1. ' Having been annoyed over the marriage of Audho son of complainant with daughter of Sevo, accused Makhan, his father applicant Haider and Dodo brother of the applicant went to the Dera of complainant at about 4 a.m. On 4-12-1988. Dodo and Makhan were armed with single barrel guns while Haider was empty-handed. They declared that Kouro had forcibly got Audho and Sevo's daughter married, hence they would kill him. On the instigation of Haider Dodo fired gun shot at Kouro which hit him on the right hand. Kouro ran to the tube-well of Saleh and hid himself in the room. Dodo, Makhan and Haider followed him. Dodo and Makhan fired gunshots at Kouro which hit him on left shoulder, chest and back. Kouro fell down and died and the accused made good their escape. The incident was witnessed by Gujoo, Hussain and Laloo. Gujoo and Hussain were sleeping on the Dera alongwith Kouro while Laloo was there looking after his turn of water.
2. ' Bail application is pressed mainly on the ground that only proverbial Lalkara is attributed to Haider who is father of co-accused Makhan and, therefore, obviously an old man. He was empty-handed.
3. 'His having been implicated falsely in addition to his son on account of the relationship could not be ruled out looking to the habit of the villagers of this part of country simply in order to pressurize the accused party. The bail application was initially moved before the learned trial Court which came to be dismissed on the ground that the applicant was vicariously liable for the offence committed by Dodo and Makhan. The learned trial Court placed reliance on the case of Muhammad Rashid v. State reported in 1979 SCMR 92. This ruling is distinguishable from the present case inasmuch as it was under section 149, P.P.C. While the present case is under section 34, P.P.C. Apart from that the applicant in that case was assigned the role of causing injury to the complainant and thus an overt act was clearly attributed to him.
4. ' The State counsel Mr. Riaz opposed the bail application placing reliance on the case of Jehangir alias Badshah v. The State reported in 1987 SCMR 1154. That case is also distinguishable inasmuch as the petitioner in that case had also participated in the occurrence by hitting Ahmed Din with the pistol with its butt on the head. It would, therefore, appear that not only that was a case of an accused armed with pistol but there was clear overt act of having caused injury on the head with the butt, though it was a case under section 34, P.P.C. Mr. S. Riaz Ahmed next cited the case of Munawar v. The State reported in SCMR 1981 1092 which is also distinguishable from the present case inasmuch as it was a case in which the accused was armed with a pistol and had caused injuries to the complainant with the fire-arm. Hence it was also a case of a clear overt act against the accused. I am, therefore, of the clear view that where only role of instigation or proverbial Lalkara is attributed to an accused and the circumstances do not indicate any preconcert or overt act on his part and the A possibility of his having been implicated falsely in addition to those actually guilty cannot be ruled out, ordinarily the privilege of bail is to be extended to him. This is also the consistent view of this Court, other High Courts of Pakistan and the Supreme Court.
5. ' I therefore, direct that the applicant be released on bail on furnishing surety and P.R. In the sum of Rs,50,000 to the satisfaction of trial Court.