HAFEEZULLAH KHAN vs STATE and others
This is a criminal petition filed by Hafeezullah Khan seeking post-arrest bail in a case registered under sections 302, 324, 148, and 149 of the Pakistan Penal Code 1860 vide F.I.R. No. 769 dated 6-9-1998 at Police Station City, Bannu. The core legal question involved is whether an accused person to whom a proverbial 'Lalkara' (incitement to shoot) has been attributed, without making active use of his weapon despite being armed, is entitled to post-arrest bail in a murder and attempted murder case involving background enmity. The Peshawar High Court accepted the petition and held that given the close relation of the parties, the background of enmity, and the role of 'Lalkara' ascribed to the petitioner without actual use of his weapon, his case warranted further inquiry under Section 497(2) of the Code of Criminal Procedure 1898. The court laid down the principle that the true import of 'Lalkara' in cases involving related parties and previous enmity is to be determined at trial, making out a case for grant of bail.
- Is an accused person assigned a role of 'Lalkara' entitled to post-arrest bail when no active use of weapon is attributed?
- Does a background of enmity between related parties justify the grant of bail pending trial for offences under sections 302 and 324 of the Pakistan Penal Code 1860?
- Section 302, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
' Petitioner Hafeezullah Khan was refused bail in case under section 302/324/148/149, P.P.C.
Registered vide F.I.R. No,769, dated 6-9-1998 at Police Station City, Bannu by the Courts below and now he has approached this Court for his release on bail.
2. Mst. Basjana while lying in injured condition in Emergency Room of Civil Hospital, Bannu, on 6-9- 1998 at about 8-30 a.m., made report to the effect that on the eventful morning, she alongwith her mother Mst. Mushtari and her brother Shafqatullah were present in the house when petitioner Hafeezullah Khan alongwith his brothers Sanaullah and Naseebullah and sons Waqarullah and Shakirullah came duly armed with pistols. The petitioner commanded the co-accused to shoot, whereupon four accused started firing at them. She was hit but her mother and brother were lucky to escape. The motive is stated to be a dispute over property.
3. Learned counsel for the petitioner argued that his client has been simply charged with "Lalkara" and in view of the decisions of the Supreme Court of Pakistan in cases of "Amanat Ali v. The State"
1993 SCM R 1993, "Muhammad Haroon v. The State" (1994 SCM R 2161) and "Rafique Khan v. The State"
1995 SCM R 343, he is entitled to bail. The learned counsel for the complainant party submitted that the case in hand was not of customary "Lalkara", as the parties are. Closely related and chances of false implication are not there.
4. The arguments advanced by the learned counsel for the petitioner have definite edge over the contentions raised by the learned counsel for the complainant party. Both the parties are closely related to each other and similarity of action or re-action can be there. If one party can resort to violence, the other may involve head of the opposite group. This observation is not meant to support or mar case of either party. The true import of "Lalkara" is to be determined at the trial.
Although, petitioner Hafeezullah is alleged to be carrying pistol yet he made no use of it and proverbial role of raising 'Lalkara' has been ascribed to him.
5. Keeping in view the role attributed to the petitioner in view of the background of enmity, I admit the petitioner to bail, provided he furnishes bail bond in the sum of Rs,2,00,000 (Rupees two lacs) with two sureties, each in the like amount to the satisfaction of the Illaqa/Duty Magistrate who shall see that the sureties are respectable, local and men of sufficient means.