MOHAMMAD AZAM KHAN, CJ. --- The captioned appeal has been filed against an order recorded by the Shariat Court on 5.3.2011 in Cri. Revision Petition No, 87/2010.
2. A case under Sections 302/34, APC, was registered at. Police Station Dudyal on 1.6.2010 on a report made by Muhammad Afzal s/o Ch. Abdul Raheem r/o Amb, Tehsil Dudyal, District Mirpur. In the written report he alleged that he was present on a petrol pump at Amb when Master Muhammad Ayub and Abid Hussain came there and told that Sajid Hussain s/o Muhammad Younas r/o Gurha Nawan has purchased two air tickets of England. The price of the tickets has not been received. They are going to receive the same. They asked him to accompany them. He took Muhammad Shafique s/o Muhammad Hashim r/o Amb and Farooq Shahid r/o Onah, who were also present at the petrol pump, alongwith him. They proceeded on two separate vehicles. When they reached near Gurha Nawan near an under-construction house, they saw Sajid Hussain s/o Muhammad Younas, his father Muhammad Younas s/o Rehmatullah and a woman standing there.
Sajid Hussain stopped the vehicle and asked that have they come to receive the money?
Muhammad Ayub, who was standing outside the vehicle, replied that you had sent a message to me to, come and receive the money. In the meantime father of Sajid Hussain and the lady said that they will not go alive. Sajid Hussain fired upon Ayub which hit him at his chest and he fell down.
Abid tried to come out of the vehicle. Sajid also fired upon him. He fell down in the vehicle. Sajid fired 2/3 times at Abid. In the meantime Younas and the lady raised lalkara that all others be done to death. They ran away while escaping their lives. The motive behind the occurrence is a dispute over the piece of land. After being arrested Muhammad Younas, accused respondent, and Mst.
Moni filed bail applications in the Additional District Criminal Court Dudyal. The Trial Court dismissed the application on 13.11.2010. The accused respondent, herein, filed a revision petition in the Shariat Court against the said order. A learned single Judge in the Shariat Court through the impugned judgment dated 5.3.2011 accepted the revision petition and released the accused respondent on bail, hence this appeal.
3. Mr. Muzaffar Ali Zaffar, Additional Advocate-General, argued that the judgment of the Shariat Court is against law and is not maintainable. The accused is nominated in the FIR, which was promptly lodged soon after the occurrence. There are three eye-witnesses of the occurrence who fully support the prosecution version. The statements of two witnesses have been recorded in the Trial Court and the witnesses have implicated the accused-respondent in the case. He submitted that Sajid, accused, who fired upon the two deceased, came from England with his wife for the first time. He had no direct motive in murdering the deceased. It is the present accused-respondent who had a motive to murder the deceased because he had litigation over the land with the deceased. Due to this motive he wanted to murder them. He instigated his son and raised lalkara for doing away the lives of two persons. It is not a mere proverbial lalkara, rather it is a command.
The learned Additional Advocate-General referred to and relied upon the case reported as Noora vs, the State [1994 P.Cr.L.J. 3111. The learned Additional Advocate-General laid great stress on the point that two innocent persons have been murdered. The Shariat Court released the accused- respondent on bail on the ground of advance age and ill health. There is no proof on the record to ascertain the ill-health or advance age of the accused. The learned Additional Advocate-General further argued that the accused-respondent is threatening the complainant party that they should not pursue the case, otherwise he will kill them. The complainant party has moved three applications in this respect in the Trial Court for cancellation of bail on the ground that the accused is misusing the concession of bail.
4. While controverting the arguments of the learned Additional Advocate-General, Mr. Khalid Rasheed Chaudhary, advocate, counsel for the accused-respondent, argued that the judgment of the Shariat Court is perfectly legal. The accused-respondent is an old man of 78 years of age. He is a third degree patient of diabetics, who is unable to walk and due to his bad health, the Trial Court has exempted him from appearing personally in the Trial Court. The fact of ailment is proved from the record.
