2001 P Cr (PLP)

Syed Sajjad Hussain Shah, A.A.G. for the State. Date of hearing: 21st June, 2000. Petitioner seeks his post‑arrest bail in case F.I.R. No. 381, dated 20‑9‑1999 registered for the offence under section 302/324/148/149, P.P.C., at Police Station Gujar Khan, District Rawalpindi.

2. Briefly stated the facts are that on 20‑9‑1999 at about 9‑00 a.m. while Muhammad Ishfaq son of Muhammad Younas alongwith Ibrar Hussain, Shamshad, and Asif armed with Sotis, Shaukat Hussain and Shahzad armed with spades and Muhammad Younas (petitioner) empty -handed were going on a tractor and trolly filled with earth when he was stopped by Muhammad Yaseen (deceased) from passing through the land. Muhammad Yaseen stood in front of the said tractor to restrain Muhammad Ishfaq from passing through the said land upon which Shaukat asked Muhammad Yaseen to give way to the said tractor failing which he shall be run over by the said tractor. Muhammad Ishfaq consequently gave race to the tractor and then ran over Muhammad Yaseen. Consequently, Muhammad Yaseen received injury and fell on the ground. On the hue and cry of the complainant, Khurram Shahzad, Tahir Jameel and Mst. Naseem Akhtar wife of Muhammad Yaseen were attracted to the spot. Thereupon, Muhammad Younas (petitioner) raised Lalkara that they shall not be allowed to go alive. Muhammad Shaukat and others thereafter gave injuries to the said eye witnesses. Thereafter, the complainant lodged the F.I.R. which was initially registered under section 324/148/149, P.P.C. As Muhammad Yaseen subsequently succumbed to the injuries, so the offence under section 302, P.P.C., was also added. The accused/petitioner applied for bail which relief was declined by learned Additional Sessions Judge, vide order, dated 4‑12‑1999. Hence this petition.

3. Arguments heard. Record perused.

4. The stand of the learned counsel for the petitioner is that only role attributed to the present petitioner is of raising proverbial Lalkara and that too, when the main occurrence stood completed, that the petitioner was empty‑handed at the relevant time and has not played any active role except the proverbial Lalkara attributed to him; that the petitioner was arrested on the same day i.e., 20‑9‑1999 and since then he is in the judicial lock‑up. He further submitted that in cases of proverbial Lalkara, the relief of bail has been granted to the accused persons. He placed reliance on 1996 PCr.LJ 1876 and 1995 SCMR

343. He further submitted that as no injury has been attributed to the present petitioner so under similar circumstances, the relief of bail has been granted and placed reliance upon 1994 SCMR 2161. He further submitted that the question of vicarious liability shall be considered at the time of trial and placed reliance on 1999 SCMR 1360. He thus, submitted that the case of the petitioner falls within the ambit of further inquiry falling under section 497(2), Cr.P.C.

5. Conversely, the bail application has been opposed by learned A.A.G, on the ground that besides proverbial Lalkara, the very presence of the present petitioner, at the time of running over the tractor‑trolly on the deceased, shows that he was fully involved in the commission of this offence. He further contended that even after committing the murder of Muhammad Yaseen, petitioner raised. Lalkara and exhorted them to commit the murder of even the eye‑witnesses who had gathered on the hue and cry of the complainant. He thus, submitted that under these circumstances the petitioner is not entitled to the relief sought by him.

6. A perusal of the F.I.R. reveals that either prior to the occurrence or after the occurrence the fact remains that the petitioner was empty‑handed. He is alleged to have raised Lalkara for not committing the murder of the deceased but of the persons who had collected at the spot after the main occurrence stood completed. The petitioner was arrested on 20‑9‑1999 and since then he is in the judicial lock‑up. Under similar circumstances the relief of bail has been granted by the apex Court as referred to above. Relying A upon the authorities referred by the learned counsel for the petitioner, thus, case of the present petitioner falls under the provisions of subsection (2) of section 497, Cr.P.C. Consequently, the bail application is accepted and the petitioner is admitted to bail in the sum of Rs. 1,00,000 (Rupees one lac) with two sureties in the like amount to the satisfaction of the trial Court. N.H.Q./M‑344/L Bail granted.