1. ' MUHAMMAD ATHAR SAEED, J.--- This bail application under section 497, Cr.P.C. Has been filed against the order, dated 18-7-2006 passed by 1st Additional Sessions Judge, Mirpurkhas in respect of Crime No,19 of 2006 registered on 7-3-2006 at Police Station Digri District Mirpurkhas, whereby he had rejected the bail application of the applicant.
2. ' The brief facts of the case as narrated by the complainant in the F.I.R. Are that while complainant along with his maternal-cousin Javed Iqbal, Muhammad Rafiq and Mehboob Alam was proceeding towards bus stop, they encountered the applicant armed with sten gun and 4 other persons namely Tayeb, Shahid Hussain, Amir and Qamar all by caste Arain armed with TT pistols.
3. The two companions of the applicant namely Tayeb Arain and Shahid Hussain fired at Javed Iqbal and murdered him and the other two companions Amir Arain and Qamar Arain fired at the complainant and his other two companions with intention to kill but they saved their life by falling on the ground. According to the complainant, applicant despite holding sten gun did not fire at the deceased but was instigating his other companions to kill them. He further stated that an enmity existed between Tayeb Arain and Javed Iqbal as according to Tayeb Arain, Javed Iqbal had murdered his brother Dr. Shahid and he would take revenge of the murder. The complainant along with co-accused Qamar Arain and Amin Arain was arrested on 28-3-2006 and an unloaded sten gun along with magazine were recovered from him on 9-4-2006 whereas Tayeb and Shahid Hussain were declared as absconders. The applicant moved bail application before 1st Additional Sessions Judge, Mirpurkhas who vide his order, dated 18-7-2006 rejected the same for the following reasons:--- "Allegations against the accused persons is that they had taken avenge of the murder of Dr. Shahid who was the brother of applicant/accused, therefore, the alleged presence of applicant/accused at the time of occurrence along with fire-arm cannot be overruled. Further it is alleged that he was armed with sten gun, and instigated the co-accused for commission of murder of deceased and accordingly murder of Jawaid Iqbal has committed. It is also alleged that at the instigation of applicant/ accused, the co-accused had not only committed the murder of deceased Jawaid Iqbal but they also made fire shots at the complainant, and P.Ws . Muhammad Rafique and Mehboob Alam. During investigation, the P.Ws. Muhammad Rafique and Mehboob Alam in their 161, Cr.P.C. As well as 164, Cr.P.C. Statements have implicated the applicant/accused, recovery of sten gun from the applicant/accused is also another piece of evidence which connects him with the commission of offence. Therefore, with regard his vicarious liability is concerned, admittedly he is nominated accused, and he was the member of unlawful assembly, and specific role has been attributed to him, hence he is vicariously liable for the act of the principal accused, and bail cannot be granted to him. I am fortified with the decision reported as 1996 PCr.LJ 1203. I am also strengthened in my such view with the decision of our Honourable Supreme Court reported as 2006 SCM R 966 wherein while declining the bail in the similar circumstances as those of the present case in hand, it was held as under:--- ' We have heard the learned counsel for the petitioner, complainant and the learned Addl. A.G.
4. Punjab. The petitioner has been specifically nominated in the F.I.R. And specific role of raising Lalkara to facilitate Muhammad Anwar to commit the murder of the deceased has been attributed to him. The background of the case is that prior to this occurrence, a criminal case was got registered against the petitioner at the instance of the deceased Muhammad Hayat, wherein, he and his daughter had to appear as witnesses. In this view of the matter, at this stage, it cannot be assumed that Lalkara raised by the petitioner was proverbial. Hence, prima facie, petitioner is not entitled to bail.
5. ' In this case, main accused Tayyab and Shahid Hussain are still absconders, therefore, keeping in view the facts and circumstances of this case there appears no reasonable ground that the applicant/accused is not guilty of committing the offence, and possibility of abscondance of applicant/accused after his grant of bail, I am not inclined to grant bail to the applicant/accused."
6. ' Heard Mr. M.M. Aqil Awan, learned counsel for the applicant and Mr. Amir Ali Thari, learned State Counsel.
