1989 P Cr (PLP)

This is a very short decision of the Hon'ble Supreme Court and in my view this decision does not lay down the principle that an accused who has uttered a Lalkara is entitled to bail. (iv) Muhammad A min v. State 1987 S C M R 1522. In this decision the Supreme Court did not accept the application for bail made by one of the petitioners who had been ascribed a specific part in the killing in the murder but another petitioner was granted bail on the ground that `no specific role is attributed to him in the F.I.R. and his case was at par with Iftikhar Ahmed and Imtiaz who have already been granted pre-arrest bail by the Sessions Court". In my humble view this decision also does not lay down the principle that in case a Lalkara is attributed to an accused, he must be granted bail. As observed earlier, Mr. Zawar Hussain Jafferi, learned A.A.-G. has opposed this bail application. He had cited following decisions of the Supreme Court:- (a) Fazilat Bibi v. Karam Khan 1986 S C M R 1628. This was a petition filed by widow of the deceased against the order of learned Single Judge of the Lahore High Court granting bail to one Karam Khan. The bail was cancelled by the Supreme Court. The decision of the Supreme Court is reproduced here:- (2) "We have heard the learned counsel for the petitioner and gone through the relevant portion of the evidence on the record. The prosecution version is that there was old hostility between Bashir Ahmed (deceased and the accused party. Bashir Ahmed was involved in a criminal case fog the murder of a member of the accused-respondent party. He had beer taken by two police constables, namely Muhammad Saeed and Muhammad Ilyas, for producing him in the Court of Assistant Commissioner, Shakargarh, in connection with his trial. After the hearing he was being transported back in a wagon. When it reached Bus Stop Manzoorpura Plot, where some passengers got down from it, all of a sudden the accused persons including Karam Khan respondent No.l came in front of the wagon and forced Bashir Ahmed (deceased) and the two Police constables to come out. All the three persons got down from the wagon and the accused-respondents placed guns at the necks of the police guards and snatched away their rifles. Although, Bashir Ahmed was in handcuffs, yet he managed to escape and ran into the house of his father which was situated nearby. The accused pursued him, broke open the house and killed him. The accused were subsequently arrested and applied for grant of bail which was refused to them by the learned Sessions Judge, Sialkot. The High Court, however, granted bail to Karam Khan respondent No. 1. (3) The main ground for granting bail to the respondent was that the accused are said to have come m two batches and that Karam Khan had come in the second batch and the fatal shot was attributed to Zafar Khan accused. (4) On considering the facts and circumstances of the case and the material on the record we are of the view that the reasoning of the High Court in this case for grant of bail to the respondent is not tenable. Even otherwise, considering the nature of the offence committed .by the accused-respondent as described by the learned Sessions Judge, Sialkot, while refusing bail to the accused, it is an outstanding example of extreme lawlessness in total disregard of the Law Enforcing Agencies. We feel that the respondent in this case did not deserve to be released on bail. (5) In view of the above discussion -we convert this petition into appeal and allow the same. The bail granted to Karam Khan respondent is, therefore, cancelled and he shall be taken into custody forthwith. (b) Mubarik Shah v. State 1986 S C M R 1681. In this case the bail had been refused by the Lahore High Court and the accused filed a petition before the Supreme Court. Earlier the Sessions Judge had also refused bail to the accused observing that not only the role of issuing Lalkara was attributed to him but in fact the actual motive was also attributed to him. The High Court dismissing the application for bail observed as follows:- "The whole case of the complainant party is that the petitioner traffics in narcotics and that the other three co-accused are his servants and agents. The fatal Lalkara is attributed to the petitioner, which led to indiscriminate use of fire-arms by the other three co-accused. Without going on the record as having given any finding in the matter, I would only say for the limited purpose of this bail petition, that the petitioner is not entitled to be released on bail" Before the Supreme Court, on behalf of the accused/petitioner, the. contention raised was that the only role ascribed to the petitioner was the proverbial Lalkara. The Supreme Court rejected the petition for bail observing us follows:- "We have heard the learned counsel at length and find that his submission has been duly taken note of by both the Courts, and a prima facie view of the entire available material has been formed which even to us at this stage, does not appear exceptionable or requiring correction. Hence leave to appeal is refused." I may in all humility observe that no hard and fast rule has been laid down by the Supreme Court that where an accused has not taken part in the actual firing or inflicting blows resulting in the death of a victim but has been attributed the role of raising a Lalkara or slogan, the accused is or is not entitled to bail. It depends on the facts of each case as to whether the Lalkara or slogan or E instigation attributed to an accused is such so as to raise a presumption of pre concert or common intention with the main accused who actually inflicted the fatal shots or blows. Here I may refer to another recent decision of the Supreme Court in the case of Iqbal v. State reported in 1982 S C M R

84. In this case, petitioner was armed with a stick and alongwith three co-accused who were armed with fire-arm and hatchets, the attack was made against the deceased. The petitioner did not take part in the killing. He did not use his stick. Deceased was shot dead by the co-accused. However, after the deceased had been shot dead by the co-accused, the petitioner took out money from the pocket of the deceased and then fled away from the spot. The High Court had refused bail to the petitioner. The Supreme Court dismissed the petition for bail observing that from the F.I.R. it appeared that the accused acted in pre-concert and the petitioner was also assigned the active role of having taken out the money from pocket of the deceased after he had been shot dead on the spot. From the decision of the Supreme Court reported in 1982 S C M R 84 and other decisions of the Supreme Court it follows, as observed earlier, that no hard and fast rule has been laid down in relation to an accused who is not assigned an active role in the actual killing of the deceased. As observed earlier, it depends on the facts of each case whether in such a situation the applicant can be said to have acted in preconcert with co-accused who actually killed or murdered the victim. On a set of facts, at bail stage, the Court may take the prima facie view that on the basis of the Lalkara or some other act it appears that the applicant/accused acted in preconcert with the main accused whereas on another set of facts the Court may arrive at a prima facie view that it is a case of further inquiry as to whether the applicant who had raised a Lalkara or had done some other act had acted in preconcert with the main accused. The prosecution version in the instant case has already been referred to in some detail in the earlier part of this order. It may be repeated that according to the prosecution case on the night of the incident at about 10-45 p.m. the two applicants alongwith the main accused Khair Muhammad entered the premises through a window and at that time Khair Muhammad and applicant Ghulam Nabi were armed with guns and applicant Ali Nawaz was armed with a hatchet. Khair Muhammad is alleged to have fired at the deceased after saying that he was a Karo and could not be spared and the victim died on the spot and after the shouting the two applicants gave Hakal to the complainant party that they had no concern and that the applicants had murdered the Karo. It is further alleged that later on the three accused including the two applicants after seeing that the deceased had died went away raising slogans. The prosecution version, therefore, shows that the three accused including the two applicants had come armed with deadly weapons late at night. They entered the premises where the complainant party was present through a window. The victim is shot by the main accused. The two applicants are alleged to have given Hakal to the complainant party stating that they had murdered the Karo and then they go way from the scene of incident raising slogans. In these circumstances, it can be said that prima facie the two applicants acted in pre-concert with the main accused in the killing of the victim. The two applicants were, therefore, not entitled to grant of bail. For the aforesaid reasons the bail application moved by the two applicants was rejected by the short order passed by me on 21-10-1987 on the conclusion of the arguments. S.A./G-77/K Bail refused.