' On 15th April 19776 at 8.15 p.m. Ashfaq Ahmad lodged first information report at Police Station, Shakargarh, District Sialkot about the murder of his brother-in-law Muhammad Aslam, an Advocate of Shaker-garb, The occurrence in which the said Advocate lost his life took place at 12.15 p.m. In Chowk Chammal. On the forenoon of 15th April 1977, the local lawyers of Shakargarh took out a procession, on which soda water bottles were thrown as a result of which Latif Khan and Idrees Khan Advocates were injured. They went to the Civil Hospital for treatment. Ashfaq Ahmed thereinafter called the 'complainant') went to the hospital to find out as to how they were.
' At about 12-15 p.m. Latif Khan, Idrees Khan Advocate and one Akmal on of Latif Khan were going while Muhammad Asians was at a distance of 3/4 paces from then. Muhammad Aslant cabal owes the complainant and said "let as go to the village". At that time Muhammad Latif and Mansoor Ahmed were also with the complainant and they also joined Muhammad ' Latif Khan and others were at a distance of about 20 katams and were talking to each other. They were proceeding towards the bus-stand. When the party reached Bahawal Road crossing and turned towards the bus-stand, then all of a sudden. Billu (petitioner) armed with a Rota. Abdul Hamad with a 12 bare au v, Abdur Razzaq with a Try and another person whose name the complainant did not know but whose description Was given in the first information report and was carrying a sore appeared from behind the shop of Maulvi Mathalwala The petitioner shouted 'do not spare Aslam today'. Muhammad Allam tried to run away. He was hit by amp then Abdul Hamid fired from a close range. Muhammad Aslant fell down. The unknown person armed with a rata remained standing nearby. The complainant raised alarm on which Ahmed and Muhammad Latif, who were hiding behind the shop, ne to the spot. The accused ran away. The complainant and his considering held Muhammad Asians and while he, was being taken to the boson he expired.
' The motive for the aforesaid occurrence was that on the same day in the morning Muhammad Adam and Abdul Hamid had an altercation about certain matter, as a result of which they abused each other. Abdul Hamid warned Muhammad Arif of serious consequences but the latter never took it moldy. Table stud to the murder of Muhammad Asians 2, The petitioner applied for bail after arrest to the learned Additional Sessions Judge but that was rejected by order dated 30tb June it. Thereafter he applied for bail to this Court.
3. Learned counsel appearing in support of this petition raised 5umbez of points First of all, he took up the point of delay and submitted that the alleged occurrence took place at 12-1S p.m., the first information report was lodged at 8-15 p.m., police station was only at a distance of three furlongs ; the delay had not been explained and as such the possibility of implicating innocent persons cannot be safely ruled out. Reliance in this connection was placed on Muhammad Ashraf Mir v. The State (1).
' The second point urged was that the motive for the alleged Incident was altercation between Abdul Hamid and the deceased which took place in 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 morning incident.
' Learned counsel then contended that the part assigned to the petitioner was that of a mere lalkara no overt act had been attributed to him and in view of the observation made in the case of Muhammad Ashiq v. State (2) learned counsel submitted that the true Import of lalkara could only be assessed after some evidence had been recorded by the trial Court.
' Learned counsel then submitted that 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 finalize the investigation. In such circumstances it is not fair to keep the petitioner behind the bars indefinitely.
' 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.
(1) l$71 P Cr. L J 1307.
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.
3. 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. Bad been made applicable and even if the part assigned to the petitioner was that of nevertheless in view of the dictum of the Supreme Court in the case of Adz v. Bashir Ahmed (I) which was further clarified in v. State (2) the petitioner was not entitled to the concession of bail.
5. 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 Asim v. Muhammad &fail (3) and submitted that in view of the principle laid down in that case about 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 X should state judicial notice of the state of affairs prevailing in those Kay's be the alleged occurrence took place. Those were the days of turmoil provision were being taken out by the political parties the Dec toed an A4 ate 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 this very point at this stage and the answer to this submission is 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 any 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 firearm wound, 7/8' x 7/8', more or less circular in fashion on the right renal angle 1' right to middle with blackening of skin, le' around the wound and charring of the edges of wound the other was an abraded B contusion 1r x r' on the back of inner aspect on the fore-arm above the wrist, caused by a bloat 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 of lalkara. Its significance, importance and implication is to be consider with reference to context in which is uttered. In a particular case, c mere lalkara may be as effective as the fire of a fatal shot ; whereas the other it may simply amount to a shallow slogan lust to show off f I) PLD 1966 SC 638 (2) PLD 67 SC 340
(3) 1977 SC D R.
46. Hence in each case it is a matter of judicial discretion to examine the legal consequences of lalkara.
' In the case of Abdul Ariz v. Basify knead it was observed: ' Abdul Ariz 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 to the background of a crime and its actual commission to say that proof of a person shouting a Ialkara, 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 by a Superior Court dealing with an ancillary matter, e.g., the pant 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 facie of particular cue. Different types of weapons usually show different intention with different consequences.
In the cue of Muhammad Asim v. Muhammad Tufall, 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 Office 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 know how long more it will take to finalize the investigation and I do think for that matter the petitioner should suffer.
10, For the foregoing reasons I am of the view that it is a fit 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 Rs, 50,000 with one surety in the like amount to the satisfaction of the Assistant Commissioner, Sialkot.