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Petition for Special Leave to Appeal No. 107 of 1967, decided on 2nd May 1967.
(On appeal from the judgment and order of High Court of West Pakistan, Lahore, dated the 9th March 1967, in Criminal Miscellaneous No. 826 of 1967).
(a) Criminal Procedure Code (V of 1898), S. 497‑Murder case‑Person shouting lalkara‑Can be guilty of abetment‑Person neither old (55 years no great age) nor alleged to be sick or in firm‑Not entitled to benefit of proviso to S. 497(1)‑Penal Code (XLV of 1860), Ss. 302/149 & 114.
The case in P L D 1966 S C 658 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.
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.
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 a lalkara, is not enough to constitute a reasonable ground for thinking that he has been guilty of abetment of such crime.
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.
Abdul Aziz v. Bashir Ahmad P L D 1966 S C 658 distinguished.
(b) Penal Code (XLV of 1860), S, 114‑Abetment previous to commission of offence‑Mere presence at scene of offence‑. Sufficient overt act to support conviction by application of S. 114 (obiter).
(c) Criminal trial‑Appreciation of evidence and drawing of conclusions there from‑‑Function exclusively of trial Court‑Same cannot be anticipated by superior Court dealing with an ancillary matter, e.g., grant of bail pending trial‑Penal Code (XLV of
1860), S. 302‑Criminal Procedure Code (V of 1898), S. 497.
S. M. Shah Mashhedi, Advocate Supreme Court instructed by Abdul Karim, Attorney for Petitioners.
Respondent not represented.
Date of hearing: 2nd May 1967.
CORNELIUS, C. J.‑
This petition seeks special leave to appeal against an order of the High Court refusing bail to four persons, who have been committed for trial at Sessions on charges under sections 148 and 302/149, P. P. C. Mr. S. M. Shah Mashhedi presses it only on behalf of one of the four, Chiragh Din by name, on the ground that he is alleged to have abetted the act of murder only by shouting a lalkara. Learned counsel refers to a decision of this Court in Abdul Aziz v. Bashir Ahmad (P L D 1966 S C 658), where it was observed that allegations of lalkaras are often made, in such cases, and by themselves are mostly regarded as insufficient proof of abetment.
The High Court distinguished this case on the ground that the person to whom bail was granted by the Supreme Court was an old man who was shown to be suffering from illness, and his case was therefore one that fell within the exceptions specified in section 497, Cr. P. C. The distinction has been rightly drawn. In this case, Chiragh Din is 35 years old. This is no 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 II 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 f at the scene of the crime is a sufficient overt act to support conviction, by the application of section 114, P. P. C. Shout in of a 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 a lalkara, is not enougl3 to constitute a reasonable ground for thinking that lie has been guilty of abetment of such crime. The proposition advanced by learned counsel, in the form of a rule of evidence, cannot he accepted as one of general application. The appreciation on 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.
The petition is accordingly dismissed.
K. B, A. Petition dismissed.
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