2009 P Cr (PLP)

SYED YAHYA ZAHID GILLANI, J.

Accused-petitioner Abdullah Shah has been refused bail at lower forums in case F.I.R. No.648 dated 26-5-2008 under sections 302/109/34, P.P.C. of the Police Station Kalu Khan, District Swabi. Hence, this petition for bail.

2. I have heard the arguments of Mr. Muzammil Khan, Advocate, for the petitioner, Mr. Shakeel Khan, Advocate for the complainant and Mr. Alamgir Khan Durrani, D.A.-G. for the State. Record has been gone through.

3. In this incident the complainant Mst. Shahnaz and her relative/guest Ziaur Rehman P.W. got injured, whereas her husband Ghafoor Khan got hit and died due to fire-arm attack by Anwar, absconding accused, launched on the command of his father, Abdullah Shah accused-petitioner. 3.(sic) Learned counsel for the petitioner contended that it is a case of proverbial Lalkara determined at trial that whether the petitioner accused had any intention to kill the deceased and injure the P.Ws.

4. On the other hand, learned counsel for the complainant and the learned D.A.-G. argued that the accused-petitioner is the real brother of deceased and the absconding accused, who is the son of accused-petitioner, would not have opened fire if he had not commanded, therefore, the common intention of accused-petitioner is prima facie established.

5. Normally, bail is allowed in cases of proverbial Lalkara and mostly the number of accused is increased by attributing the role of proverbial Lalkara, but in a criminal case no hard and fast rule can be laid down about the behaviours of accused because of variety of human action and reactions in different circumstances and hence, each case is decided on its own merits.

6. In the instant case, Abdullah Shah accused-petitioner is the real brother of Ghafoor Khan deceased and their houses are adjacent. The accused-petitioner and his son Anwar, absconding accused, were opening a hole in the intervening wall. The deceased asked his brother (the accused-petitioner) to break the wall solely. On this interference, both the brothers altercated. The complainant Mst. Shahnaz, wife of the deceased, and their relative/guest, namely, Ziaur Rehman intervened to pacify the situation. In the meanwhile, the accused-petitioner, who was empty-handed, directed his son to kill the victim and his son, Anwar absconding accused, opened fire in compliance of the order of his father. Resultantly, Ghafoor Khan got hit and died in the hospital. Ziaur Rehman received bruise and Mst. Shahnaz complainant received five inlet wounds and five exit wounds, however, she fortunately survived to narrate the ocular account of the incident.

7. Keeping in view the relations, attached residences of the parties, the background of occurrence, the motive and the alleged prevailing situation on the spot, as narrated by the two injured eye-witnesses prima facie, the nephew could not have fired at his uncle's wife and uncle's guest, had there been no command of his father, who himself was having no weapon. This tentative assessment of the case, purely for the purposes of bail, leads me to the conclusion that palpably the accused-petitioner was not only sharing common intention but leading the intention of the absconding accused Anwar and his command was not proverbial. Moreover, the accused-petitioner has also remained absconder for five months.

8. Resultantly, the accused-petitioner has no case for bail and his application is, therefore, dismissed. However, on the request of the learned counsel for the petitioner that the accused-petitioner is an old man and, therefore, it is directed that challan for his trial may be submitted at the earliest and the trial may be concluded without unnecessary delay. H.B.T.36/P Bail refused.