1. ' MUHAMMAD TASNIM, J.---Through this bail application the present applicant has impugned the order dated 12-5-2010 passed by 3rd. Additional Sessions Judge, Mirpur Mathelo passed in Bail Application No,106 of 2010 whereby the bail application filed by the present applicant was rejected.
2. ' The case as set out in the F.I.R. By the prosecution is as under:-- "Complaint is that Raees Muhammad Hashim son of Rais Mitho Khan aged about 75 years is my father-in-law and Nazeer Ahmed son' of Sodho Khan aged about 40 years is my younger brother.
3. About 8/9 years back due to quarrel on tube-well water the murder of Muhammad Arif son of Muhghar Bhutto was took place in this regard a murder case was registered at Police Station, Ubauro against my brother Nazeer Ahmed and others. The faisla of said murder was also held and both parties were patched up with each other, but the cousin of Muhammad Arif namely Dur Muhammad Bhutto are kept hate in their mind and yesterday the murder of the son of Dur Muhammad namely Abdul Samad has been taken place, I along with my nephew Rano son of Muhammad Sharif, nephew Abid Hussain son of Nazeer Ahmed, brother Nazeer Ahmed and grand father Raees Muhammad Hashim son of Races Mitho Khan were sitting in the otaq of Dur Muhammad for the purpose of attending the funeral proceedings, other persons were also sitting there then at about 9-00 hours we heard fire shot noise from the southern side of the village then Dur Muhammad and Ghanwar both sons of Khanwand Bux were also sitting with us at "Tada" left that place and went towards their house. We stayed at "Tada" then at about 9-15 hours each Dur Muhammad son of Khawand Bux, (2) Abdul Ghani, (3) Abdul Sattar, both sons of Khuda Bux, (4)
4. Qadir Bux alias Qadan, (5) Muhammad Hanif, (6) Mir Khan, all three sons of Ghanwar Bhutto having Kalashnikovs, (7) Ghanwar son of Khawand Bux Bhutto empty handed came there. Accused Ghanwar Bhutto gave challenge to my brother Nazeer Ahmed and told him that you had committed murder of our cousin Muhammad Arif, hence today we took his revenge and don't spare and kill you and will destroy your generations and on saying so instigated the other accused for committion of murder on which accused Dur Muhammad, (2) Abdul Ghani and Abdul Sattar in order to spread terror in the vicinity and in order to destroy our generation made straight firing with intention to commit murder upon brother Nazeer Ahmed. The fires of all accused persons hit upon him who fell down on the earth and then I along with nephew Abdul Hussain, Rano immediately took shelter in bank of canal and seeing from where that accused Qadir Bux alias Qaddan Bhutto, Muhammad Hanif Bhutto and Mir Khan made straight fires with Kalashnikovs with intention to commit murder upon my grand father Rais Muhammad Hashim Bhutto to whom fires of all accused hit who also fell down on earth while raising cries. All accused while raising slogans and making aerial firing just for causing harassment went running towards northern side; then we went there and saw that my brother Nazeer Ahmed has sustained one firearm injury on his head from front side it was entered and exited from the back side, one fire hit him on right side of the chest and exited from the backside and one fire on left hand and exited from back side through and through and blood was oozing and he was died. We found that my father-in-law Rais Muhammad Hashim has sustained one fire on his left side of neck(sic) hand through and through and one fire hit on his right side of the chest through and through and blood was oozing and he was died.
5. Thereafter I with the help of above named both P. Ws took to Taluka Hospital Ubauro now after burring both the deceased appear and make complaint that above named accused persons due to above quarrel armed with automatic weapons with their common object in order to spread terror in the vicinity and destroying our generation on the instigation of accused Ghanwar Bhutto remaining above named accused committed brutal murders of my brother Nazeer Ahmed and grand-father Rais Muhammad Hashim and for causing harassment made aerial firing: I am complainant, pray for redressal."
6. ' Learned counsel for the applicant in support of his bail application has submitted that as many as seven accused persons have been shown in the F.I.R., Six accused persons shown to have been armed with Kalashnikovs. It is further the case of the prosecution that at the instigation of present applicant the co-accused Dur Muhammad, Abdul Ghani and Abdul Sattar fired upon one Nazir who died on the spot. It is further the case of the prosecution that at the instigation of present applicant other three co-accused Qadir Bakhsh, Muhammad Hanif and Mir Khan made straight fires upon Raees Muhammad Hashim who died on the spot. From the site empties of Kalashnikov were also recovered by the police. Learned counsel for the applicant stated that the present applicant was wrongly denied concession of bail by the trial Court for the following reasons:--
(i) Firstly he was not armed with any weapon, or any role except instigation has been assigned to the present applicant.
