Raja Saeed Akram Khan, J.--This appeal has been directed against the order of the Shariat Court dated 10.03.2012, whereby, the revision petition filed by the appellants was dismissed.
2. The facts in brief are that the complainant lodged a report at Police Station Dudyal on 30.05.2011, alleging therein, that he along with his brothers, Zahoor Ahmed and Muhammad Riaz while boarding on a vehicle were going to their home from the hotel. At 7:40 pm when they reached the Dudyal Bazar, then the accused, Ibrar, Ghaffar, Jabbar, Nisar, Sarfraz sons of Qurban Hussain, r/o Potha ,Bangash, Jameel Ahmed son of Sheikh Arshid, r/o Mirpur, Tahir son of Zaffar, r/o Mohara Gujjran, Zahoor, Imran alias Moon sons of Noor Ahmed, r/o sector 6 along with three unknown persons suddenly appeared on the road and stopped their vehicle. The accused raised a lalkara, exchanged hot words and asked Zahoor Ahmed to alight from the vehicle. The accused said that they will not let Zahoor Ahmed to go alive. The accused, Ghaffar armed with .30-bore pistol, accused, Jamil armed with iron fist, Ibrar armed with 30-bore pistol and Imran accused was having a .12-bore repeater. After stopping the vehicle, the accused, Ghaffar with an intention to kill fired six shots upon his brother. The fire hit him at his back left arm and broken the wind screen of the vehicle. In the meantime the accused, Jamil inflicted injury on the head of the complainant's brother with iron fist, whereas, accused, Imran alias Moon made aerial firing with'.12-bore riffle. The injured while in way to the Tehsil Headquarter Hospital succumbed to the injuries. The motive behind the occurrence was stated to be a quarrel taken place between Zahoor Ahmed and accused Ibrar Ahmed.
3. On this report, a case under sections 302, 341, 147, 148, 149, 427, 3371H-2, APC and 13 Arms Act, 1965, was registered against the accused. After registration of the case the police arrested the accused.
On 07.09.2011, the accused moved an application for grant of bail in the Court of Additional District Court of Criminal Jurisdiction, Dudyal, Camp Mirpur. The learned trial Court after hearing the parties while accepting the application of the accused-respondents extended the concession of bail to them vide order dated 15.11.2011. Feeling aggrieved from the order of the trial Court the complainant-appellants filed a revision petition before the Shariat Court which was also dismissed vide impugned order dated 10.03.2012, hence this appeal.
4. Mr.Khalid Rashid Chaudhry, Advocate, the learned counsel for the appellants argued that both the Courts below have committed grave illegality while extending the concession of bail to the accused-respondents. He argued that the concession of bail was extended to the accused- respondents without consultation of the record as it is apparent from the findings of the learned Shariat Court that the same are totally against the record. He contended that the accused- respondent, Ibrar was armed with .30-bore pistol, whereas, the learned Shariat Court attributed a quite different role to the said accused which itself shows that the learned Shariat Court has not applied its judicial mind while dismissing the revision petition. He further argued that both the Courts below have not adhered to law on the subject. The accused were duly nominated in the FIR with specific roles, their presence at the seen of occurrence is not suspected and in the result of that occurrence an innocent person was murdered. The accused respondents are not entitled to the concession of bail. He contended that the case of the accused-respondents falls under the prohibitory clause of Section 497, Cr.P.C., but the learned Shariat Court failed to take into account that in the cases which fail under the prohibitory clause, the bail can only be granted if the Court after assessing the material comes to the conclusion that the accused have not committed the offence punishable with death or life imprisonment. He further contended that in the case to hand 'all the accused-respondents played the specific role in furtherance of their common intention, but the Courts below failed to take into account that they are vicariously liable. In this way, the learned trial Court as well as the Shariat Court has not adhered to the principles of vicarious liability. He submitted that the accused-respondents are involved in a heinous offence. He submitted that the accused, Ibrar was armed with dagger and the same was recovered on 06.06.2011 but this aspect of the case overlooked by both the Courts below. He further submitted that the other accused- respondent, namely, Tahir was armed with .30-bore pistol, whereas the learned Shariat Court has shown him as empty handed. The accused-respondent, Imran was armed with .12-bore gun at the time of occurrence and 3 cartridges were also recovered from the spot which shows that the same are used in the occurrence, but the learned Shariat Court failed to take into consideration all these aspects. He argued that the finding of the learned Shariat Court that no lalkara has been raised by the accused-respondents is against the record, whereas it is categorically alleged in the FIR that all the accused at the time of occurrence raised the lalkara. He lastly argued that the material collected by the prosecution is sufficient to believe that the accused-respondents committed the offence punishable with death or life imprisonment, therefore, the case of the accused- respondents does not fall under Section 497(2), Cr.P.C. The learned trial Court has wrongly exercised the discretion, therefore, the order was liable to be recalled, but the learned Shariat Court failed to decide the revision petition in a legal manner. He has relied upon the cases reported as Muhammad Sadiq v. Sadiq and others [PLD 1985 S.0 182] and Abdul Qayyum v. Adalat and 4 others [2002 SCR 552].
