1997 P Cr (PLP)

Sahibzada Farooq Ali Khan for Petitioners. Sardar Muhammad Latif Khan Khosa for the Complainant. Jameel Ahmad for the State. On 25-8-1994 at 8-00 p.m. in Chowk Bazar near Chowk Paan Wala, Multan an occurrence took place wherein two persons namely Muhammad Ayyub and Abid Hussain were murdered. F.I.R. No.200, dated 25-8-1994 was registered at 10-00 p.m. under sections 302, 148/149, P.P.C. 'at the instance of Muhammad Sadiq complainant, brother of Abid Hussain deceased, Muhammad Sadiq complainant got recorded in the F.I.R. that he was present at his sugar cane Bailna in Chowk Bazar near Chowk Panan Wala, Multan. In front of his shop there was the shop of Muhammad Ayyub deceased on which his brother Abid Hussain deceased was also sitting with him while both of them were talking. Meanwhile the accused persons namely Ghulam Mohy-ud-Din alias Haji Babu, Ahmad, Liaquat Ali each armed with Khanjar, Amanat Ali armed with hatchet and Alla-ud-Din, Nihal-ud-Din and Amin-ud-Din (petitioners) each armed with Chhuri came on the shop of Muhammad Ayyub who raised the Lalkara that they would' not go unescaped. Ghulam Mohy-ud-Din inflicted the Khanjar blows on the person of Muhammad Ayyub deceased which fell on his right arm and chest. Ahmad accused gave the Khanjar blows which hit the back head, throat and left shoulder of Abid Hussain. Liaquat accused gave the Khanjar blows on the abdomen and forehead of Muhammad Ayyub deceased who also gave the Khanjar blow on the left buttock of Abid Hussain deceased. Amanat accused gave the hatchet blows on the left thigh and left wrist of Muhammad Ayyub deceased and also gave the hatchet blow on the back of Abid Hussain deceased. The petitioner-accused Alla-ud-Din, Nihal-ud-Din and Amin -ud-Din each armed with Chhuri remained raising the Lalkaras to the effect that whosoever would come close will have to face the dire consequences and due to that he could not go close to the occurrence. Muhammad Amin and Muhammad Yasin P.Ws. also saw the occurrence. Muhammad Ayyub and Abid Hussain expired. The motive for the occurrence is stated to be that Muhammad Ayyub deceased had the dispute of Khokha with accused persons regarding which the civil suit was pending in a Court of law and preventive proceedings were conducted and that all the accused persons who were related inter se in prosecution of common object murdered Muhammad Ayyub and Abid Hussain.

2. Alla-ud-Din, Nihal-ud-Din and Amin-ud-Din petitioners, who have been attributed the role of Lalkara, filed their application before the lower Court for their admission to bail, which has been dismissed. They have filed this petition to try their luck to be admitted to bail.

3. I have heard the learned counsel for the parties as well as learned State Counsel and gone through the record before me. Learned counsel for the petitioners laid the emphasis that no commanding Lalkara has been attributed to the petitioners who even though armed with respective Chhuri did not use the same and that their presence at the spot is not enough to withhold the concession of bail. He added that the joint Lalkara ascribed to the petitioners may also be viewed with caution and that in the absence of the material about earlier conspiracy in the matter the petitioners are entitled to be admitted to bail. He relied on Sher Khan and another v. The State and another 1980 SCMR 193 according to which the accused to whom the role of Lalkara was attributed and no overt act was ascribed was admitted to bail. He relied on Dhani Bakhsh and another v. The State 1990 PCr.LJ 1293 and Muhammad Farooq and another v. The State 1991 PCr.LJ 1319 to support his argument that an accused though armed with weapon but did not use the same was entitled to be admitted to bail. He also relied on Abdul Aziz v. Bashir Ahmad and the State PLD 1966 SC 658 towards his assertion that in the absence of earlier conspiracy the accused to whom the allegation of Lalkara is attributed is entitled to be admitted to bail. On the contrary learned counsel for the complainant relied on the dictum enunciated in Chiragh Din and others v. The State PLD 1967 SC 340 according to which a person shouting Lalkara can be guilty of abetment and that such a question must be decided on appreciation of all the facts including the degree of interest in the crime possessed by the person who shouted the Lalkara and the part he played in the background of the affair. He referred to Ghulam Haider alias Billu v. The State PLD 1978 Lah. 670 wherein it has been held that no hard and fast rule(s) regarding a fact of Lalkara for the purpose of bail can be determined and the significance, importance and implication of Lalkara is to be considered with reference to context in which the same is uttered. It has been ruled therein that the Lalkara may be effective as firing of fatal shot in a particular case whereas in other case it may simply amount to a shallow slogan just to show off. My view' is that the chain of facts and circumstances have to be viewed and analysed. These petitioners have been held guilty by the police during the investigation. In the circumstances of the matter wherein two persons have lost their lives the presence of the petitioners at the spot while each of them was armed with Chhuri and raised the Lalkara cannot be treated lightly as desired by the learned counsel for the petitioners for my following reasons:-- (i) The place of occurrence is Chowk Bazar near Chowk Panan Wala, Multan City, which is thickly populated area. The occurrence took place during the month of August, 1994 at 8-00 p.m. when the Bazar was open for the accomplishment of the design the presence of more and more persons was necessary especially when two persons lost their lives. (ii) The arrival of the three petitioners while each of them was armed with Chhuri alongwith their co-accused from a different place at the spot of occurrence is enough to make me express that the programme in the matter was chalked earlier at some other place and all the seven accused persons arrived at the spot while each of them was armed. (iii) At the time of, their arrival the three petitioners-accused raised the, Lalkara to facilitate the co-accused who during and after the occurrence had been raising the Lalkara. They strengthened their co-accused towards the completion of the occurrence wherein two persons lost their lives. The significance, importance and implication of Lalkara attributed to the petitioners has to be given the due weight to advance the case of the prosecution qua them. The Lalkara attributed to the petitioners has to be considered in the context of the occurrence. (iv) After the occurrence out of the seven accused who allegedly arrived at the spot no person could be apprehended as all of them made good their escape from the Bazar. It has made me to hold that it is not a case of proverbial Lalkara as agitated by the learned counsel for the petitioners. The three petitioners-accused facilitated and strengthened their co- accused. It means that their presence at the spot while armed with Chhuris restrained the onlookers including the complainant and other P.Ws. from stepping ahead and saving both the deceased persons.

4. The only irresistible conclusion, which can be drawn is that the petitioners actively participated in the occurrence in the prosecution of their common object. They are prima facie liable under sections 302, 148/149, P.P.C. who are not entitled to enjoy the concession of bail. 1, therefore, dismiss this petition. N.H.Q./A-779/L Bail refused.