1. ' The facts of the case, as stated in the F.I.R. Lodged by complainant Sanwan Lashari are that on 5- 8-1999, the complainant accompanied by P. Ws. Was proceeding towards their land, when they saw co-accused Arzi son of Muhammad Khan Lashari armed with gun and Asif and Ghulam Rasool armed with hatchets, who attacked Muhammad Ramzan. Out of them Arzi fired from his gun and others caused sharp-sided hatchet blows to Muhammad Ramzan in presence of complainant and witnesses. The assailants went away and the complainant party shifted the deceased to Hospital,- but Muhammad Ramzan succumbed to injures. Thereafter, Sanwan lodged F.I.R. At police Station Hosri alleging therein that the relatives of the assailants had earlier killed his sister and brother-in- law in which case deceased Muhammad Ramzan was complainant and a few days back Ashique Ali, the applicant, had gone to their village and asked the accused to teach a lesson to Muhammad Ramzan, as he was not withdrawing from the case. In view of this allegation in the F.I.R.
2. The accused/applicant surrendered before the Sessions Court on 27-9-1999 and since then he is in custody.
3. ' Learned counsel for the applicant submitted that no doubt the name of the applicant is mentioned in the F.I.R., but no active role is assigned to him of causing any injury to deceased Muhammad Ramzan, therefore, the constructive liability for the commission of murder requires further inquiry and he is entitled to bail. He relied on the case Amanullah Shah v. State PLD 1996 SC 241 and Faraz Akram v. State 1999 SCM R 1360.
4. ' Learned Assistant Advocate-General opposed the bail plea of the accused/applicant on the ground that the name of the applicant is mentioned in the F.I.R. And there are applications on record indicating that deceased Muhammad Ramzan in his lifetime had approached the higher authorities complaining therein that at the hands of the applicant, he is facing risk of his life.
5. ' Learned counsel for the complainant vehemently opposed the bail plea and submitted that the constructive liability of the applicant is manifestly spelt out from the documents produced during the hearing of this application, which amongst others include the applications of deceased Muhammad Ramzan made by him during his lifetime, which were also referred to by Assistant A.- G. He has also relied on the press clippings showing that threats were being issued by A.S.-I.
6. Ashique Ali.
7. ' I have considered all these contentions. It was argued that the documents such as press clippings and applications of deceased Muhammad Ramzan made by him in his life time are not to be considered at the bail stage and in this regard the learned counsel for the applicant placed reliance on the case Muhammad Ashraf Khan Tareen v. State 1996 SCM R 1747 and Aftab Shahban Mirani v. President of Pakistan 1998 SCM R 1863. In this content the learned counsel for complainant while controverting this contention placed reliance on case of Muhammad Rashid v. State 1979 SCM R 92, and Nazar Muhammad v. State PLD 1978 SC 236; the last mentioned authority was referred and relied upon in the former authority. In view of the law laid down in 1996 SCM R 1747, the admissibility of these documents and proof thereof would be looked into and decided at the time of trial only when author thereof is examined, as such the Court at the bail stage while making tentative assessm ent of the evidence is not required to examine the same for drawing any inference for or against the case of prosecution. All the same the authorities cited by the learned counsel for the complainant call for looking into the material placed before the Court such as statements recorded by police and F.I.R. And not such extraneous material as is relied upon on behalf of complainant. It is worth mentioning here that infact reliance was vehemently placed on application of deceased Muhammad Ramzan made to different authorities in his lifetime; these applications could at the best hint at the background of the case against applicant which in simple terms is, even otherwise, stated in the F.I.R. Itself.
8. Eventually, the main point for consideration at this stage is based on the version given in the F.I.R.
9. That though the applicant was not present at the place of occurrence, allegedly a few days back he had instigated the co-accused who as stated in the F.I.R. Caused fire-arm and hatchet injuries to the deceased. In Amanullah's case PLD 1996 SC 241 allegations against the accused were that one hour before the occurrence he in presence of witnesses instigated one of the co-accused to eliminate the deceased, yet he was granted bail and such order was challenged before the Honourable Supreme Court where cancellation of bail was declined. The learned counsel on the same analogy relied on Faraz Akram's case 1990 SCM R 1360, wherein although the accused was allegedly present no overtact was ascribed to him except of ineffective firing and he was allowed bail.
10. Moreover, in view of the principle laid down in Muhammad Rashid's case and Nazar Muhammad's case (Supra) cited by the learned counsel for complainant the question of vicarious liability of the accused is to be examined tentatively at the bail stage subject to rule of caution laid down in Manzoor v. State PLD 1972 SC 81. The relevant observations made in Manzbor's case are as under:-- ' It is obviously not correct to depend on the ipse dixit of the police regarding the guilt or innocence of a accused person even in the matter of deciding the question of his bail. As repeatedly held by this Court bail in non-bailable cases is a matter within due care and caution on the facts and circumstances of each case. For an offence punishable with death or transportation for life, an accused charged with the same is not to be released on bail if there are reasonable grounds, and the Court for believing that he has committed such an offence. The onus is on the prosecution to disclose those reasonable grounds, and the Court has to examine the data available in the case and the Court has to examine the date available in the case to find out whether such reasonable grounds exist, to connect the accused person with the crime alleged against him. The Court's belief on the point has to rest on the accusations made in the report to the police, the nature and the credentials of the evidence, which the prosecution proposes to lead in the case, and all the other relevant circumstances surrounding the occurrence."
11. Looking to the facts and circumstances of the case in the light of the law laid down in the cited cases, I am of the considered view that constructive liability of applicant requires some further probe and mere allegation that he has been issuing threats and his release would result in more killings could not be a ground for refusing bail and incarcerating him as a preventive measure.
12. There is sufficient merit in the bail plea, which is accepted and the applicant is allowed bail subject to furnishing solvent surety in the sum of Rs,3,00,000 (Three Lacs) and P.R. Bond in the like amount to the satisfiaction of the trial Court.