1994 P Cr (PLP)

Sh. Usman for the Complainant. Arshad Naeem for the State. Being accused in case F.I.R. No.153/93, dated 12-4-1993 registered under sections 302, 148 and 149, P.P.C. at Police Station Noor Shah, District Satdwal, Noora petitioner has moved this petition for his release on bail, the same having been refused to him by the learned Additional Sessions Judge, Sahiwal vide his order, dated 1-8-1993.

2. The case of the prosecution, in nutshell as contained in the F.I.R. lodged by Mst. Jannat Bibi is that she had two sons namely Khadim Hussain and Muhammad Yousaf and three daughters namely Bakhan, Rajan and Rani out of the wedlock of Rehmat Ali. On 12-4-1993 at 1-30 a.m. (after mid-night) when she and her husband were sleeping in the courtyard of their house somebody knocked their door. Upon waking up they saw Ali Sher armed with .12 bore gun, Zulfiqar with hatchet, Jaffar, armed with .12 bore gun and Falak Sher having hatchet who were standing outside the door of their house. Ali Sher asked her husband that Rani their sister was not at their house and according to their information she had come to Muhammad Yousuf son of the complainant. The husband of the complainant told the accused that Yousaf was present at the Dhari as he was watering the fields. In the meantime Manzoor also came there. All the four accused went to the Dhari where Yousaf son of the complainant, Niamat Ali younger brother of her husband and Waryam were present. Rehmat Ali, the husband of the complainant inquired from Yousaf about the whereabouts of Rani about which ignorance was shown by him. It is further alleged that in the meantime Ali Sher and Jaffer fired upon Muhammad Yousuf with their respective guns which hit him on the different parts of his body as a result of which he fell down. Zulfiqar and Falak Sher gave him injuries with their hatchets in that position. When Rehmat Ali intervened he was also fired at by Jaffer. He also fell down. Falak Sher and Zulfiqar also gave him hatchet blows. When Niamat Ali intervened Zulfiqar and Falak Sher gave him hatchet blows on the different parts of his body. Manzoor and Waryam succeeded in running away but Rehmat Ali, Yousuf and Niamat Ali died there. In the meantime being attracted by the fire reports Noora petitioner also reached there who raised a Lalkara instigating the co-accused that nobody should be spared from the house of the complainant. Upon which all the four accused started running towards the house of the complainant and attacked upon Khadim Hussain at the instigation of the petitioner with their respective weapons, as a result of which he succumbed to the injuries. During this occurrence Khan and Hatam Khan Sial also reached there and witnessed the occurrence. Noora then exhorted Lalkara declaring that he had felt satisfaction and happiness over the murder and the accused ran towards their houses. Early in the morning at about 5 p.m. while apprehending Rai* their sister, Ali Sher etc., took her to the Dhari of the complainant and committed her murder after making her to stand, near the dead body of Yousuf. The motive behind this murder is that accused party had the suspicion that Yousaf son of the complainant had an illicit liaison with Mst. Rani, their sister.

3. The learned counsel for the petitioner has contended that according to the case of the prosecution the petitioner was empty handed and only a Lalkara having been attributed to him which being never regarded as a sufficient overt act to establish abetment so he is entitled to be released on bail. It was also argued that he is 55 years of age and is being roped in alongwith other members of his family. A wide net has been spread to involve as many persons of the accused as possible so that none be left to pursue the case.

4. The application for bail was opposed tooth and nail by the learned counsel for the complainant as well as by the State.

5. I have given my earnest thoughts to the arguments advanced by both sides and have also gone through the record very minutely. I find that all the four co-accused of the petitioner being armed with deadly weapons like guns and hatchets, committed the murders of five persons. So far as Khadim Hussain deceased is concerned he was done to death specially, at the behest of the present petitioner as he being the elder of the co-accused directed them to kill the whole family of the complainant party. The Lalkara allegation is always adjudged in its true perspective taking into consideration the facts and circumstances of each case. 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 is to be seen in every case. Whether the Lalkara allegation is to be regarded as a sufficient overt act to establish abetment is a question which must be decided by the trial Court on appreciation of all facts and evidence. While appreciating the role of Lalkara, drawing of conclusions therefrom in relation to all the circumstances is the function exclusively of the trial Court and cannot be anticipated by this Court while dealing with the bail matter.

6. In this case I find that when three persons had already been done to death by the co-accused of the petitioner it was the petitioner who instigated them to further commit the murders of all the family members of the complainant. This shows the degree of interest in the crime possessed by the petitioner against whom there is an allegation of raising Lalkara. In the given circumstances of this case I do not find any good ground to release the I petitioner on bail at this stage, so the same is dismissed. N.H.Q./N-181/L Bail refused.