief Justice had obviously misdirected himself in invoking this Court's dictum in Rehmatulluh alias Rehman v. The State (PLD 1966 SC 708). Admittedly, it was a case of broad day-light occurrence resulting in a double murder, besides fire-arm injuries to as many as four persons who not only implicated the accused including the three respondents in their police statements but also deposed against them before the Inquiry Magistrate. The mere fact that the C.
I. A. Staff had in a subsequent investigation held the respondents as innocent, would hardly con-- stitute a valid ground for their enlargement in the circumstances of the case. Great care and caution is needed in the invocation of the authorities of this Court which by and large proceed on the peculiar facts of each case. Having regard to the vast variety and wide variance in the circumstances of cases and the indiscriminate to application of a ruling given in one case to the facts of another, their Lordships of the Privy Council felt the necessity of observing in Louis Edouard Lanier v. The King (L R 1914 A C 221) that "no rule can be laid down which would not necessarily be subject to future qualification, and an attempt to formulate any such rule might therefore, prove misleading. This note o caution was reiterated in Dennis Romain v. Attorney General for Jersey (AIR 1936 PC160). Both these authorities were pointedly referred to in this Court's elaborate judgment in Noora's case (PLD 1973 SC 469).
6. Keeping this principle in view, we find that there was hardly any analogy between the two cases the facts and circumstances of the instant case being glaringly dissimilar to those of Rehmatullah alias Rehman v. The State and another relied upon by the learned Chief Justice in support of the order of enlargement. One clear point of distinction is that in the precedent case Rehmatullah accused was only charged with vicarious liability for the murder of Mst. Fatima. Again he was found innocent in three successive investigations. It was for these reasons that he was allowed bail by the Sessions Judge, which was cancelled by the High Court on the ground that the opinion of the Investigating Officer did not constitute legal evidence and was later restored by this Court. It would thus be seen that the facts of the two cases were entirely different. Even otherwise, we are not impressed by the rather unusual plea of wholesale substitution taken by the respondents before the High Court on the basis of the C. I. A. Report referred to in the impugned order.
7. As regards the case of Masam Khan sought to be distinguished on ground of old age, we find that unlike the position in Nur Elahi v. The State and two others pressed into service by the learned counsel, there has been no medical evidence in support of the old age of Masam Khan which again would not necessarily indicate infirmity, the only relevant legal consideration in his case. This authority does not therefore, help him.
8. On the above view of the matter, we allow this appeal and set aside the impugned order of enlargement:
9. We are informed that the respondents have already been taken into custody in compliance with this Court's order, dated 20-6-1973. In order to dispel the apprehension expressed by the learned counsel for the respondents that the order might prejudice the mind of the Inquiry Magistrate, we would like to emphasize that the order is confined only to the determination of the limited question of bail before us and shall in no way be so construed as to influence the committal proceedings to the prejudice of the respondents.