1. ' This is an application for grant of pre-arrest bail to applicant Abdul Sattar Narejo. Interim pre- arrest bail was granted to the applicant on 15-5-2002 and the case has come up for confirmation or otherwise.
2. ' The facts in brief are that on 25-4-2002 complainant Shahid Hussain Narejo lodged F.I.R. No,27 of 2002 at Police Station Thariri Mahabat, Taluka Mehar, District Dadu stating therein that the drain water of the complainant's house which used to fall in the agriculture land of accused Abdul Sattar (present applicant) was closed by him. On the day of incident complainant, his brother Iqbal Hussain, and cousin Manzoor Hussain who were digging for drain water in the street when at 8-30 p.m. Musadiq Hussain son of Abdul Sattar armed with repeater, Ghulam Farooq armed with DBBL gun, Abdul Waheed armed with SBBL gun Abdul Sallam armed with Lathi and Abdul Sattar empty- handed, came there. Abdul Sattar allegedly instigated the remaining accused to kill the complainant side who were not digging the drains in their own house. Musadiq Hussain fired at Iqbal Hussain who fell down, Ghulam Farooq and Abdul Waheed also fired at complainant and Mulla Manzoor Hussain but it did not hit anybody. Due to commotion and fire reports, persons namely Niaz Hussain, Atta Hussain, Kamran, Altaf Hussain and Asif Narejo reached running there.
3. Accused Abdul Sallam gave Lathi blow to Mulla Manzoor at his head and thereafter all the accused gave butt and Lathi blows to the complainant party. Other villagers also reached there and it is further alleged that while leaving the place of incident Abdul Sattar also took away licensed gun of Iqbal Hussain. Injured Iqbal Hussain and Mulla Manzoor Hussain were taken to hospital but they succumbed to injuries.
4. ' Another version being F.I.R. No,28 of 2002 was registered on the same day at the instance of Abdul Karim Narejo stating therein that drainage water of house of Muhammad Usman Narejo and others used to fall in lands of his relative Abdul Sattar Narejo which was closed. On the day of incident complainant, his nephew Musadiq Hussain, brother-in-law Ghulam Farooq were coming in the street and when at about 5-00 p.m. They reached near the house of Muhammad Usman, they saw accused Iqbal Hussain armed with spade. Niaz Hussain armed with Lathi, Shahid Hussain and Mulla Manzoor Hussain both armed with hatchets, Atta Muhammad, Altaf Hussain and Kamran were also standing there. Iqbal Hussain and others were opening drain. Musadiq prevented them from opening drain on which all the accused abused him. Iqbal Hussain caused spade blows to Musadiq whereas Mulla Manzoor Hussain gave backside hatchet blows to Ghulam Farooq on his head. Accused Niaz Hussain gave Lathi blows on the head of the complainant and all the accused jointly caused kicks, fists and Lathi blows to the complainant and others. On cries Aijaz Ali, Rafiq and other villagers reached there where after accused went away abusing. The complainant went to inform their Nekmard Abdul Sattar (applicant/accused) who was not available in his house and on his arrival after narrating him the above facts went to lodge the report.
5. ' Since the applicant was apprehending his arrest hence he applied for protective pre-arrest bail before this Court. After getting protective pre-arrest bail from this Court, the, applicant filed pre- arrest bail before the learned Sessions Judge, Dadu which was rejected on 9-5-2002 where after the applicant approached this Court.
6. ' Mr. Azizullah M. Buriro, learned counsel for the applicant has argued that present applicant is an elderly person and Nekmard of his area. He has been falsely involved in this case by showing his presence at the time of incident and assigning the role of instigation though he was not present at the spot where the incident took place as is evident from F.I.R. No,28 of 2002 lodged by Abdul Karim complainant. Learned counsel has further argued that the complainant side in order to further involve the applicant has gone to the extent that in the end of the F.I.R. It has also been added that present applicant while leaving the place of incident took away the licensed gun of deceased Iqbal Hussain from his Otaq. Learned counsel for the applicant has argued that in view of the two versions of incident and two F.I.Rs, coupled with the fact that no part of causing any injury to any of the two deceased or any of the two P.Ws. Clearly shows that it is a case of further enquiry and there are no reasonable grounds to believe that the applicant has committed the alleged offence. In case he is arrested he shall face insult and humiliation as the complainant side has named him in the F.I.R. With mala fide intentions and ulterior motives. He has further argued that even from the facts disclosed in the F.I.R. No,27 of 2002 lodged by complainant Shahid Hussain, incident appears to be result of a dispute over a drain which was closed by the accused side in this case and the complainant side was trying to reopen the same. He has further argued that it is well- settled principle of law that bail to a person who is assigned role of instigation or proverbial Lalkara is being granted by the superior Courts. He has further argued that it is yet to be determined as to which party was aggressor. The applicant being empty-handed prima facie cannot be deemed to be sharing the common intention or common object of causing death of any person. He has further argued that the incident even otherwise appears to have taken place at the spur of moment and in such cases each person is to be held responsible for his own act. He has further prayed for confirmation of the interim bail granted to the applicant. Learned counsel in support of his plea for bail has relied upon the following cases:-- ' (1) 1985 SCMR 194, (2) 1995 SCM R 310, (3) Unreported case decided by learned Single Judge of this Court in Criminal Bail Application No,443 of 2001.
7. ' In these cases, the interim pre-arrest bail, granted to the applicants in case of counter-version, was confirmed.
8. ' Learned Assistant Advocate-General has no objection to the confirmation, of the bail as the applicant even according to the F.I.R. Was empty-handed and the only role ascribed to him as that of instigation. He has further pointed out that the applicant has joined the investigation. There is no recovery from him of the gun allegedly taken away by him from the Otaq of the deceased after the incident.
9. ' Mr. Muhammad Sharif H. Qazi, learned counsel for the complainant has vehemently opposed to the confirmation of the bail and has argued that applicant is responsible for the death of two persons. The counter-version recorded through F.I.R. No,28 of 2002 is a counterblast and the same and the said F.I.R. Has been falsely lodged to create the defence. He has argued that it is not necessary to grant bail to an empty-handed accused or a person who has been assigned the role of instigation in each and every case. Learned counsel in support of his arguments has upon the cases reported in 1990 SCM R 83 and 578 as well as 1999 PCr.LJ 175.
10. ' I have given due consideration to the arguments of the learned counsel for the applicant and learned counsel for the complainant. I have also taken into consideration the no objection of the learned Assistant Advocate-General. As a result of tentative assessment of the material on record I find that the case of present applicant Abdul Sattar is distinguishable from the co-accused, He is an elderly person of the locality and headman of his family. It is not unusual in our society that people also involve such head of the families in order to bring more pressure on the accused side. I am of the view that arrest of the applicant may cause insult and humiliation to him as well as his family. No useful purpose will be served if he is taken in custody by the police or the trial Court and subsequently, released on bail in view of the fact and circumstances of the case. As a result of discussion made above, interim pre-arrest bail granted to the applicant is confirmed on the same terms and conditions.
11. Interim pre-arrest .