(iii) Secondly there was admitted previous enmity between the parties.
7. ' For these reasons and others the present applicant has been implicated in this case. Learned counsel says that present applicant has no concern whatsoever with the commission of the offence and he is no way connected with the crime but with mala fide intentions complainant party nominated the present applicant with the commission of offence and has assigned the role of instigation. Learned counsel for the applicant further says that the 'applicant is of advanced age of 70 years and he will not indulge himself in such criminal activities at this stage. He further states that there is delay of 10 hours in lodging of the F.I.R. And such delay has not been explained by the prosecution.
8. ' In support of his aforesaid contentions, the learned counsel for the applicant has placed reliance on the case of Gadal v. The State 2010 PCr.LJ 280, Case of Abdul Ghaffar v. The State 2009 PCr.LJ 187 and case of Jhando and another v. The State 2006 YLR 3206 and case of Moula Bux and another v.
9. The State 2005 YLR 190.
10. ' On the other hand, learned A.P.-G has submitted that the present applicant is principal accused and on his instigation two innocent persons have been killed. He further says that if the applicant would have not instigated, perhaps the fateful event could not have taken place. Learned A.P.G further says that since two persons have died in this case and the case falls within the prohibitory clause and the applicant is not entitled to bail. In support of his contentions he has placed reliance on the case of Mamaras v. The State PLD 2009 Supreme Court 385 and case of Muhammad Arshad v. The State 206 SCMR 966.
11. ' I have heard the learned counsel for the parties and have perused the record. From the perusal of record it is manifestly clear that no role except instigation has been assigned to the present applicant. It is an admitted position that the applicant was not armed with any weapon. His presence at the scene can be doubted and that there is previous enmity between the parties and criminal proceedings are pending adjudication before appropriate Court. The case of prosecution appears to be doubtful. Even otherwise, it is consistent view of the superior courts that cases in which applicants were assigned the role of `Lalkara' bail has been granted by the superior courts to the applicant.
12. ' In the case of Abdul Ghaffar (supra) a learned Single Judge of this Court while dealing with the allegation of instigation has observed as under:-- "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. It will be relevant to reproduce the following extracts from the above judgments:--- ' Wazir Muhammad v. The State 1978 SCM R 448.---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.
13. ' Sher Khan v. The State 1980 SCMR 448.---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.
14. ' Muhammad Haroon v. The State 1994 SCM R 2161.--- The only allegation against Usman petitioner is that he raised Lalkara 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/Deputy Magistrate, Chiniot.
15. ' 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 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."
16. ' In the case of Gadal and another learned Single Judge while dealing with the above point has observed as under:-- "According to F.I.R, applicant/accused Gadal instigated co-accused and on his instigation co- accused Bakhat Ali had committed murder of deceased, therefore, it is yet to be ascertained whether the applicant has shared his common intention and whether section 34, P.P.C. Is attracted in this case."
17. ' Since there is only allegation of 'Lalkara' it is yet to be determined as to whether the applicant was present at the scene or not or he has made any instigation at the time of occurrence of crime. The case in my view falls under subsection (2) of section 497 Cr.P.C. Requiring further inquiry in the matter.
18. ' The case of Mamaras cited by the learned A.P.G is distinguishable on facts and does not apply to the case in hand for the reasons that in the reported judgment the accused was charged with section 109, P.P.C. And while examining the aforesaid provision the Honourable Supreme Court refused bail to the applicant in that case.
19. ' In the case of Muhammad Arshad (Supra) relied upon by the learned A.P.G the applicant in reported case was armed with Pistol and on whose Lalkara the incident took place, this case is distinguishable as well on facts and does not support the case of prosecution.
20. ' Following the cases quoted hereinabove, the applicant is admitted to bail subject to his furnishing solvent surety in the sum of Rs,2,00,000 (Two Lacs) and P.R bond in the like amount to the satisfaction of trial Court.
21. ' Applicant was granted bail by short order in court; these are the reasons for short order of even date.