' On 2nd September, 1998 at about 2145 hours an F.I.R. Was lodged by complainant Salamat Khokhar with Police Station P.I.B. Colony, Karachi East, alleging that on that day at about 1130 hours the present applicant alongwith his uncle Iqbal Lala came at the shop of complainant where he alongwith his maternal nephew was sitting. It is further alleged that the present applicant pointed out towards maternal nephew of the complainant, Boota Masih (injured) that he is the same person with whom he had a quarrel earlier. It is further alleged in the F.I.R. That the present applicant stated while pointing out to the injured that the (co-accused lqbal Lala) should not spare him and he should be killed. Upon such instigation, Iqbal Lala opened fire and injured Boota Masih by firing at the right side of his chest. It is further alleged that two other persons, Hudson and Rasheed Masih, who were standing in the street near the shop of the complainant, also received bullet injures in their legs.
2. Police have filed challan against both the accused and now trials is pending before the IXth Additional Sessions Judge, Karachi East- Bail application filed by the present applicant was rejected vide order dated 2-10-1998 whereafter the instant bail application has been moved. I have heard Mr. S. Waqar Hussain Naqvi, Advocate for the applicant, and Mr. Ismail Memon, Advocate for the State. It was argued by Mr. S. Waqar Hussain Naqvi that the only allegation against the present applicant is that of 'Lalkara' and that no other role has been assigned to him in the F.I.R. On the other hand, it .Was argued by Mr. Ismail Memon that it is not 'Lalkara' but the words uttered by the present applicant amount to provocation and which brings the case of present applicant within the scope of section 34, P.P.C. Mr. S. Waqar Hussain Naqvi has referred to the following cases:-
(i) Muhammad Anwar and another v. The State 1989 PCr.LJ 1554;
(ii) Muhammad Hayat v. The State 1989 PCr.LJ 490;
(iii) Amanat Ali v. The State 1993 SCM R 1992; (iii) Muhammad Din v. The State 1994 PCr.LJ 1081;
(iv) Akbar Ali and others v. The State 1994 M LD 1291; (vi) Muhammad Din v. The State 1994 M LD 1296;
3. The scrutiny of abovementioncd cases indicates that the ground which prevailed before the superior Courts was that the only allegation against the applicants in those cases was that of 'Lalkara' and that no other specific role was assigned to them. In the last cited case of Muhammad Din (ibid), the petitioner accompanied the main accused where the role attributed to the petitioner was one of 'Proverbial Lalkara'. Upon consideration of such fact bail was allowed to the accused in an offence arising out of offences under section 302/148/149, P.P.C. In the case of Amanat Ali (supra) bail was granted by a Full Bench of Hon'ble Supreme Court on the ground that only a 'Lalkara' was attributed to the petitioner. However, the facts of the case have not been mentioned in detail in order to ascertain as to what were the allegations in F.I.R. Of that case. Even in the case of Rafi Khan v. The State (1995 SCM R 343), bail was granted to an accused involved in offences under sections 302 and 324, P.P.0 on the ground that the only active role attributed to him was that of raising a 'Lalkara'.
4. Earlier, in the case of Abdul Aziz v. Bashir Ahmed and another (PLD 1966 SC 653) the question of grant of bail in respect of shouting of Lalkara was considered by a Full Bench of the Honourable Supreme Court, in which the allegation against the appellant was that of shouting of Lalkara, during the commission of the alleged offence and he was granted bail by the Additional Sessions Judge, but same was cancelled by the Lahore High Court on application by the complainant. In that case, the murder was committed by violence but against the said appellant there was charge of uttering Lalkara. It was observed by the Full Bench of the Honouable Supreme Court that such allegations are very frequently made by the prosecution and that the Courts are found to reject them with almost equal frequency, in the absence of anything to indicate an earlier conspiracy.
That judgment was authored by the former Chief Justice of this country, A.R. Cornelius, C.J. (as his lordship then was), This view was followed by another Division Bench of the Hon'ble Supreme Court in the case of Khan Badshah v. The State (1978 SCM R 77). However, the rule laid down in the case of Abdul Aziz (supra) was also considered by another Bench of Supreme Court in the case Chirag Din and others v. The State (PLD 1967 SC 340), where the petitioners were involved in the offences arising under section 302/149, P.P.C. Again the judgment was authored by the former Chief Justice A.R. Cornelius (as his lordship then was), when following distinctions were observed, which reads as follows:-- ...In this case, Chiragh Din is 55 years old. That is not great age. He is not alleged to be sick or infirm.
The precedent case is not to be read as laying down that a Lalkara is never to be regarded as a sufficient overt act, if proved, to establish abetment. 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 Lalkara may, in such circumstances, have effect as a further overt act of abetment.
' It is not possible, without a full appreciation of the evidence relating to the background of a crime and its actual commission, to say that proof of a person shouting 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 conclusions therefrom in relation to all the circumstances is the function exclusively of the trial Court. It cannot be anticipated by a Superior Court dealing with an ancillary matter, e.g., the grant of bail, pending trial."
5. Learned counsel for the State has relied upon the definition of "provocation" and "provoke" as given in the Black's Law Dictionary (VIth Edition 1990 at page 1225), which defines an act of provocation inter alia to be an act of inciting to do a particular deed with the intention to cause some illegal act against or in relation to the person offering such provocation. However, it is not relevant in the present context. In the instant case, there is no element of provocation on the part of the injured. The act alleged by the prosecution against the present application is that of section 34, P.P.C., which makes liable all such accused person involved in a criminal act which is performed with the common intention of all. Section 34 of the Pakistan Penal Code reads as follows:-- "34. Acts done by several persons in furtherance of common intention.--When a criminal act is done by several persons, in furtherance of the common intention of all, each of such person is liable for that act in the same manner as if it were done by him alone. "
6. In the instant case, the allegations against the present applicant/accused are that there was an earlier altercation between the present accused and the injured whereafter at a subsequent stage he accompanied with Iqbal Lala, who was carrying a gun, when they appeared at the shop of complainant, the present accused pointed out towards the injured and informed Iqbal Lala, who is his paternal, uncle that injured is the same person with whom he had an earlier altercation and that he should not be spared. It was after utterings of such words that co-accused Iqbal Lala fired and caused grievous injuries to the injured. The impact of such firing has been mentioned in the F.I.R. Which indicates that the two other persons standing in the street near the said shop also received bullet injuries. In such circumstances, to say that there is only allegation of Lakara against the present applicant and that no other overt act is attributed to the present accused is not correct, as there are other material placed by the prosecution before this Court which tentatively show that it may be a case of abetment as defined under section 107, P.P.0 or of common intention of declined in section 34, P.P.C. In such circumstances, to say that the accused is entitled to the grant of bail as a matter of right on the ground of 'Lalkara' is not sufficient when there is material with the prosecution to show some kind of conspiracy prior to commission of the alleged offence. I am fortified in my view by the case of Haq Nawaz v. The State (PLJ 1988 Cr.C. 11), where bail was rejected by Mr. Muhammad Munir Khan, J. (as his lordship then was) where the plea of proverbial Lalkara was not accepted and bail was rejected in an offence under section 302/34 on the ground that prima facie, there are reasonable grounds to believe that the petitioner is constructively liable for the alleged offence of murder.
7. As a result of the above discussion, this bail application is dismissed with the direction to the trial Court to expeditiously proceed with the case and to record the statements of complainant and injured person at least within a period of 45 days, after receipt of intimation of this order, whereafter present applicant will be entitled to repeat his bail application.