1. ' IMAM BUX BALOCH, J.---Heard arguments of the learned counsel for the applicant as well as learned APG appearing on behalf of the State.
2. ' Precisely the facts of the case are that Qadir Bux is father of complainant Abdul Khaliq. On 16-8- 2009 his relative Naimuatullah came in their house and narrated the facts to him and his father Qadir Bux that he after selling milk was returning back on his motorcycle when reached Syed Wah Banana Garden accused Kareem Bux and others have robbed him. He further stated that he and his father Qadir Bux asked Naimatullah to lodge report at Police Station 'A' Section, Khairpur. On the next morning his father accompanied Naimatullah and went to 'A' Section Police Station, Khairpur and lodged the report.
3. ' On 18-8-2009 he along with his father Qadir Bux and relatives Mir Muhammad and Mumtaz Ali and other labourers of village were busy in working in Banana garden when at about 7-30 hours accused Ghulam Haider, Khalifo having Kalashinkovs, Karim Bux having repeater, Abdul Hakeem, Allah Wadhayo having rifles, Muhib, Hayat, Muneer and 4/5 other unkown persons with open faces having Kalashinkovs if seen again would be identified came there. Out of them accused Abdul Hakeem and Ali Wadhayo asked the complainant party that they have registered the case against Kareern Bux and they further asked the complainant party that whether they have any courage to do so saying so both of them instigated all the accused to kill them. On such instigation accused Ghulam Hyder and Khalifo fired from their Kalashinkovs and accused Karim Bux fired from his repeater at complainant's father Qadir Bux who fell down on the ground and died. Thereafter all the accused left the place of wardat by making aerial firing in order to create harassment. Such information was given on 15 Police Help Line, Sukkur and they arranged for vehicle and took the dead body of Qadir Bux where in the way the Police met them and then brought the dead body to Civil Hospital Rohri, where postmortem was conducted and after conducting the postmortem, and completing his funeral ceremony on the next day on 19-8-2009 the F.I.R. Was lodged as stated above.
4. ' After usual investigation the case was challaned and is pending in the Court of learned IInd Additional Sessions Judge, Sukkur. After having failed to obtain post arrest bail from the trial Court; hence this application is moved.
5. ' Learned counsel for the applicant contended that though the name of the applicant is mentioned in the F.I.R., but no specific role is attributed to him only his instigation is mentioned in the F.I.R. He further argued that at this stage the case of the applicant falls under the purview of further enquiry as contemplated under section 497(2), Cr.P.C. He relied upon the case of Tariq Zia v. The State (2003 SCM R 958), Abdul Rehman v. Javed and 2 others (2002 SCM R 1415), Nek Muhammad v. The State (1991 SCM R 1630) and prayed that in the circumstances of the case, the applicant is entitled for grant of bail.
6. ' On the other hand, learned APG appearing for the State contended that the name of the applicant did appear in the F.I.R. With specific role that he instigated the other accused to make firing at the deceased. He Further argued that the motive behind the commission of crime is that the deceased Qadir Bux got the F.I.R. Registered of robbery from Naimatullah against accused and in such circumstances, the present applicant along with his other companions armed with lethal weapons have committed the murder of deceased. He further argued that at this stage the applicant not entitled for grant of bail.
7. ' I have considered the submissions advanced at the Bar and perused the relevant record.
8. ' In the case of Tariq Zia (supra), the honourable Supreme Court has held as under:-- "The accusations against the petitioner in the F.I.R are that he raised only a Lalkara to the effect that the enemy had come and on that Lalkara other accused attacked the complainant side. The contents of the F.I.R show that the accused was empty-handed and has not played any active/overt act in the commission of the offence. It would be for the trial Court to examine the evidence and determine the effect of the Lalkara raised by the petitioner. At this stage, we feel that prima facie, a case for grant of bail has been made out. Consequently, this petition is converted into appeal and while accepting the appeal, the petitioner is allowed bail in the sum of Rs,1,00,000 (Rupees One Lac only) with two sureties each in the like amount to the satisfaction of the Area/Duty Magistrate or the trial Court."
9. ' In the case of Abdul Rahman (supra) honourable Supreme Court has observed as under:-- "The role attributed to the respondents is that of raising of Lalkara and firing in the air without aiming at the complainant or anyone else. Thus their role has been perfectly held by the Lahore High Court to be that of further inquiry. Had the respondents any intention to kill the complainant or to dispossess him from the land, there was nobody to prevent them from doing so. Thus, the impugned order does not require any interference ' In the case of Nek Muhammad (Supra) the honourable Supreme Court has held as under:-- "When the petition came up for hearing on 17-3-1991, notice was issued to the learned Advocate- General to appear as to why the petition be not converted into appeal and disposed of accordingly. Thus learned Advocate-General has appeared. He submitted that it is true that three successive Investigating Officers have found the petitioner innocent.
10. ' We have heard the learned counsel for the petitioner and the learned Advocate-General. The petitioner is not alleged to have caused any injury to the deceased. In all the circumstances of the case it appears that the precise liability of the petitioner is a matter of further inquiry in terms of section 497, Cr.P.C. Therefore, he, is allowed bail in the sum of Rs,25,000 with two sureties in the like amount to the satisfaction of Assistant Commissioner, Okara. "
11. ' The facts and circumstances of the case of Nek Muhammad relied upon by the learned counsel are different from the facts of present case as held by the honourable Supreme Court that three successive Investigating Officer have found the petitioner innocent which is not in the case in hand.
12. ' The Facts and circumstances of the case of Abdul Rehman relied upon by the learned counsel are also distinguishable from the facts and circumstances of the present case as in the said case it was held by the honourable Supreme Court that firing in the air without aiming at the complainant or any one else.
13. ' The facts and circumstances of the case of Tariq Zia relied upon by the learned counsel for the applicant are different from the instant case as in the said case, the applicant was empty-handed and in the present case, applicant/accused Abdul Hakeem was armed with rifle. The applicant along with his companions armed with lathel weapons after pre-planning and having strong motive committed the murder of innocent person.
14. ' In the case of Muhammad Arshad v. The State the honourble Supreme Court has held as under:- "We have heard the learned counsel for the petitioner, complainant and the learned Additional Advocate-General. Punjab. The petitioner has been specifically nominated in the F.I.R. And specific role of raising Larkana 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 witness. 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. However, our assessment is purely tentative in nature and would not affect the mind of the trial Court in any manner. In terms of order, dated 16-7-2003, petitioner was admitted to ad interim post-arrest bail and in view of what has been discussed above, we recall the said order and direct that the petitioner shall be taken into custody, forthwith."
15. In the instant case, the applicant along with his companions beyond a motive with a pre-planned manner attempted upon an unarmed person and caused Qatl-e-amd of innocent person, and he along with other co-accused is vicariously liable for the commission of offence. Following the dictum laid down in the case of Muhammad Arshad (supra) I am of the considered view that the applicants case does not fall within the purview of section 497(2), Cr.P.0 calling for further enquiry.
16. ' Consequently this application is dismissed being meritless.