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Criminal Miscellaneous No. 2901/11 of 1979, decided on 2nd September 1979.

---S. 497‑Bail‑Raising of lalkara not equated with proverbial lalkara‑Petitioner shouting 'set fire' and his co‑accused setting same‑Plea of alibi not conclusively ruling out possibility of petitioner's presence on scene of crime at relevant time‑Such plea not accepted by Investigating Officer although recorded state ments of persons swearing affidavits‑Contentions raised for petitioner requiring deeper appraisal of evidence‑Elaborate sifting of evidence, or conclusive finding regarding guilt or innocence of petitioner, held, cannot be given at time of consideration of bail application‑Such finding likely to frustrate functions of trial Court, besides, prejudicing case of prosecution or defence‑Bail refused in circumstances of case‑Penal Code (XLV of 1860), Ss. 302/34 & 452.‑[Alibi].

Khan Khalil‑ur‑Rehman for Petitioner.

Sardar Muhammad Latif Khan Khosa for the Complainant.

Hafiz Mahmood Ali Khan for the State.

The petitioner seeks grant of bail, in a case registered against him and two others, under sections 302/34, 452, P.P.C at Police Station, Civil Lines, Lahore, for causing murder of Mst. Amina, the mother of Zaheer‑ud‑Din complainant.

2. According to the prosecution version, on 26‑7‑1979 at about 8.45 p.m. the complainant alongwith Tariq Naeem, Muhammad Rafi and Muzaffar Hussain was sitting in the lawn of his house, situated in Upper Mall Scheme Lahore, when a car entered the gate and halted. Yaqoob servant of the complainant went ahead and then informed the complainant that some "Nanna" a friend of Arif was calling him. The complainant sent him to the deceased, to enquire about Arif from her. It is alleged that in the meantime, the deceased herself, came near the car to report that Arif was not present at home. It is also alleged that the wit nesses were at once attracted, when they heard the voice of the petitioner asking her to send Arif to him. It is further alleged, that Idrees with another person immediately came out of the car, and sprinkled petrol on her.

3. The petitioner is reported, to have shouted "set fire" whereupon the other fellow kindled the match and set her on fire. The witnesses rushed forward, to save her, but by the time they reached she had been taken in flames. The accused made good their escape and drove away in Car No. LEM 4611. The deceased was taken to Hospital, where the complainant remained engaged attending her during the night. The F. I. R. was lodged on the following morning, viz. 27‑7‑79 at 9‑OS a.m. The motive for the crime, being a family dispute between the daughter of the petitioner and her husband (Muhammad Arif), the son of the accused.

4. Learned counsel for the petitioner contended that the petitioner was only attributed the role of raising "Lalkara" and his presence on the scene of occurrence was not established. According to him, the petitioner was offering "Taravi" prayers in "Jamia Ashrafia" at the relevant time. In support of the plea of alibi he referred to four affidavits attached with this application for bail, sworn by Messrs Kh. Muhammad Azhar, Nazir Ahmad, Mubarik Ali and Dr. Mian Bashir Ahmad Riaz.

It was next contended that there was delay in lodging the F. I. R. and the possibility of false implication of the petitioner cannot be ruled out. It was also submitted that the petitioner being close relative of the deceased was not expected to embark upon the commission of such a heinous crime. Lastly the counsel for the petitioner submitted that the case of the petitioner was covered under the provisions of section 497(2), Cr. P. C. and would entail further enquiry and in that case he was entitled to be released on bail.

5. Learned counsel for the State, assisted by learned counsel for the complainant strenuously opposed this application and submitted that the role of "lalkara" ascribed to the petitioner could not be termed as 'pro verbial'. The petitioner shared common intention, when alongwith other co‑accused came to the scene of occurrence in the same car. Muhammad Idrees accused sprinkled petrol on the deceased lady, but she was set on fire at the direction of the petitioner by the other co‑accused. The 'Lalkara' raised by the petitioner was clear abetment of the commission of the crime. In these circumstances the mere presence of the petitioner on the spot was sufficient overt act, to disentitle the petitioner the con cession of bail. It was next submitted that the delay occurred in lodging the F. I R. had been explained in the F. I. R. The deceased was admit ted in the hospital when she was in precarious state of health, it was but natural for the complainant who was her son to attend to her rather than to report the matter to the Police. Regarding the plea of alibi, pleaded by the petitioner, it was submitted that the distance between the place of occurrence and the "Jamia Ashrafia" where the petitioner is stated to have offered "Taravi" prayers being so short as it would hardly take few minutes to cover the distance by Car. The authenticity of the plea taken was doubtful and affidavits submitted were unreliable. In reply, to the last submission, made by the learned counsel for the petitioner, it was stated that, the petitioner being closely related to the deceased and her son, could not be implicated in a murder case unless there was certainty about his involvement in the crime.

The mere reading of the F. I. R. with particular reference to the par ascribed to the petitioner prima facie, leads one to an impression that the raising of 'lalkara' in this case cannot be equated with 'Proverbial lalkara'. The petitioner is reported to have arrived at the scene of occurrence, with other co‑accused in the same car. He shouted 'set fire' his co‑accused kindled the match and set the lady on fire. She lost her life in extreme state of anguish. Similarly the plea of alibi set up by the petitioner, does not conclusively rule out at this stage, the possibility of his presence on the scene of the crime at the relevant time owing to short distance, which could easily be traversed within few minutes in a car to reach 11arnia Ashrafia from the place of occurrence. Moreover, the Investigating Officer has not accepted this plea so far, although he recorded the statements of those persons who had sworn affidavits. The contentions raised by the learned counsel for the petitioner require deeper appraisal of evidence, to come' to a conclusion, that the prosecution allegations are not true. Neither an elaborate sifting of evidence nor a conclusive finding regarding the guilt or innocence of the accused, can beg given by this Court, at the time of the consideration of bail application, as in either case, it is likely to frustrate the functions of the trial Court, besides prejudicing the case of the prosecution or the defence.

The occurrence in this case has taken place only in the last week of July, 1979. Investigation in this case, is still in progress.

6. I have had the facility of consulting the record and even accord ing to my tentative assessment of the evidence, and without prejudice to the merits of the case, I am not inclined to admit the petitioner to bail at this stage, as there are no reasonable grounds to believe, that he is not guilty of an offence punishable with death pr imprisonment for life. This petition is dismissed.

Bail refused

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