1. ' ABDUR RAHMAN FARUQ PIRZADA, J.--- Applicant Sohrab seeks bail in the case vide Crime No,108 of 2007, Police Station Thu11, District Jacobabad, for offences under sections 302, 324, 114, 147, 149, P. P.
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3. ' The F.I.R. Was lodged by complainant Muhammad Sharif at Police Station Thull on 24-6-2007, at 3- 30 a.m. The date of incident was shown to be on 23-6-2007, at 7-00 p.m. The applicant has been alleged to have been present at the place of incident, being empty-handed, and the role of instigation has been assigned to him. The five co-accused persons were said to have accompanied the applicant, four out of whom were armed with guns, whereas one co-accused was armed with Lathi. The overt act of firing and inflicting Lathi blows has been specifically assigned to five co-accused persons as mentioned in the F.I.R. As a result of attack by co-accused persons, two persons viz. Gahi and Mst. Zarina were murdered, whereas P.Ws. Mst. Jamali, Mst.
4. Zahida and Mst. Janat were injured.
5. ' Learned counsel for applicant has contended that no overt act of attacking or causing any injury whatsoever to the deceased persons or injured persons has been attributed to applicant. He was shown to be empty-handed, and only the role of instigation has been attributed to him. He has further submitted that applicant is a man of very advanced age, being 73/74 years old, and is very weak and infirm. He is in custody since last about nine months. Learned counsel has relied upon the authorities of law as report in 1996 SCM R 1125, 1999 SCM R 1320, 1999 SCM R 1360, 1998 SCM R 454 and 2001 PCr.LJ 701, in support of his contentions.
6. The learned Assistant Advocate-General has raised no objection to grant of bail to the applicant, in view of the above submissions made by learned counsel for applicant.
7. ' Since the learned counsel for applicant had inter alia argued that applicant was a man of very advanced age, and was in a very weak state of health, the applicant was ordered to be produced before the Court, in order to consider his physical appearance. The applicant has been produced today, and undoubtedly he seems to be very old and physically very weak. The NIC of applicant, which has been produced by learned counsel for applicant, also shows the applicant to be aged about 73/74 years.
8. ' So far as the role of applicant as per F.I.R., is concerned, it is admitted position that he was shown to be empty-handed at the time of incident, and only role assigned to him is that of making instigation. Although two persons were murdered and three prosecution witnesses were injured in the alleged incident, still it will be a matter requiring consideration as to whether a person of very advanced age and in weak state of health and also being empty-handed, actually harboured any common intention for the commission of alleged offence. This matter will certainly require evidence at the stage of trial, as to whether the applicant was vicariously liable for the alleged offence. At present stage this question of vicarious liability cannot be determined.
9. ' Respectfully, the reliance may be placed on the case of Mumtaz Hussain and 5 others v. The State as reported in 1996 SCM R 1125 (Supreme Court of Pakistan), in which it was laid down that accused despite being allegedly armed with deadly weapons like rifle, gun and hatchet had only caused simple blunt injuries to some of the prosecution witnesses using the wrong side of their weapons, and that the question whether accused in such circumstances shared common intention with co- accused who had caused death of the deceased needed further enquiry, and in such circumstances bail was granted to accused.
10. ' The reliance may also be placed on the case of Attaullah and 3 others v. The State as reported in 1999 SCM R 1320 (Supreme Court of Pakistan), according to which the accused were not alleged to have caused any injury to the deceased, but they had caused simple injuries to the prosecution witnesses, and in the circumstances the order of High Court cancelling bail of accused was set aside in the circumstances and the order of Sessions Court allowing bail to them was restored.
11. ' In the case of Faraz Akram v. The State reported in 1999 SCM R 1360 (Supreme Court of Pakistan), it was held as under:-- "In support of this petition, it was contended that no overt act had been ascribed to the petitioner save for ineffective firing, which also stands disproved because no empty was recovered. It was further argued that only Hasnain was attributed fatal blow and the petitioner had nothing to do.
12. The circumstances thus, revealed that it was only Hasnain, who had fired the fatal shot. The question of vicarious liability of the petitioner will be determined at the trial. In this view of the matter, it is a case of further inquiry covered by section 497(2), Cr.P.C."
13. ' In the case of Muhammad v. The State as reported in 1998 SCM R 454 (Supreme Court of Pakistan), accused had allegedly made an ineffective firing and no injury was attributed to him during the occurrence, as such it was held that the case against the accused needed further enquiry, and he was admitted to bail.
14. ' In the case of Shafi Muhammad v. The State as reported in 1999 PCr.LJ 890 (Karachi), a Division Bench of this Court granted bail to an accused against whom there was allegation of having fired in air, and he had not caused any harm or damage to anybody. It was held that responsibility of accused in commission of crime could not be equated with that of co-accused who had fired at the deceased as a result of which he had died, and that the application of section 34, P.P.C. To the case of accused could be determined at the trial after recording of evidence.
15. ' A Division bench of this Court in the case of Rajib and 2 others v. The State as reported in 2001 PCr.LJ 705 (Karachi), also held that when accused were armed at the time of incident and had made an ineffective firing, their case required further inquiry into their guilt in the circumstances, and accordingly they were admitted to bail.
16. In view of the foregoing facts and circumstances, while keeping in view the merits of the case as well as the advanced age of applicant and his weak state of health, and also while placing implicit reliance on the above cited authorities of law, I find the applicant to be entitled to concession of bail. Accordingly, this application is allowed and the applicant may be released on his furnishing solvent surety in the sum of Rs,1,00,000 (Rupees one lac) and P.R. Bond in the like amount to the satisfaction of trial Court.