5. We have heard the learned counsel for the parties and perused the record. The occurrence took place at 8:00 am and the report was promptly lodged at 9:00 am. The accused-respondent is nominated in the FIR. Three eye-witnesses are nominated in the FIR. The allegation against the accused-respondent in the FIR is that when Sajid asked Ayub that if he (the complainant) or Abid will receive the amount; the accused-respondent and the lady asked that they will not go alive.
There is a further allegation that when Sajid had already fired upon Ayub and Abid, thereafter Younas and the lady raised lalkara that the other persons will not go alive. There is no overt act attributed towards the accused-respondent. The case referred to and relied upon by the learned Additional Advocate-General, i,e. Noora vs. the State [1994 P.Cr.L.J. 311], was a case under Sections 302, 148 and 149, PC. The appellant was a senior member of the family. It was alleged that the accused and the co-accused armed with deadly weapons like guns and hatchets, committed murder of five persons. A member of the family and the appellant in the case kept on raising lalkara, that no one of the whole family shall be spared to go alive and particularly one of the deceased Khadim Hussain was done to death on his behest. The Court in the particular circumstances of the case reached to the conclusion that it was not a mere proverbial lalkara. The part played by the appellant in the case was important and murder was committed on his behest.
The bail was refused. It was observed as under:- ''....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 murder s 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 the case I do not find any good ground to release the petitioner on bail at this stage, so the same is dismissed."
6. Lalkara assumes importance in a criminal case, moreso at bail stage if the Court is of the opinion that in the given circumstances, unless such lalkara was raised, the rest of the accused couldn't have fired. It would be an active role if the, two sides having confronted each other and one of the participants asks his co-participants to resort to violence i,e. use of weapons. Without lalkara occurrence could not have been resulted in such an end. Such type of lalkara can be termed as command and not merely proverbial lalkara. No hard and fast rule regarding the effect of latkara for the purpose of bail can be determined and the significance, importance and implication of lalkara is to be laid down with reference to the context in which the same is uttered. The chain of facts and circumstances has to be viewed and analyzed. We may observe here that in the FIR the only allegation of lalkara to do away with the other companions of the deceased has been leveled against the accused-respondent and no other active role has been attributed to him, therefore, the allegation of lalkara for the purpose of bail would fall within the scope of proverbial lalkara and would make a case of further probe. This Court in a case reported as Muhammad Ameen & another vs. Muhammad Yaseen & another [2004 SCR 369] observed as under:- "6. We have considered the respective arguments of the learned counsel for the parties and gone through the record of the case. The case of the prosecution against the accused-respondent is that he raised-`lalkara' and directed his brother, Razzaq, main culprit, to fire upon the complainant party. Therefore he is vicariously liable for the act of co-accused, Razzaq, which result in the death of Muhammad Jahangir, deceased. It is admitted to the prosecution that the accused-respondent was empty-handed at the time of alleged occurrence. He is blamed for merely raising of `lalkara' and instigating the co-accused; Razzaq, to fire at the complainant party. In our view the true import of 'lalkara' shall be ascertained after recording the evidence of the prosecution:It will be too early for any Court to hold the accused-respondent vicariously liable for the act of co-accused, Razzaq. Thus, presently the case of accused-respondent is one of further inquiry. Therefore, in our view no error was committed by the Trial Court while allowing bail to the accused-respondent."
In the case reported as Mukhtar Hussain & another vs. The State & another [2005 SCR 29] this Court observed as under:- "9.The role attributed to Sardar Ali and Muhammad Asif is distinguishable from the rest of the accused persons. According to the case of prosecution the accused Sardar All alongwith one Arshad Hussain (not before us), was sitting in a Corolla Car No, ID-3743, Model 1982. He and. Arshad Hussain were raising lalkara. It is not the case of prosecution that Sardar Ali (whose case is before us) actually stepped down from Car or took any active part in the incident in which the brother of complainant Zaheer Ahmed was killed and Sagheer Ahmed, complainant, sustained injuries. About Muhammad Asif it is said that accused Mukhtar Hussain, Waqar Hsusain and Tanveer Hussain left their Suzuki on the place of occurrence and they ran away through motorcycle which belonged to this accused person. The involvement of Sardar Ali and Muhammad Asif in- the incident needs further inquiry for making them vicariously liable. It will be too early for us to express such opinion against them."
