' Instant application for bail bearing Criminal Miscellaneous No,1274 of 2002 has been moved on behalf of the petitioner, who stands involved alongwith others in a case arising out of F.I.R. No,336 registered on 9-9-2002 in Police Station Mandani, District Charsadda, under sections 302/324/459/148/149, P.P.C. Read with sections 6(a)(b)/7 of Anti-Terrorism Act, 1997.
2. The petitioner submitted an application before Judge Anti-Terrorism Court, Peshawar Division, Peshawar for his release on bail which was rejected vide order dated 2-10-2002. The petitioner has approached this Court with the similar prayer.
3. Shortly narrated the facts leading to the present tragedy are that on the day of occurrence i,e, 9- 9-2000 at 9-00 a.m. Complainant Asad Ali Khan with his wife Mst. Nishat Parveen, daughter Mst.
Tahira Asad, brother Marjan Ali and cousin. Haq Nawaz were present in his house in Deh Piranu Kalay, Charsadda when in the meanwhile, Liaq Shah and Ghulam Rehman residents of Singapur Charsadda. Duly armed with kalashnikovs, entered into the house and resorted to firing on the complainant and other inmates of the house as a result of which Mst. Nishat Parveen and her daughter Mst. Tahira Asad were hit and died at the spot. In addition to the above named accused many other persons including the petitioner were implicated in the case. Marjan Ali brother and Haq Nawaz, cousin of the complainant were stated to have witnessed the occurrence. The motive disclosed in the F.I.R. Was stated to be a dispute over possession of certain land.
4. Mr. Sikandar Khan, Advocate learned counsel for the petitioner, in support of the bail application, raised the plea of alibi and contended that the petitioner employed as foot constable, at the time and day of occurrence was on duty in Police Post Patai Dam and had no motive to join hands with the accused party and facilitate the crime in question. To substantiate the plea he invited my attention to a copy of the Duty Roaster of 8.9-2002 and 9-9.2002 supported by statements of Azizur Rehman, S.H.O., Hakim Khan, IHC, Rokhanzeb Muharrir, Sher Zaman and SiraJul Haq, constables and others. Additionally, he urged that the motive leading to the occurrence related to landlord and tenant dispute and the petitioner had no reason to associate himself with the same. Concluding the arguments, the learned counsel asserted that keeping in view the facts and circumstances of the case and the role attributed to the petitioner, the petitioner's case is one of further inquiry and he is entitled for the concession of bail. In support of his contentions reliance has been placed on Akram Khan v. The State and another 1978 SCM R 242, Ali Akbar v. The State 1991 M LD 2208, Mehmood Akhtar v. The State 1995 SCM R 310, Basharat Hussain v. Ghulam Hussain 1978 SCM R 357, Shahid v. The State 1994 SCM R 393 and Muhammad Haleem Khan v. The State 1986 PCr.LJ 1457.
5. Mr. Muhammad Qasim Khan, Advocate for the complainant, on the other hand, opposed the grant of bail and contended with vehemence that the plea of alibi cannot be taken into consideration at this juncture and that the petitioner had taken active part in the crime and the issue of vicarious liability which is primarily the function of trial Court can be appropriately decided after recording the evidence of the. Parties. He maintained that the discretion has been properly exercised and hail has been refused to the petitioner for valid reasons and there is hardly any justification for this Court to release the petitioner on bail. He relied on Mehmood Akhtar v. The State 1995 SCM R .310; Basharat Hussain v. Ghulam Hussain 1978 SCM R 357, Shahid v. The State 1994 SCM R 393, Mst. Barkat Bibi v. Gulzar 1979 SCM R 65, Munawar v. The State 1981 SCM R 1092, Muhammad Rasheed v. The State 1979 SCM R 92, Hafiz Imam Bux v. Muhammad Bux 1979 SCM R 197, Gul Khan v.
Gul Daraz Khan 1995 SCM R 1765 and Shah Zaman v. The State PLD 1994 SC 65.
6. It is basic principle of law that bail is not to be refused as punishment merely on the allegation that the person has committed an offence punishable with death or imprisonment for life unless reasonable grounds appear to exist to disclose his complicity. It is also not denied that at the bail granting stage the material available on the record is to be taken into consideration and deeper appreciation or evaluation of evidence is not permissible for the grant or refusal of bail and the only tentative assessm ent is to be made.
7. In the present case, undoubtedly the petitioner has been nominated as one of the accused persons in the F.I.R. But the fact cannot be lost sight of that the effective role of firing leading to the murder of Mst. Nishat Parveen and her daughter Mst. Tahira Asad, has been assigned to principal accused Liaq Shah and Ghulam Rahman. The precise allegation against the petitioner is that he alongwith others duly armed, had encircled the house of the complainant possibly in order to foil their attempt to resist possession of land. The petitioner is accused of vicarious liability. The issue can be appropriately dealt with by the trial Court after recording evidence. The plea of alibi raised on behalf of the petitioner is also left to the trial Court to decide. I am not oblivious of the fact that the issue of Vicarious liability can also be considered at the bail granting stage provided the material placed before the Court justify the same. Muhammad Rashid v. State 1979 SCM R 92.
8. It was held in PLD 1995 SC 34 that question of benefit of reasonable doubt is necessary to be determined not only while deciding the question of guilt of an accused but also while considering the question of bail, because there is a wide difference between the jail life and the free life. So, benefit of reasonable doubt about occurrence itself, identity of the accused, part allegedly played by him in the occurrence, his presence on the spot and on the question of his vicarious liability, would go to him even at bail cage.
9. t have gone through the case-law cited on behalf of the complainant and I feel that the same is distinguishable and speaks of the different situation. In cases specially in bail applications, every case, has got its own circumstances and facts and the bails are grantee under those particular circumstances and except broad principles laid down by the superior Courts no other example is attracted in the present case and cannot be considered to be a deciding factor for the purpose of disposing of the bail application.
10. Having regard to the facts and circumstances of the case and keeping in view the role attributed to the petitioner I am of the opinion that petitioner has succeeded to make out a prima facie case for grant of bail. The application of the petitioner succeeds and he is granted bail on furnishing bail bonds in the sum of Rs,1,00,000 with two sureties each in the like amount to the satisfaction of the trial Court.