5. Mr. Muzaffar Ali Zaffar, the learned Addl. Advocate-General, also supported the arguments advanced by the learned counsel for the appellants. He submitted that it is a case of promptly lodged FIR in which substitution is rare phenomena. All the accused actively participated in the occurrence and the case falls under the prohibitory clause of Section 497, Cr.P.C.
6. On the other hand, Mr.Abdul Hamid, Advocate, the learned counsel for the accused-respondents strongly controverted the arguments advanced by the learned counsel for the appellants and the learned Additional Advocate-General. He submitted that the learned Shariat Court has not committed any illegality while dismissing the revision petition as the learned trial Court has rightly exercised the discretion while extending the concession of bail to the accused-respondents. He submitted that the prosecution has tried to widening the net while roping all the family members in the case. He contended that it is a case of sudden provocation as nothing has come on the record that there was any previous enmity between the parties. He further contended that the allegation of firing inside the car is not proved as no empty was recovered inside the car which itself make the case one of further inquiry. He lastly submitted, that once bail has been granted there must be strong reasons for its cancellation.
7. We have heard the learned counsel for the parties and perused the impugned order along with the record made available. The accused-respondents were arrested in pursuance of FIR registered on the stance of the complainant with different allegations. The whole ease argued by the learned counsel for the appellants before this Court for cancelling the bail granted by the trial Court which was upheld by the learned Shariat Court is. that all the accused-respondents duly participated in the occurrence, who were armed with their respective weapons and they were nominated in the.
FIR with their specific role, therefore, the principle of. vicarious liability is applicable. It may be observed here that ordinarily at the bail stage the Courts refrain to dive deep to asses whether the element of vicarious liability exists or not, however, the rule is not inflexible. If in the circumstances of the case it can be gathered that the accused pre-planned a scheme, hatched a conspiracy and in execution of that plan or conspiracy they participated in the commission of offence then question of vicarious liability would apply with full force, as laid down by this Court in a case reported as Khadim Hussain and 5 others u. Sher Afzal and another [2000 P.Cr.LJ 974], wherein it has been held that:-- "7. After hearing the respective contentions of the learned counsel for the parties and perusing the record, it may be stated at the very outset that it cannot be laid down as an inflexible rule of law that question of vicarious liability cannot be determined at the stage of bail. If in the circumstances of the case it can be gathered that the accused pre-planned a scheme, hatched a conspiracy and in execution of that plan or conspiracy they participated in the commission offence, the question of vicarious liability applies with full force. However, this has to be ascertained cautiously without entering into detailed scrutiny and appreciation of merits of the case of the prosecution. For application of Section 149, it is necessary:--
(i) That one should be a member of an unlawful assembly;
(ii) That in prosecution of common object of that assembly the offence should be committed by a member of an unlawful assembly; and
(iii) That the offence should be of such a nature that the members of the assembly knew that offence is likely to be committed in prosecution of their common object."
There is no clog on the Court to examine the principle of vicarious labiality at the bail stage provided if from the FIR, the accused appear to have acted in pre-concert and in pursuance of the common intention with the co-accused who caused fatal injury to the deceased and can be saddled with constructive or vicarious liability while taking into account Section 34 of APC. The principle laid down by this Court as well as the Courts of Pakistan jurisdiction, the Court on the basis of material placed before it, such as the F.I.R and the statements recorded by the police may go into the question whether the case of constructive liability was made out or not even at the bail stage. Reliance can be placed on a case reported as Rana Muhammad Safdar u. Gulzar Ali alias Papoo and another [1999 P.Cr.LJ., 1] wherein it has been observed that: "8. In view of the aforesaid precedent cases it is now well-settled that the principle of vicarious liability can be looked into at bail stage and if it is transparent from the contents of the F.I.R. that the accused had acted in pre-concert or he shared the community of intention with his co accused who caused fatal injury to the deceased, he can be saddled with constructive or vicarious liability at the bail stage by invoking Section 34, P.P.C. and there is no legal bar to determine the question of his constructive/vicarious liability while deciding his bail petition. However, there is no cavil to the proposition that this assessm ent shall be tentative in nature, and would not prejudice the case of the accused during the trial."
