1. ' This application was filed by two applicants, namely, Ghulam Nabi and Ali Nawaz, who alongwith main accused Khair Muhammad, are involved in a case under section 302/34, P.P.C. I had heard the arguments of Mr. Aminuddin Shah, learned counsel for the applicants and Mr. Zawar Hussain Jafferi, learned A.A.G. For the State, and on conclusion of the arguments on 21-10-1987, the bail application was dismissed. Reasons for dismissal of this bail application are given hereunder.
2. ' The facts are given in reasonable detail in the order dated 5-3-1987 of the learned In charge Sessions Judge, Shikarpur whereby the bail application moved before the trial Court was dismissed. Briefly, the case of the prosecution is that main accused Khair Muhammad had declared Gul Bahar Labano, son-in-law of complainant's brother Gul Muhammad, Karo with his wife and he had divorced her and later on the complainant, Mithal Labano, had approached Khair Muhammad for Faisla but it was refused and, on the night of the incident at about 10-45 p.m., the three accused i,e, Khair Muhammad and the two applicants, entered the premises through a window where complainant, deceased Imam Bux, Allahrakhio and Moula Bux were sitting and at that time Khair Muhammad and applicant Ghulitm Nabi were armed with guns and applicant Ali Nawaz was armed with a hatchet. According to the prosecution case, deceased Imam Bux resembled alleged Karo Gul Bahar by face and, therefore, thinking deceased Imam Bux to be Gul Bahar, Khair Muhammad fired at Imam Bux who was sitting on a cot after saying that he was a Karo and could not be spared. Imam Bux died on the spot. After the shooting the two applicants 'gave Hakal to us that we have no concern and we have murdered Karo'. It is further stated in the F.I.R that later on the three accused on seeing that deceased Imam Bux had denied, went away after raising slogans.
3. ' Mr. Aminuddin Shah, learned counsel for the applicants submitted that the bail application had been moved by the two applicants who had not killed the deceased and even otherwise no overt act has been attributed to them. It was also contended by learned counsel that the prosecution case is false. Mr. Zawar Hussain Jafferi learned A.A.-G. Opposed the bail application.
4. ' As regards the falsity of the case, I do not want to make any detailed comments on the evidence available with the prosecution at this stage except to observe that there are several eye-witnesses of the incident and a motive has also been advanced by the prosecution. In the facts of this case, I was not inclined to grant bail on the ground that "prima facie the case of the prosecution is false and that this was either an unseen crime or that the eye-witnesses were not present at the time the killing had taken place.
5. The main contention of Mr. Aminuddin Shah, learned counsel for the applicants, however, was that the only part attributed to the two applicants is that they had raised Lalkara immediately after the deceased had been killed by the main accused Khair Muhammad and while leaving the scene of the incident, they had raised slogans. In support of his contention that in the situation where there was only allegation of raising a Lalkara and then slogans and that also after the murder had been committed by main accused Khair Muhammad, a case for bail was made out. Mr. Aminduddin Shah relied upon the following reported decisions:-
(i) Tanveer Hussain v. State 1985 P Cr. L J 266.
6. ' In this decision a learned Single Judge of this Court had observed that only Lalkaara had been attributed to one of the accused and that was not sufficient to saddle him with any liability of common intention.
(ii) Abdul Ghani v. Miral 1985 SCMR 2018.
7. ' I have gone through this decision but I find that it is not relevant to the contention raised by learned counsel.
(iii) Gulsher v. State 1986 SCMR 1862.
8. ' This is a very short decision of the Hon'ble Supreme Court and in my view this decision does not lay down the principle that an accused who has uttered a Lalkara is entitled to bail.
(iv) Muhammad Amin v. State 1987 SCMR 1522.
9. ' In this decision the Supreme Court did not accept the application for bail made by one of the petitioners who had been ascribed a specific part in the killing in the murder but another petitioner was granted bail on the ground that no specific role is attributed to him in the F.I.R. And his case was at par with Iftikhar Ahmed and Imtiaz who have already been granted pre-arrest bail by the Sessions Court". In my humble view this decision also does not lay down the principle that in case a Lalkara is attributed to an accused, he must be granted bail.
10. ' As observed earlier, Mr. Zawar Hussain Jafferi, learned A.A.-G. Has opposed this bail application. He had cited following decisions of the Supreme Court:-
(a) Fazilat Bibi v. Karam Khan 1986 SCMR 1628.
11. ' This was a petition filed by widow of the deceased against the order of learned Single Judge of the Lahore High Court granting bail to one Karam Khan. The bail was cancelled by the Supreme Court.
12. The decision of the Supreme Court is reproduced here:-
(2) "We have heard the learned counsel for the petitioner and gone through the relevant portion of the evidence on the record. The prosecution version is that there was old hostility between Bashir Ahmed (deceased) and the accused party. Bashir Ahmed was involved in a criminal case for the murder of a member of the accused-respondent party. He had been taken by two police constables, namely Muhammad Saeed and Muhammad Ilyas, for producing him in the Court of Assistant Commissioner, Shakargarh, in connection with his trial. After the hearing he was being transported back in a wagon. When it reached Bus Stop Manzoorpura Plot, where some passengers got down from it, all of a sudden the accused persons including Karam Khan respondent No,1 came in front of the wagon and forced Bashir Ahmed (deceased) and the two Police constables to come out. All the three persons got down from the wagon and the accused-respondents placed guns at the necks of the police guards and snatched away their rifles. Although, Bashir Ahmed was in handcuffs, yet he managed to escape and ran into the house of his father which was situated nearby. The accused pursued him, broke open the house and killed him. The accused were subsequently arrested and applied for grant of bail which was refused to them by the learned Sessions Judge, Sialkot. The High Court, however, granted bail to Karam Khan respondent No,1.
