Through this petition under section 497 of the Cr.P.C., Sher Afzal (petitioner) seeks post-arrest bail in case FIR No.234/2020 dated 20.05.2020 registered under sections 302 & 34 PPC at Police Station Kahuta, District Rawalpindi.
2. The case of prosecution as it gleans from the F.I.R. is to the effect that on 20.05.2020 Seemab Wasif (complainant) along with her husband Wasif Khan Abbasi, Zubair Ahmed Qureshi and Mst. Tahira Abbasi went to the house of her brother-in-law Asim Khan situated in Mauza Sung; that they intended to construct house upon their land and when reached the spot at about 3:20 p.m. for the purpose, Shahid, Sher Afzal, Muhammad Shafique, all armed with pistols emerged on the scene along with Zeenat Bibi; that Sher Afzal exhorted his co-accused to teach a lesson for constructing house on the land; that thereafter Shahid fired five pistol shots which hit Wasif Khan on different parts of his body; that Muhammad Shafique also fired seven successive pistol shots hitting Asim Khan Abbasi at various places of his person; that after the receipt of these injuries both the victims fell at the spot and were kicked by Sher Afzal and Zeenat Bibi; that upon the hue and cry raised by the witnesses, all the assailants decamped from the crime scene; that Wasif Khan took his last breath on way to THQ Hospital Kahuta, whereas Asim Khan died while being shifted to Rawalpindi Hospital. Motive behind the incident was stated in the crime report to be a land dispute.
3. Learned counsel for the petitioner argued that the petitioner is innocent in the case and has falsely been implicated; that admittedly , both the deceased died due to the firearm injurie s inflicted by co-accused; that petitioner is ascribed the role of raising proverbial lalkara during the occurrence and bail is generally granted to such an accused; that since raising of proverbial lalkara is not a sufficient overt act, hence the case of petitioner is of further inquiry , entitling him to the concession of post-arrest bail.
4. On the other hand, learned law officer assisted by learned counsel for the complainant opposed the grant of post-arrest bail to the petitioner on the grounds that not only he is specifically nominated in the crime report but in reference to the role performed by him in the occurrence; that though the petitioner is mainly attributed the role of shouting lalkara but by no stretch it can be termed as proverbial in nature; that the two co-accused, namely , Shahid and Shafique who inflicted fatal firearm injuries to both the deceased, are related to the petitioner as son and brother-in-law (Sala); that in this backdrop, the lalkara so raised by the petitioner is commanding in nature and that since even during investigation petitioner was found fully involved in the crime, hence, he is not entitled to post- arrest bail.
5. Arguments heard. Record perused.
6. It is discernible from the record that the case stands registered for an incident having occurred on 20.05.2020 at about 3:20 p.m. during which two real brothers, namely , Wasif Abbasi and Asim Abbasi lost their lives after the receipt of multiple firearm traumas, stated to have been inflicted by Shahid (PO) and Muhammad Shafique. So far as, Sher Afzal (petitioner) is concerned, he is saddled with the accusation of having exhorted his co-accused to commit the crime. The tale of this unfortunate incident was spontaneously furnished to police within 1 1/4 hour .
7. While pondering upon the material collected during investigation, it is observed that Shahid and Shafique, who are saddled with the accusation of having caused multiple firearm injuries to both the deceased leading to their death, are related with Sher Afzal (petitioner) as son and brother-in-law (Sala) respectively . As per canvassed facts, Shahid inflicted five firearm injuries to Wasif (deceased), whereas Shafique cause d seven similar injuries to Asim (deceased). The most important aspect emerging from the record is to the effect that main accused resorted to attributed aggression upon exhorting of Sher Afzal (petitioner). I am not oblivious of the fact that generally , a person burdened with the allegation of shouting lalkara is granted post-arrest bail but this is not an inflexible rule on the subject. For a just decision of post arrest bail in such cases, the Court has to tentatively see the background in which a perpetrator shouts lalkara, his interest in the crime and the quantum of influence which he can exert upon his co-assailants. From this material, the Court can draw an opinion about the existence or non-existence of reasonable grounds in terms of section 497 (1) Cr.P.C. so as to decide the bail plea of such an accused. If it arises from the record that the accused shouting lalkara had some deep-rooted interest in crime and was in a position to influence his co-accused so as to control his aggression, the concession of post-arrest bail can be withheld from him. It will also not be out of place to mention here that shouting of lalkara by a person in commanding and overwhelming position is a sufficient overt act towards the commission of crime. The expression "lalkara" stands for utterance of words by an overzealous accused at the crime scene, inciting others to commit an of fence.
8. Since the petitioner was in dominance over his co-accused, hence the lalkara raised by him can in no manner be treated as proverbial, rather it can best be defined as commanding in nature. In a case reported as Chiragh Din and others v. The State (PLD 1967 Supreme Court 340), the Hon'ble Supreme Court of Pakistan declined post- arrest bail to an accused attributed role of lalkara with the following observation:- "That question must be decided by the trial Court on an appreciation of all the facts, including 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. There are circumstances in which mere presence at the scene of the crime is a sufficient overt act to support a conviction, by the application of section 114, P.P.C. Shouting of a lalkara may, in such circumstances, have effect as a further overt act of abetment".
In another case reported as Muhammad Ashraf v. The State [1996 MLD 884 (Lahore)] , the post-arrest bail was refused to an accused who was assigned the accusation of shouting lalkara in a murder occurrence with the observation mentioned hereinbelow:- "During the investigation, it has been established on the record that the petitioner is son-in-law of Rehmat co- accused and also the maternal-first cousin of Muhammad Asghar etc. It was held in the case of Noor v. State 1994 PCr.LJ 311 that Lalkara was always to be adjudged in its true perspective taking into consideration the facts and circumstances of each case. It was also held that the degree of interest in the crime possessed by the person who shouted the Lalkara and the part he playe d in the background of the affairs is also to be seen. In the instant case, the petitioner is closely related to the other co-accused, as such, the role attributed to him is not that of simple proverbial Lalkara but amounts to instigation."
Likewise, in the case reported as Akhtar Ijaz Khan Yazdani v. The State (1998 SD 130), the plea of grant of post- arrest bail was rejected with the following observation:- "Petitioner is named in the FIR. He came to the spot alongwith his two sons who were armed and on his lalkara his sons launched attack which resulted in the death of first informant' s son. In such circumstances, even if the petitioner was not armed it would not have any bearing on the merits of his case because his sons were acting under his command."
In accordance with the wisdom expressed in afore-cited case laws, it is observed that despite being in a position of influence, petitioner made no effort to calm down the situation rather ignited it through an overzealous shouting of lalkara, culminating into the death of two real brothers. As a consequence thereof, the plea of petitioner for post- arrest bail merits no acceptance, same is turned down. The petition is accordingly dismissed.