1999 P Cr (PLP)

Saud Akhtar Khan for Respondent No.

1. Malik Manzoor Hussain, Asst. A.‑G. for the State. Date of hearing: 9th February, 1999. Muhammad Rafique is accused in F.I.R. No.224, dated 15‑7‑1998 Police Station Khanpur and is charged under section 324/34, P.P.C. He has been allowed bail by learned Special Judge/Additional Sessions Judge, Haripur vide order, dated 3‑8‑1998. Complainant Shakeel Ahmad has felt aggrieved and filed the instant bail cancellation application.

2. Offence was reported on 15‑7‑1998 at 5‑55 hours to A.S.‑I. of Police Station Khanpur by Shakeel Ahmad complainant who was in injured condition and has stated that on the eventful day and time he alongwith his maternal‑uncle Muhammad Riaz had left their house and were proceeding to attend to their duty at P.O.F. Wah when reached the spot, the present respondent alongwith Ali Haider, Munsif and Amanat had waylaid them. Respondent is said to have raised "Lalkara" over which his co‑accused with their respective fire‑arms, detailed in the F.I.R., fired at him. Consequently, he was hit on different parts of his body.

3. Learned counsel for the petitioner vehemently argued in favour of cancellation of bail and stated that the respondent is directly charged in the F.I.R. made by injured himself which statement of him has been recorded in presence of the doctor. That, in the background of the relationship of the respondent with his co‑accused, i.e., respondent being their maternal‑uncle, the "Lalkara" in the present case tantamount to an overt act and hence in view of the judgments reported to 1998 PCr.L.J page 1652 and 1997 NLR (SC) pages 101 and 298 was not entitled to be released on bail. He further contended that the motive as given in the F.I.R. was such for which whole of the family of the accused party would feel aggrieved and offended, therefore, joining of respondent with his nephews was but natural.

4. He has very forcefully objected to the observations made by learned Additional Sessions Judge in the impugned order with regard to the case diaries of the police which had paved way for the release of the respondent. It was argued that the superior Courts have constantly observed/remarked that opinion of the police not based on cogent evidence with regard to plea of alibi should not ire given any weight more particularly at the bail stage. Lastly, it was submitted that respondent is vicariously liable and equally responsible for the act his co accused who have been attributed the role of firing.

5. Learned Assistant Advocate‑General adopted the arguments of the learned counsel for the complainant and supported the cancellation petition.

6. Learned counsel for the respondent submitted that the respondent has been attributed the proverbial role of "Lalkara" and that only because of his relationship with his co‑accused. Next, he referred to the site plan where the respondent has been shown at point No.3 whereas the rest of the accused at points 4 to 6, but it was argued that the effective firing has been made by the co accused from points Nos.4‑A to 6‑A on which points respondent has not been shown in the site plan. Learned counsel relied on 1993 SCMR page 1992 and PLD 1991 Pesh. page 54 and submitted that bail once granted is not liable to cancellation unless the order granting bail is arbitrary, fanciful or unreasonable.

7. The accused‑respondent is though named in the F.I.R. but is not denied that he is closely related to his co‑accused. He is shown only to be present but was empty handed. In the background of the motive where deceased was suspected to have some illicit liaison with wife of Amanat co‑accused, it is yet to be determined if there was any need for accused‑respondent to have raised Lalkara of the nature so to prompt Amanat or his other brothers to resort to firing. It was Amanat who had direct motive, he, in our view, prima facie did not require any command to be made to take the revenge of his own disgrace.

8. Lalkara assumes importance in a criminal case moreso at bail stage if the Court is of the opinion that under the given circumstances unless such Lalkara was raised the rest of the accused could not have fired. It would be an active role if the two sides having no previous enmity confronts each other and on some issue on the spot and at the spur of moment, there starts an altercation or like situation and in that if some elderly participants ask his co‑participant to resort to violence, i.e., use of weapons, would be a Lalkara of the type which could be termed as command and not merely proverbial Lalkara. . In the instant case, as discussed above, there exists motive and as given in the F.I.R., the accused‑party has waylaid, we are of the view that this Lalkara for the purpose of bail would fall within the scope of proverbial "Lalkara" and would make a case for further probe as far the allegations against the respondent are concerned.

9. In this view of the matter, bail granted to the accused‑respondent in the absence of any allegation of misuse does not require any interference. This application for cancellation of bail is, therefore, dismissed. However, what we have observed above is our tentative opinion based on available record and shall. not in any manner prejudice the mind of the trial Court. We are also constrained to record that the learned lower Courts in general and the Court of learned Additional Sessions Judge, Haripur who has passed the instant order in particular shall refrain in future to go by the case diaries of the police which are based on no evidence and are mere opinions. No finding shall be based on such case diaries. Therefore, the observations made in this case with regard to the entries in the case diaries of the police which found favour with the learned Additional Sessions Judge and have been so incorporated in his order shall be deemed to have been expunged from impugned order. N.H.Q./S‑288/P Petition dismissed.