Similarly in the case reported as The State vs. Fazal Elahi [PLJ 1982 SC (AJ&K) 82], it has been observed as under:- "6.After hearing the learned counsel for the parties we are of the view that circumstances do not warrant interference with the discretion exercised by the High Court in declining to cancel bail to Fazal Ellahi; respondent-accused, allowed by the District Criminal Court. Our reasons are:-
(a) No overt act in the transaction of murder is attributed to Fazal Ellahi accused;
(b) It still requires determination as to whether the instigation or 'Lalkara' for the murder attributed to Fazal Ellahi accused preceded the occurrence; and
(c) Fazal Ellahi accused is an old man of round about seventy years of age and the only part of instigation ascribed to him is still to be proved.
7. For the above stated reasons our view is that the discretion in the case of Fazal Ellahi accused has been exercised by the subordinate Courts, in a legal way and needs no interference."
7. The statements of two witnesses have already been recorded in the Trial Court. It is not the case of the prosecution that the respondents wanted to do away with the life of the deceased. The allegation is that Abid Hussain is engaged in travel business. The tickets were purchased from him and he had to receive the money. Abid alongwith Afzal and three others went to receive the price of tickets. Normally it is the practice that whoever purchases the tickets, makes the payment in the office wherefrom the tickets are purchased. In the FIR it is not clear that why Abid sought the help of other persons when he has to receive the price of the tickets from the accused. We refrain to comment on it. It may affect the case of the either party.
8. The Shariat Court has released the respondent on bail on the ground of advance age and ill health. Section 497, Cr.P.C., postulates that a person accused of a non-bailable offence, shall not be released on bail if there appears reasonable ground to believe that he has been guilty of offence punishable with the sentence of transportation for life or an imprisonment of 10 years under the proviso to Section 497, Cr.P.C., any person under the age of sixteen years or any woman or sick or infirm person can be released on bail by the Court. The Shariat Court has released the accused-respondent, on bail on the ground of advance age and ill-health, The accused- respondent, who is present in the Court, was examined by the Court. From appearance he looks to be a person. of advance age and feels difficulty in walking. It is also on the record that the Trial Court has exempted him from personal appearance on the ground of ill-health. According to the counsel for the respondent he is a diabetic patient of third degree. On the ground of ill-health and advance age his case falls in the proviso to Section 497, Cr.P.C. In the case reported as Sakhi Muhammad vs. The State [1973 P.Cr.L.J. 397 ], it was observed as under:- "4. The petitioner is present in Court and I notice that he is indeed a very old man and his age could be anywhere between 68 to 70 yeaRs, Although according to the medical report he does not suffer from any ailment of the heart and has not been found to be clinically ill, yet we all know that' old age itself brings infirmity and senility with it. .1 have carefully considered the above-mentioned contentions of the learned counsel for the petitioner. I do not want to discuss them and express any view about their being forceful or otherwise, because that may be considered an, expression of opinion with regard to the merits of the.case."
In another case reported as Abdul Jabbar & another vs. The State [1977 SCM R 50] it was observed as under:- "....However, the case of Abdus Sattar is on a different footing for he is an old man of 70 years and there is also the additional reason that it was his son Abdul Jabbar who had caused the fatal blow.
His case would be covered by the proviso to sub-section (1) of section 497, Cr.P.C."
Similarly in the case reported as The State vs. Matloob Hussain Shah [PLJ 1983 SC (AJ&K) 77], it was observed as under:- " ...... ...Besides; the respondent is an old, man of 65 years and this is also an additional reason for his bail because, in our view, his case would be covered by the proviso of sub-section (1) of Section 497, Cr.P.C. The respondent, as said earlier, is only charged with facilitating the murder of the deceased. This question, therefore, requires further inquiry and the respondent, in our view, is entitled to bail."
9. The Shariat Court has exercised discretion in a legal fashion and in accordance with the rules governing bail matters.
The result of the above discussion is that finding no force in this appeal, it is hereby dismissed.