P L D 1978 Lahore 670 (PLP)

The second point urged was that the motive for the alleged incident was altercation between Abdul Hamid and the deceased which took place ire the morning. The petitioner did not figure in this nor was there any other evidence either direct or indirect to connect the petitioner with the corning incident. Learned counsel then contended that the part assigned to the petitioner was that of a mere lalkara ; no overt sot had boon attributed to him and ire view of the observation made in the case of Muhammad Ashiq v. State (1971 P Cr. L J 778) foamed counsel submitted that the true import of latkara could only be assessed after some evidence had been recorded by the trial Court. Learned counsel then submitted 641 initially the investigation was conducted by the local police who found the petitioner innocent. Later on, the Crimes Branch took over the investigation which has not yet been completed and it is not known how long will it take to finalise the investigation. In such circumstances it is not fair to steep the petitioner behind the bars is definitely. Learned counsel concluded his submissions by submitting that it is a fit case which falls within the ambit of subsection (2) of section 497 of the code of Criminal Procedure.

4. Learned counsel for the State opposed the grant of ball on the ground that the petitioner had been charged with capital offence, the sentence for which Is either death or life imprisonment.

5. The complainant was represented by a number of lawyers. I have heard all of them one by one. Bail was opposed on the ground that section 34, P. P. C. had been made applicable and even if the part assigned to the petitioner was that of lalkara, nevertheless in view of the dictum of the Supreme Court in the case of Abdul Aziz v. Bashir Ahmad (P L D 1966 S C 658) which was further clarified in Chiragh Din v. State (P L D 1967 S C 340) the petitioner was not entitled to the concession of bail. Learned counsel for the complainant submitted that the fact that the petitioner appeared on scene along with the co-accused, one of whom was carrying a gun and even the others were armed, showed that he was not only fully aware of their intention but also had the common intention. In such circumstances, the absence of any overt act was of no consequence. Learned counsel relied on Muhammad Ashiq v. Muhammad Tufail (1977 S C M R 46) and submitted that in view of the principle laid down in this case about lalkara, this petition deserved to be dismissed.

6. Learned counsel for the State as well as for the complainant with all the emphasis at their command argued that I should take judicial notice of the state of affairs prevailing in those days when the alleged occurrence took place. Those were the days of turmoil g processions were being taken out by the political parties ; the deceased an Advocate was murdered because he did not belong to the political party in power. Before dealing with the merits of the case I would like to dispose o this very point at this stage and the answer to this submission V that in the first information report, especially in the motive part, there is nothing to suggest that the murder of Muhammad Aslam was the outcome of an political rivalry. The prosecution did not even care to mention the incident which led to altercation between Abdul Hamid and Muhammad' Aslam. It was merely a vague allegation that both fell out over something and as such I am not prepared to draw the inference which the learned counsel for the complainant wants me to do. A passing reference was made to what the learned counsel for the complainant described as "subsequent first Information report", but that was not pressed into service seriously. Therefore, that is of not much importance for the decision of this petition.

7. In the first information report the only part attributed to the petitioner is that of lalkara. The deceased had two injuries. One was a Rearm wound, 7/8' x 7/8', more or less circular in fashion on the sigh renal angle 1' right to middle with blackening of skin, 1 around the wound and charting of the edges of wound the other was an abraded contusion 1 x on the back of inner aspect on the fore-arm above the wrist, caused by a blunt weapon. It is not the prosecution case that the stick which the petitioner was alleged to be carrying was ever used.

8. No hard and fast rules can be laid down regarding the effect lalkara. Its significance, importance and implication is to be confide with reference to context in which it is uttered. In a particular case, a mere lalkara may be as effective as the firing of a fatal shot ; Whereas the other it may simply amount to a shallow slogan just to show off Hence in each case it is a matter of judicial discretion to examine the legal consequences of lalkara. In the case of Abdid Azis v. Bashir Ahmad it was observed :- " Abdul Axis was charged only with uttering a lalkara: Such allegations are very frequently made, and Courts are found to reject them with almost equal frequency . Similarly, in Chiragh Din v, State, the Supreme Court held ; "It is not possible, without a fill appreciation of the evidence relating 1o the background of a crime arid its actual commission to say that proof of a person shouting a lalkara, is not enough to constitute a reasonable ground for thinking that he has been guilty of abetment of such crime. The proposition advanced by learned counsel, in the form of a rule of evidence, cannot be accepted as one of general application. The appreciation of evidence and the drawing of conclusion therefrom in relation to all the circumstances is the function exclusively of the trial Court. it cannot be anticipated be a Superior Court dealing with an ancillary matter, e.g., the grant of bail, pending trial.'"

9. I have gone through the above authorities referred to by the learned counsel for the complainant. The principle laid down in these authorities is to be applied with reference to the foots of particular case. Different types of weapons usually show different intention with different consequences. In the case of Mohammad Ashiq v. Muhammad Tufail, lalkara had been attributed to the respondent who was armed with a pistol ; whereas in the Instant case, the petitioner was alleged to be carrying a stick. The investigation has not yet been finalised. I asked the Police Officer as to what was the reason why the investigation had not yet been completed. He could not give any reasonable explanation. It is, therefore, not known how long more it will take to finalise the investigation and I do not think for that matter the petitioner should suffer.

10. For the foregoing reasons I am of the view that it is a fit case which calls for further inquiry and falls within the ambit of subsection (2) of section 497, Cr. P. C. I, therefore, admit the petitioner to bail in the sum of Re. 50,000 with one surety in the like amount to the satisfaction of the Assistant Commissioner, Sialkot. S. A. H. Bail allowed.