7. The main contention of learned counsel for the applicant is that the applicant despite being allegedly armed with sten gun has not been accused in the F.I.R. Of taking part in the firing on the deceased or the complainant and his companion and the only role assigned to him is that of instigation. He submitted that the prosecution has not been able to set up a case that the accused persons had knowledge that the deceased, complainant and their companions will be available at the place of incident and unless this is proved they cannot be charged with unlawful assembly with common intention of murdering the deceased and his companions. Even otherwise, according to learned counsel such common intention also needs further inquiry. Learned counsel candidly conceded that there was enmity between the accused and the complainant as the deceased and complainant were implicated in the murder of the brother of the accused. He, however, cleverly used this concession to point out that due to this enmity the complainant party also had a motive to falsely implicate the applicant/accused. He said that the case set up by the prosecution is not free from doubt and the chances of conviction are not very bright as the trial has not yet commenced and is expected to consume a considerable time and it will not be justified in keeping the applicant behind the bars. In support of his contention that the applicant cannot be denied bail just on the accusation of instigating his co-accused to fire on the complainant, deceased and their companions. He relied on the following case-laws:---
(1) Abdul Aziz v. Bashir Ahmed PLD 1966 SC 658, (2) Wazir Muhammad v. The State 1978 SCM R 448,
(3) Sher Khan v. The State 1980 SCM R 193, (4) ,Sultan Ahmed and others v. The State 1981 SCM R 771,
(5) Muhammad Haroon v State 1994 SCM R 2161 and (6) Mumtaz Hussain v. State 1996 SCM R 1125 ' Mr. Amir Ali Thari, learned State Counsel opposed the bail application and submitted that the applicant was the brother of Dr. Shahid who was allegedly murdered by deceased Javed Iqbal, therefore, the applicant and his brother had a motive to murder deceased Javed Iqbal and his companions. He further argued that conspiracy to murder and instigation to murder are as grave crimes as the murder itself and no leniency can be shown to the accused at whose instigation the murder was committed and firing with intention to murder took place. He submitted that the learned Additional Sessions Judge had rejected the bail application of the applicant by a speaking order based on cogent reasons. He therefore, prayed that the bail application may be rejected.
8. ' I have examined the bail application in the light of the arguments of learned counsel and the case-laws relied upon them and have perused the contents of the impugned order and the record of the case. I find, that one of the reasons given by the learned Additional Sessions Judge in support of his order is that there is possibility that the applicant may jump bail and become absconder. However, the learned Additional Sessions Judge has failed to give any reason for his view and therefore, it can only be considered a presumption or assumption. It has been held by the apex Court that bail cannot be rejected merely on the presumption that the applicant will jump bail and become absconder. I have also gone through the judgments relied upon by the learned counsel for the applicant. From a perusal of these judgments I find that the Honourable Supreme Court has normally granted bail in cases where only allegation of instigation or Lalkara was made.
9. It will be relevant to reproduce the following extracts from the above judgments:--- Wazir Muhammad v. The State 1978 SCM R448.--- After hearing Mr. Muhammad Masood Kausar, learned Advocate for the appellant and Mr. Amir Zada Khan, learned Assistant Advocate-General, N.-W.F.P. We have come to the conclusion that the appellant deserves to be released on bail. He has only been charged for Lalkara and no overt act has been ascribed to him.
10. Sher Khan v. The State 1980 SCM R 193.--- The contention raised is that respondents were members of the party, two of whom killed the deceased by firing and therefore, they should be deemed to be the members of the unlawful assembly for the furtherance of whose common intention or object, the accused persons Dost Muhammad and Kohri killed deceased Fida Muhammad. In this connection Mr. Manawar has referred me to the statement of Muhammad Khan brother of deceased Fida Muhammad recorded by the police under section 161, Cr.P.C. But according to this statement as well it is not clear if all these persons formed an unlawful assembly or if they came to the scene of occurrence with intention of killing Fida Muhammad or even that they had the knowledge that they would encounter the deceased there.
11. Muhammad Haroon v. State 1994 SCM R 2161.--- The only allegation against Usman petitioner is that he raised Lalkaras along with co-accused Luqman and Muhammad Yaqoob while Abdul Rehman petitioner is alleged to have held Mst. Razia Bibi along with co-accused Muhammad Yaqoob. They are not alleged to have caused any injury to any of the deceased persons. We, therefore, convert their petitions into appeals and allowing the same direct that they shall be released on bail subject to their furnishing security in the sum of Rs,50,000 with two sureties each in the like amount to the satisfaction of A.C./Duty Magistrate, Chiniot.
12. Mumtaz Hussain v. State 1996 SCM R 1125.--- The present petitioners were refused bail by the High Court on the ground that they, prima facie, shared common intention as they were armed with deadly weapons at the time of incident in a place of worship. Out of them, Mumtaz, (petitioner No,1), Sher Afghan (petitioner No,2) and Muhammad Iqbal (petitioner No,3) were rightly refused bail in the case by the High Court as they allegedly caused injuries to the deceased Siddique Umer in the case. The cases of the remaining accused, namely, Ghulam Raza, Ghulam Shabbir and Zafar Iqbal, however, are distinguishable as in spite of being allegedly armed with deadly weapons like rifle, gun and hatchet, they only caused simple-blunt injuries to some of the P.Ws., using the wrong side of their 'weapons. In these circumstances, whether they share common intention with those who caused death of deceased Siddique Umar needs further enquiry.
13. I respectfully subscribe to the above judgments and I am of the view that bail cannot be denied to the applicant as his role in the murder of the deceased was just that of instigator and prima facie it appears that he was armed with unloaded stengun and there is no charge on him of firing with intention to kill. The case-law relied upon by the Additional Sessions Judge is distinguishable as in that case the only person having enmity against the deceased was the applicant who had raised Lalkara whereas in the present case no instigation was needed for the others who fired on the complainant, deceased and their companions as they all had enmity with the deceased and no instigation was needed to facilitate them to commit murder.
14. ' Foregoing are the reasons for which I had admitted the applicant to bail on his furnishing surety in the sum of Rs,5,00,000 (five lacs) along with P.R. Bond in the like amount to the satisfaction of learned trial Court on 28-8-2006.