'The main crux of the above discussion is that after taking into account the principles of 'vicarious labiality it can safely be held that the question of vicarious labiality can only be taken into account if the Court while examining the material referred to above is of the opinion that the accused has acted in pursuance of conspiracy hatched by them and in furtherance of the common intention participated in the occurrence, but the principles are not applicable at the bail stage when it is spelt out from the record that the occurrence was not pre-mediated and the same of the result of sudden provocation. Reliance can be placed on a case reported as Muhammad Younus and 2 others v. The State [1989 P.Cr.LJ., 1995], wherein it has been observed that:- "The principles evolved on the above subject also seem to be relevant to the existence or absence of reasonable ground for believing that the accused is or is not guilty of an offence falling within the prohibitory part of subsection (1) of Section 497, Cr.P.C. In all such cases, as in the preceding paragraph, it must, prima facie, be shown that the injuries sustained by the accused party, in order to qualify for grant of bail, actually occurred during the course of the incident, that the same are either serious in nature or several in number to require an explanation from the complainant party and that they have not been brought about, by way of contrivance, to launch counter- proceedings, with a view to cloud the real offence. Suddenness of fight, on the other hand, may involve grave or sudden provocation and absence of pre-meditation. In cases qualifying these tests, there is likelihood of absence of "reasonable grounds" as contemplated in the later part of Section 497(1), Cr.P.C., rendering the matter one of further enquiry and fit for grant of bail."
Similarly, in a case reported as Sher Afzal Khan v. Basharat Ahmed Khan and another [1993 P.Cr.L J S.C (AJ&K) 933] it has been held that:- "6. In my opinion, at bail stage, it is not proper for this Court to involve itself as to whether there existed a vicarious liability or not."
8. After examining the material available on record it appears that the occurrence was not pre- mediated and same has been occurred due to sudden provocation on the altercation took place between the deceased and one Muhammad Ghafar. Therefore, it can safely be held that it would be prejudice to record any findings regarding vicarious liability as it is job of the trial Court who ascertained and determined the fact of vicarious liability after evaluation of the evidence brought on record which stage has not come as yet. It is cardinal principle of law that while dealing with the bail matters, the Courts are bound to confine themselves to the tentative assessment of the material available brought on record rather to go into the deeper appreciation of the evidence, as the basic concept of the bail is, that no innocent person be kept behind bars until and unless prove guilty. Every accused is deemed to be innocent until his guilt is proved. Law cannot be stretched in favour of the prosecution, but the benefit of doubt must go to the accused even at bail stage. It is important to remember that bail cannot be withheld as a punishment. There is no legal or moral compulsion to keep people in jail merely on the allegation that they have committed offences punishable with death or imprisonment for life unless reasonable grounds appear to exist to disclose their complicity. The ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief of interim bail granted to him, but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case albeit his acquittal in the long run. The pre-requisite in the grant of bail by virtue of Section 497(2), Cr.P.C., is that the Court must be satisfied by the opinion expressed by the police that reasonable grounds are available to believe that accused was not guilty of the offence punishable with death or imprisonment for life.
9. After perusal of the material available against the accused-respondents we are of the view that the learned trial Court has rightly assessed the same and was fully justified to form its opinion that the case of the accused-respondents falls within the ambit of further inquiry. There is no allegation of misuse of concession of bail or to 1 temper with the prosecution evidence, therefore, in absence of that, no useful purpose can be achieved while recalling the concession of bail.
10. The law referred to by the learned counsel for the appellants being distinguishable facts and circumstances need not be discussed. The principle laid down by the superior Courts regarding J the grant of bail and cancellation of bail are quite different. Once bail has been granted by a Court of competent jurisdiction the same cannot be cancelled unless it is found that the bail granting order is patently illegal, erroneous factually incorrect and has resulted into miscarriage of justice.
Reliance can be placed on a case reported as Ehsan Akbar v. The State and 2 others [2007 SCM R 482], in which it has been held as under:- "7. It is well-settled principle of law that this Court ordinarily does not interfere with the order of the.
High Court relating to bail particularly in case of murder when the trial is to commence so as to avoid discussion and remarks on the merits of the case. But it is also fact that for cancellation of bail, strong and exceptional grounds are required. It is to be seen as to whether order granting bail is patently illegal, erroneous, factually incorrect and has resulted in miscarriage of justice."
In the light of hereinabove referred principle of law, no such elements for cancellation of bail are available in the present case. Thus, the bail granting orders passed by the Courts below being in accordance with the principles of criminal jurisprudence need no interference.
In the-light of what has been discussed above, finding no force in this appeal the same stand dismissed.