' Through instant application under section 497(5), Cr.P.C. It has been prayed that the order, dated 22-3-2000 passed by Ilnd Additional Sessions Judge, Shikarpur be set aside and the bail earlier granted to the respondents be cancelled.
2. Precisely stated, prosecution case as per F.I.R. Lodged on 25-1-2000 at 20-00 hours is that on the same day at about sun-set time the complainant party comprising of complainant Muhammad Soomar Fakir, his nephew deceased Arab, his son Yasin and a relative Shadi Jat were intercepted by respondents and co-accused Shaman, Moula Bux, Raza Muhammad Pinjal, Haji Nawab and Usman armed with fire weapons and on instigation of respondents Ali Muhammad, co-accused Shaman directly opened fire upon deceased accused with Kalashnikov and co-accused Moula Bux also directly opened fire upon the said deceased, also others opened fire. It is said that on receiving injuries deceased Arab fell down and died. It is alleged that the incident took place on account of enmity such as the deceased Arab was suspected by the accused party for murder of Azim Kartio brother of co-accused Shaman.
3.. The respondents Ali Muhammad, Abid and Shabir were granted bail under the impugned order which is sought to be cancelled.
4. Contentions of learned State Counsel are that there is allegation against respondent Ali Muhammad that on his instigation co-accused Shaman and Moula Bux fired upon the deceased causing his murder and that during the course of incident, the other two respondents also opened fire, therefore, they ought not to have been granted bail. He submitted that guns have been recovered from respondent Ali Muhammad and Abid whereas a rifle has been recovered from respondent Shabir which are the additional facts going against the respondents. He submitted that in the aforementioned circumstances the respondents were not entitled to the grant of bail but the learned IInd Additional Sessions Judge without application of judicious mind has passed the impugned order extending the concession of bail to the respondents. He placed reliance on case of Rajib and 2 others v. State 1992 M LD 2467 and Ghulam Nabi v. State 1996 SCM R 1023.
5. Learned counsel for the respondents contended that no injury to deceased has been attributed to the respondents and that though they are said to be armed with deadly weapons there is only an allegation against respondent Ali Muhammad that on his instigation the incident took place and that the other two respondents also opened fire. He submitted that in the aforementioned circumstances the case against the respondents is subject of further enquiry and they cannot be held vicarious liable at the time of grant of bail to them. He referred to case of Hyder v. State 1990 PCr.LJ 70 and Muhammad Haroon and another v. State 1994 SCM R 2061. He submitted that considerations for grant of bail and that of cancellation are altogether different. He contended that once a Court of competent jurisdiction has granted bail, very strong and exceptional grounds are required to cancel the same. For instance, he submitted that the bail can be cancelled where the person on bail repeats the offence, hampers the investigation, makes some efforts to tamper with the evidence, commits some acts of violence against the police and prosecution witnesses or manages to flee away from the country or beyond the control of sureties. He placed reliance in a case of The State v. Ali Muhammad Hingoro 1993 PCr.LJ 519, Syed Amanullah Shah v. State 1996 SCMR 241, Gulzar Ahmed v. State 1997 M LD 1606 and Tariq Bashir v. State PLD 1995 SC 34.
6. Admittedly no injury has been attributed to the respondents. They are alleged to be armed with guns and rifle, but they have caused no damage to the deceased. If they had shared the intention of others to kill the deceased, they would have also used their weapons. They also do not seem to have misused the concession of bail. From place of incident only two shells of bullets and two empty cartridges are said to have been recovered whereas there are as many as nine persons who it is said, opened fires. In the circumstances, the matter appears to be of further enquiry.
Vicarious liability in the circumstances shall be considered at the time of trial. Competent Court has granted the bail to the applicant at its discretion under impugned order which does not appear to be fanciful, perverse or arbitrary. Case-law referred to by learned counsel for applicant is in distinguishable circumstances and is not of any assistance to the applicant. Considering all these facts, circumstances and the case-law, we are of the view that the trial Court has exercised its discretion properly. This application, therefore, merits no consideration and is dismissed accordingly.