' DOST MUHAMMAD KHAN, J.--- 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 sections 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, S.H.O. Wherein he alleged that on that day at about 7-30 a.m. He was returning home from Bakrial and when he reached near the house of principal accused Raja who has not applied for bail, there Raja accused along with 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 sections 302/109, P.P.C. Were incorporated.
4. The two petitioners applied for bail to the learned Illaqa Magistrate, namely, Miss Hajira Rehman who granted them bail on 8-7-2005. This order was challenged through B.C.A. No, 100 of 2004 before the learned Sessions Judge, Mansehra who accepted the same and cancelled the 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 provisions of section 497, Cr.P.C. Provides sufficient guidelines 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 along with 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 place absolute or complete embargo on grant of bail in a criminal case based 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 subsection (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 wound 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 charged 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 v. The State PLD 1970 SC p.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. Some 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 hold him vicariously liable, no hard and fast 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 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-settled principles regulating the grant of bail or it is based on no materials/evidence. The Honourable Supreme Court in the case of Tariq Bashir v. State PLD 1995 SC 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 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 thereafter 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 E 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.