1995 P Cr (PLP)

Sardar Khan v. The State 1976 SCMR 171; Mukhtar Ahmad v. The State 1983 PCr.LJ 641; Ahmad Noor and 5 others v. State 1972 PCr.LJ 910; Moundar and others v. State PLD 1990 SC 934; Abdul Haleem v. The State PLD 2986 Pesh. 92; Charagh Din and others v. The State PLD 1967 SC 340; Nawab Khan and another v. The State PLD 1985 Lah. 211; Muhammad Sadiq v. The State 1993 PCr.LJ 1209 and Haq Nawaz v. The State 1987 MLD 3174 ref. Abdul Shakoor v. The State and 6 others 1982 SCMR 970 and Mawasi Khan v. The State 1969 SCMR 289 rel. R.A. Awan for Petitioners. Muhammad Ashraf Bajwa for the Complainant. Mian Muhammad Bashir for the State. This is an application for grant of bail to Molvi Ourban Ali and Muhammad Hafeez, accused in case F.I.R. 173/93, dated 20-12-1993 under section 302/148/149, P.P.C. registered with Police Station Burki, District Lahore. The prosecution case is that petitioners alongwith others on 20-12-1993 at 8 p.m. attacked upon the real brother of complainant Fazal Hussain alias Ranjha. Molvi Ourban Ali, petitioner No.1 was empty-handed while Muhammad Hafeez, petitioner No.2 was armed with a gun, one of their companion namely, Ali Akbar was armed with 222 gun, Shaukat petitioner's son was armed with .12 bore gun, Ali Ahmad was armed with mouzer and Hanif alias Hanifi was armed with 222 gun; the petitioner No.l raised Lalkara that Ranjha the deceased be not spared as he had got his son Sufi Azam murdered; whereupon all the other accused armed with various weapons opened fire which hit the deceased who died at the spot.

2. Learned counsel for the petitioners in support of the petition contended that petitioner No.l was empty-handed who allegedly raised proverbial Lalkara; is an old infirm person of 80 years and the motive as alleged against him in the F.I.R. is falsified by contents of F.I.R. No.61/93 dated 6-6-1993 under section 302/34, P.P.C. on behalf of petitioner No.l in which Fazal Hussain deceased has been shown as eye-witness of the occurrence; hence the deceased could not be instrumental for the murder of his son Azam as alleged and his case is covered under section 497(1), Cr.P.C. as well as is a case of further inquiry. So far as petitioner No.2 is concerned learned counsel argued that role attributed to him is of general nature of ineffective firing and his case is one of further inquiry within the meaning of section 497, Cr.P.C. According to learned counsel on these scores, both the petitioners deserves the concession of bail. He relied on Sardar Khan v. The State 1976 SCMR 171, Mukhtar Ahmad v. The State 1983 PCr.LJ 641, Ahmad Noor and 5 others v. State 1972 PCr.LJ 910, Moundar and others v. State PLD 1990 SC 934, Abdul Haleem v. The State PLD 1986 Pesh. 92.

3. The bail application was opposed on the ground of vicarious liability, concealment of rejection of bail application of one of co-accused namely Shaukat Ali son of petitioner No.1 vide Criminal Miscellaneous No.3436/B of 1994 by the then Mr. Justice Mian Ghulam Ahmad on 30-8-1994 and being hardened criminals as previously involved in criminal cases including under section 302, P.P.C. He relied on Charagh Din and others v. The State PLD 1967 SC 340, Nawab Khan and another v: The State PLD 1985 Lah. 211, Muhammad Sadiq v. The State 1993 PCr.LJ 1209 and Haq Nawaz v. The State, 1987 MLD 3174.

4. The allegations against petitioner No.2 is that he alongwith co-accused had formed an unlawful assembly and in furtherance of common intention, they fired at. Fazal Hussain deceased; the bail application of accused Shaukat Ali was dismissed by this Court on 30-8-1994 and this fact also been concealed from the Court and it was pointed out by learned counsel for the complainant; A invariably the pleas agitated by learned counsel for the petitioners are similar to that of Shaukat Ali co-accused; whose bail application had already been rejected by this Court; in view of rule of consistency; petitioner No.2 is not entitled to the concession of bail; further his two real brothers who are co -accused in occurrence are still absconding and have fired upon the complainant as well as upon the witnesses of the case.

5. As the facts stand out of F.I.R., petitioner No.l has been attributed the role of Lalkara; and such role is commonly alleged against persons to implicate them otherwise and in the case in hand this possibility due to previous enmity cannot be ruled out because this tendency has become common; I would, thus without discussing his case on merits and expressing my 13 opinion; keeping in view of old age and infirmity his case is covered by subsection (1) of section 497, Cr.P.C., therefore, in the light of judgment Abdul Shakoor v. The State and 6 others 1982 SCMR 970 and Mawasi Khan v. The State 1969 SCMR 289, petitioner No.l is allowed bail in sum of Rs.1 lac with two sureties each in the like amount to the satisfaction of A.C./Duty Magistrate Cantt. Lahore. N.H.Q./Q-35/L Order accordingly.