ABDUL SALAM vs THE STATE

ORDER

' KARAM ELAHEE CHAUHAN, 3.--The petitioner Abdul Salam was involved in a case reported as per F I R No, 44 dated 20th February, 1976, under sections 307/353/34, P. P. C. And section 13 of the A. O.

Lodged by Muhammad Darvesh Khan, S. H.

0., in police station Nahaqi (Daudzai) for ineffective firing on a police party which had conducted a raid to apprehend one absconder Sher by name.

2. The petitioner applied for bail but his application was rejected by a learned Magistrate Ist Class, Peshawar, on 13th December, 1978.

3. The petitioner approached the learned Sessions Judge, Peshawar, but without any success as he also rejected his bail application on 3rd January, 1979.

4. The petitioner then filed criminal miscellaneous No, 94/1979 which also met the same fate and was dismissed by a learned single Judge of the Peshawar High Court on 3rd February, 1979.

5. The petitioner has come up in a petition for special leave to appeal against the same to this Court.

6. The petition came up before us on 15th May, 1979 when we issued notice to the learned Advocate-General and also summoned the investigation record. The case has been heard today in the presence of the learned Advocate-General. Learned counsel for the petitioner submitted that Sher (accused) above mentioned has been released on bail both in the case in which he was earlier absconding and in the present case in which the petitioner has also been involved. He argues that there is no distinction in the case of the petitioner and he too ought to have been released on bail, especially when the allegation against him is only of an ineffective firing which caused no injury to any person. He further submitted that the offence under section 353, P. P. C. Is bailable. The learned Advocate-General after hearing the arguments of the learned counsel for the petitioner submitted that in the circumstances he would not oppose the grant of bail to the petitioner though he would insist that in view of the special features of the case and the credibility of the petitioner the amount of bail should be quite effective. We also are of the view that as there was no distinction between the case of the petitioner and Sher co-accused-(whose case was rather worst) the privilege of bail should not have been refused to the petitioner. It appears that in the matter of bail the Courts below did not act on correct principles of law applicable in cases of this type and failed to maintain equality of treatment between persons placed in similar situation and similar circumstances. The result is that converting this petition into an appeal, we accept the same and release the petitioner on bail in the sum of Rs, 50,000 with two sureties of the like amount to the satisfaction of the Ilaqa Magistrate. Learned counsel for the petitioner is agreeable to the fixation of the aforementioned amount of security.