Accused-petitioners Haji Khan Shereen and Manzoor his son are seeking bail in case F.I.R. No, 178 dated 2.6.2005 registered by Police Station Shinkiari, District Mansehra for crimes under Section 302/109/34 P.P.C.
2. Arguments heard. Record perused.
3. Deceased Siraj himself reported the crime in Rural Health Centre Shinkiari on 2.6.2005 at 9.45 a.m. to Zulfiqar Khan Jadoon, SHO wherein he alleged that on that day at about 7.30 a.m. he was returning home from Bakrial and when he renched near the house of principal accused Raja who has not applied for bail, there Raja accused alongwith Salam his brother, Khushal accused and Manzoor and Khan Shereen (petitioners) emerged. Khan Shereen raised "Lalkara" and under his command Raja accused fired at the deceased as a result he got injured. The rest of the accused also fired ineffectively. Motive for the crime was disclosed to be a previous blood feud. The deceased succumbed to the injury later on, thus Section 302/109 PPC were incorporated.
4. The two petitioners applied for bail to the learned Ilaqa Magistrate, namely, Miss Hajira Rehrnan who granted them bail on 8.7.2005. This order was challenged through B.C.A. No, 100/2004 before the learned Sessions Judge, Mansehra who accepted the same and cancelled the bail granted to accused-petitioners vide impugned order dated 15.9.2005 by holding that the accused-petitioners were directly charged in the F.I.R. which has assumed the status of dying declaration and such dying declaration cannot be deeply assessed at bail stage and bail cannot be granted at random or in a routine manner in such cases.
5. The provision of Section 497 Cr.P.C. provides sufficient guide lines and has vested the Magistrate, the Sessions Court and the High Court with concurrent powers in the matter of grant of bail. It has been a consistent view that once bail is granted by a competent Court for valid reasons on consideration of materials available before it then, the Court higher in rank shall exercise considerable restraints in interfering with such order because liberty of a man is equally precious and guaranteed one which cannot be disturbed except in accordance with law and according to the salutary principle laid down in this regard.
6. No doubt in a case of dying declaration Courts at bail stage have to take extra degree of care and caution while making tentative assessment of it alongwith the other relevant materials placed before it but there is no legal or statutory bar placed on Courts powers to grant bail in a case based on a dying declaration. It was never the intention of the law makers to eyewtinabsolute or complete embargo on grant of bail in a criminal case baed on a dying declaration. The judicial prudence, however, requires that such cases be looked at with care and caution and the principle of tentative assessm ent of materials is to be followed with extra care and caution while recording findings so that the legal worth and value of the same is neither diminished nor prejudice is caused to it. However, at the same time Court cannot decide bail petition in entire vacuum for the simple reason that because assessm ent of dying declaration is involved. Refusing the grant of bail on such ground alone would not be a correct approach to the subject as the same would amount to incorporating additional embargo/prohibition into the provision of sub-section (1) of Section 497 Cr.P.C. which is not within the competence and jurisdiction of the Courts.
7. The dying declaration like statement of any other witness including injured witness is to be measured on the same yard stick which is used and applied to other cases. The surrounding facts and circumstances of a case cannot be lightly ignored.
8. In the instant case, in the dying declaration role of proverbial Lalkara has been attributed to accused-petitioner Haji Khan Shereen who is undeniably of the age of 80 years and is suffering from cardio-vascular disease an infirmity of a grave nature while petitioner Manzoor has been attributed ineffective firing. The deceased has sustained a solitary entry would of the size of 1/2 inch x 1/2 inch on left hip with no exit wound. Thus the question of vicarious liability of the said accused is certainly a begging one looking askance. From the crime spot no empty has been recovered from the point attributed to him to show his participation in the commission of the crime, thus because he has been charge directly in the F.I.R. which has become dying declaration ipso facto would not establish his participation in the crime. The view that dying declaration like any other statement is divisible is supported by the principle laid down by the honourable Supreme Court in the case of "Tawaib Khan and another vs. The State" (PLD 1970 SC page 13). Albeit the apex Court has laid down the said principle in an appeal against conviction but it can be pressed into service in exceptional and rare cases even at bail stage with some degree of care and caution. The principle of vicarious liability of an accused requires stringent proof. Mere bald allegation would not be sufficient to refuse bail to an accused for his being vicariously liable for commission of a crime. Same sort of corroboratory evidence is definitely required to connect his neck with the commission of crime like his principal accused. What should be the degree and quality of materials/evidence to hold him vicariously liable, no fast and hard rule can be laid down in this regard. However, total absence of corroboratory materials/evidence would bring the case of such an accused within the ambit of subsection (2) of Section 497 Cr.P.C. and would be entitled to bail as of right.
9. The principles granting and cancelling bail are entirely different from one another. For cancellation of bail granted by a competent Court, very strong and cogent reasons are required.
For instance if the bail granting order is perverse or is in disregard of well settle principles regulating the grant of bail or it is based on no materials/evidence. The honourable Supreme Court in the case of "Tariq Bashir vs. State" (PLD 1995 S.C. 35) has held so with considerable clarity and has laid down a binding principle to that effect. This principle was not taken care of by the learned Sessions Judge while cancelling the bail granted to accused-petitioners by the learned Magistrate.
Again at the time of cancellation of bail of the petitioners, the challan was already drawn and was ripe for submission to the trial Court and the trial there after commenced within a week time. It was not a proper stage for cancellation of bail on consideration of merits of the case which is therefore, against the well established principle and on this score too the order of the learned Sessions Judge cancelling the bail cannot be maintained.
10. For what has been discussed above this petition is allowed and both the accused-petitioners are granted bail in the sum of Rs, 3,00,000/-with two reliable sureties each in the like amount to the satisfaction of the trial Court. Needless to remark that the above assessment is tentative in nature and shall in no manner prejudice the mind of the trial Court who shall act according to the evidence to be recorded.