13. ' The main ground for granting bail to the respondent was that the accused are said to have .Come in two batches and that Karam Khan had come in the second batch and the fatal shot was attributed to Zafar Khan accused.
(4) On considering the facts and circumstances of the case and the material on the record we are of the view that the reasoning of the High Court in this case for grant of bail to the respondent is not tenable. Even otherwise, considering the nature of the offence committed by the accused- respondnet as described by the learned Sessions Judge, Sialkot, while refusing bail to the accused, it is an outstanding example of extreme lawlessness in total disregard of the Law Enforcing Agencies. We feel that the respondent in this case did not deserve to be released on bail.
14. ' In view of the above discussion we convert this petition into appeal and allow the same.
15. ' The bail granted to Karam Khan respondent is, therefore, cancelled and he shall be taken into custody forthwith.
(b) Mubarik Shah v. State 1986 SCMR 1681.
16. ' In this case the bail had been refused by the Lahore High Court and the accused filed a petition before the Supreme Court. Earlier the Sessions Judge ad also refused bail to the accused observing that not only the role of issuing lkara was attributed to him but in fact the actual motive was also attributed to im. The High Court dismissing the application for bail observed as follows:- "The whole case of the complainant party is that the petitioner traffics in narcotics and that the other three co-accused are his servants and agents. The fatal Lalkara is attributed to the petitioner, which led to indiscriminate use of fire-arms by the other three co-accused. Without going on the record as having given any finding in the matter, I would only say for the limited purpose of this bail petition, that the petitioner is not entitled to be released on bail"
17. ' Before the Supreme Court, on behalf of the accused/petitioner, the contention raised was that the only role ascribed to the petitioner was the proverbial Lalkara. The Supreme Court rejected the petition for bail observing as follows:- "We have heard the learned counsel at length and find that his submission has been duly taken note of by both the Courts, and a prima facie view of the entire available material has been formed which even to us at this stage, does not appear exceptionable or requiring correction. Hence leave to appeal is refused."
18. ' I may in all humility observe that no hard and fast rule has been laid down by the Supreme Court that where an accused has not taken part in the actual firing or inflicting blows resulting in the death of a victim but has been attributed the role of raising a Lalkara or slogan, the accused is or is not entitle to bail. It depends on the facts of each case as to whether the Lalkara or slogan of instigation attributed to an accused is such so as to raise a presumption of preconcert or common intention with the main accused that actually inflicted the fatal shots or blows. Here I may refer to another recent decision of the Supreme Court in the case of Iqbal v. State reported in 1982 SCMR
84. In this case petitioner was armed with a stick and along with three co-accused who were armed with fire-arm and hatchets, the attack was made against the deceased. THz petitioner did not take part in the killing. He did not use his stick. Deceased was shot dead.By the co-accused.
19. However, after the deceased had been shot dead by the co-accused, the petitioner took out money from the pocket of the decease and then fled away from the spot. The High Court had refused bail to the petitioner. The Supreme Court dismissed the petition for bail observing that from the F.I.R. It appeared that the accused acted in pre-concert and the petitioner w also assigned the active role of having taken out the money from pocket of t deceased after he had been shot dead on the spot.
20. ' From the decision of the Supreme Court reported in 1982 SCMR and other decisions of the Supreme Court it follows, as observed earlier, that hard and fast rule has been laid down in relation to an accused who is n assigned an active role in the actual killing of the deceased. As observed earlier, depends on the facts of each case whether in such a situation the applicant can said to have acted in preconcert with co-accused who actually killed or murder the victim. On a set of facts, at bail stage, the Court may take the prima facie vi that on the basis of the Lalkara or some other act it appears that t applicant/accused acted in preconcert with the main accused whereas on another set of facts the Court may arrive at a prima facie view that it is a case of forth inquiry as to whether the applicant who had raised a Lalkara or had done so other act had acted in preconcert with the main accused.
21. ' The prosecution version in the instant case has already been referred in some detail in the earlier part of this order. It may be repeated that accord' to the prosecution case on the night of the incident at about 10-45 p.m. The t applicants along with the main accused Khair Muhammad entered the premix through a window and at that time Khair Muhammad and applicant Ghul Nabi were armed with guns and applicant Ali Nawaz was armed with a hatch Chair Muhammad is alleged to have fired at the deceased after saying that he a Karo and could not be spared and the victim died on the spot and after the shouting the two applicants gave Hakal to the complainant party that they had no concern and that the applicants had murdered the Karo. It is further alleged that later on the three accused including the two applicants after seeing that the deceased had died went away raising slogans. The prosecution version, therefore, shows that the three accused including the two applicants had come armed with deadly weapons late at night. They entered the premises where the complainant party was present through a window. The victim is shot by the main accused. The two applicants are alleged to have given Hakal to the complainant party stating that they had murdered the Karo and then they go way from the scene of incident raising slogans. In these circumstances, it can be said that prima facie the two applicants acted in pre- concert with the main accused in the killing of the victim. The two applicants were, therefore, not entitled to grant of bail.
22. ' For the aforesaid reasons the bail application moved by the two applicants was rejected by the short order passed by me on 21-10-1987 on the conclusion of the arguments.