' This appeal has been filed against the order of District Court of Criminal Jurisdiction Bagh, dated 4th of November, 1992, whereby Basharat Ahmed Khan, accused-respondent was released on bail.
2. The brief facts forming background to the above appeal are that complainant Sher Afzal Khan is running a hotel in Arja Bazar. On 14th of April, 1992, at about 11 a.m. He received a message from Muhammad Aziz Khan resident of Chichri through Muhammad Arif Khan, resident of Choor Bagla that his son Shahnaz Afzal Khan has been murdered. On receiving this information, the complainant left for Jhala Bazar by bus where he met with Ali Akbar Khan, Muhammad Kabir Khan, Muhammad Afsar Khan, Muhammad Nazir Khan and others who told him that in the intervening night of 13th and 14th April, his son was taken by Races Khan and Basharat Ahmed Khan to the house of Races Khan where he has been murdered. The complainant lodged a written complaint with Police Station Shirkot on which a case under section 302/109, A.P.C. Read with section 5 of the Islamic Penal Laws Act of 1974 was registered against Races Khan and Basharat Ahmed Khan accused. On 9th of September, 1992, Basharat Ahmed Khan, accused moved an application for bail before the District Court of Criminal Jurisdiction Bagh which was allowed vide order, dated 4th of November, 1992. Hence the present appeal.
3. S. Rafique Mahmood Khan, the learned counsel for the appellant raised the following points:--
(i) That this is a murder case in which both the accused persons in furtherance of their common intention murdered Shahnaz Afzal Khan deceased. The accused respondent in the circumstances, was not entitled to bail; and
(ii) that the offences are punishable with death or transportation for life, as such the accused was not entitled to the concession of bail, especially when it is proved that he provided pistol to the co- accused, Raees Khan who fired at the deceased and caused his death. He, in this connection, relied on the statements of Mst. Shahbina Begum and Gulzara Begum who, in their statements recorded under section 164, Cr.P.C., have stated that the alleged pistol with which the fatal injury was caused by Races Khan which took the life of the deceased, belonged to the accused Basharat Ahmad Khan who left this pistol with Races Khan.
4. As against this, Sardar Muhammad Arif Khan, the learned counsel for the accused-respondent argued that no overt act has been attributed to Basharat Ahmad Khan and further that there is no evidence on the file that respondent shared common intention with the principal accused as such he cannot be held vicariously liable for causing the death of the deceased. He further argued that as bail cannot be withheld as a matter of punishment, the District Court of Criminal Jurisdiction Bagh. Therefore, has exercised its judicial discretion rightly in extending the concession of bail to the accused-respondent.
5. I have considered the respective arguments advanced by the learned counsel for the parties and have gone through the record of the case carefully.
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. In this case, the only evidence available on the record against the accused-respondent is that he was a friend of the deceased as well as that of co-accused Races Khan and further that the pistol allegedly recovered in this case, belonged to him which he left at the house of co-accused Races Khan. The police in this case has recovered a diary wherein he has recorded his sentiments about the tragedy in the following words: {{URDU TEXT}} ' On 19th of April, 1992, the police has also recovered at the instance of the ,accused-respondent a `Gatra' from the house of the accused.
7. The material available on the file, threfore, prima facie, is not sufficeint to set aside the discretion of bail allowed to the accused-respondent by the lower Court. This Court can interfere only if the discretionary orders passed by the Courts below are arbitrary, capricious or perverse. In the present case, on the basis of the part ascribed to the accused-respondent, prima facie, it cannot be said with certainty that he shared common intention with the principal offender and hence could be held liable vicariously for his act in causing death of the deceased Shahnaz Afzal Khan.
The role ascribed to the accused-respondent is yet to be inquired into. In such like cases, bail is to be allowed when further inquiry is needed to prove common intention amongst the co-accused persons.
In the aforesaid view of the matter, the accused-respondent was rightly allowed the concession of bail by the Court below. Therefore, finding no force in this appeal, the same stands dismissed.