YAR MUHAMMAD vs THE STATE and anothers

' Petitioner Yar Muhammad is one of the accused involved in case F.I.R. No.436 dated 28-12-2003 registered at Police Station, Tajori for offences under sections 302/324/34, P.P.C. He has moved instant application seeking his release on bail after refusal of the same from the two forums below vide orders dated 12-2-2004 and 22-3-2004 respectively.

2. Briefly narrated the facts of the case according to F.I.R. Lodged by Mst. Naseeba, complainant are that on 28-12-2003 she alongwith her son Baghi Shah started from their house towards Kotka Abdullah Jan in order to fetch fodder. At about 0900 hours when they reached the road leading to Kotka Malik Jan, they saw Aziz Khan, Mir Ghajan son of Manan and Yar Muhammad son of Muhammad Azim sitting there duly armed with Kalashnikovs. No sooner they saw them, they started firing at them. As a result of firing made by Mir Ghajan, her son got hit while she luckily escaped unhurt. When she went near her son, he was breathing his last. After the occurrence, the accused fled away from the spot. Motive leading to the occurrence was stated to be previous blood feud between the parties.

3. Appearing on behalf of the petitioner, Mr. Humayun Khan Wazir, Advocate raised the point of delay in lodging of the F.I.R. And the presence of reasonable grounds to believe that the petitioner had been falsely charged. Additionally, he urged that the medical evidence shows one wound on the person of deceased which is clearly indicative of the fact that it was the doing of one person and the question of vicarious liability would not be attracted in the circumstances of this case. To support the contentions, he placed reliance on Nasir v. The State 2000 PCr.LJ 165 Lahore.

4. Mr. Muhammad Sharif Chaudhary learned Deputy Advocate General for the State, on the other hand, while opposing the bail application, contended that the petitioner is directly charged in the F.I.R. For commission of crime and that having shared common intention with absconding co- accused, he is vicariously liable for the offence and thus not entitled for the concession of bail.

5. To consider the bail matter of an accused person involved in a non-bailable offence, if there appear reasonable grounds for believing that he is guilty of an offence punishable with death or imprisonment for life, he shall not be released on bail unless case is covered by any of the provisions in subsection (1) of section 497, Cr.P.C. If it appears to the Court at any stage of the investigation, inquiry or trial, as the case may be that there are no reasonable grounds but there are sufficient grounds for further inquiry into his guilt, the accused shall be released on bail under subsection (2) of section 497, Cr.P.C.

6. The power conferred by section 497, Cr.P.C. Is not arbitrary power. It has to be exercised by reference to material placed before the Court and as to what that material should be. That material shall consist of accusation made in the report to the police, nature and credential of evidence which the prosecution proposes to lead in the case and all other relevant circumstances surrounding the occurrence. The relevant circumstances including the evidence produced by the accused and bail has to be allowed or refused on the basis of this material. It follows that the Court has to make a tentative assessm ent in order to decide a bail application as the section does not in terms contain any restriction on the Court's power to assess the evidentiary value of the material produce before it.

7. It is a settled principle of law that at bail stage, the Court has only to see whether the accused was connected with the commission of crime or not. For that purpose only tentative assessment of evidence is to be made and deeper appreciation is not called for. It is the mind of the Court which is to be satisfied that the case under its consideration is fit case or not for grant of bail in line with guide lines converting legal requirements.

8. It was held in PLD 1995 SC 34 that question of benefit of reasonable doubt is necessary to be determined not only while deciding the question of guilt of an accused but also while considering the question of bail, because there is a wide difference between the jail life and free life. So, benefit of reasonable doubt about occurrence itself, identity of the accused, part allegedly played _by him in the occurrence, his presence on the spot and on the question of his vicarious liability, would go to him even at bail stage.

9. I have heard at length the arguments of learned counsel for the parties in the light' of material available on file.

10. No doubt it is true that petitioner is directly charged in the F.I.R. For commission of crime but the fact cannot be lost sight of that effective role of firing resulting into the murder of Baghi Shah deceased has been attributed to Mir Ghajan, absconding co-accused. The mere fact that petitioner has been nominated in the F.I.R. As one of the accused persons, by itself, would not be a good ground to refuse him the concession of bail if otherwise his case is found fit for the grant of bail. So far as the question of vicarious liability is concerned, the issue can be appropriately dealt with by the trial Court after recording evidence. I am not oblivious of the fact that the issue of vicarious liability can also be considered at the bail granting stage provided the material placed before the Court justifies the same. In this view of the matter, I am fortified by the observations made in PLD 1995 SC 34 and Faqir Hussain v. Asad Ali Khan and another 2003 PC r .LJ 518 Peshawar.

11. For the aforestated reasons, this petition is accepted and it is directed that petitioner Yar Muhammad be released on bail provided he furnishes bail bonds in the sum of Rupees three lacs with two sureties each in the like amount to the satisfaction of Illaqa/Duty Judicial Magistrate.