The petitioner seeks bail in case F. I. R. No. 223 dated 20th July, 1982, Police Station, Hafizabad, registered on the statement of Hameed Ahmad, brother of Bashir Ahmad, deceased.
2. The allegations briefly are, that the petitioner armed with a sota accompanied by his real brothers, Faiz and Sardar Ali, armed with gun and Kulhari, respectively, overtook Bashir Ahmad deceased in the fields while he was going to his village. Sardar Ali gave a Kulhari blow on the head of the deceased, as a result of which the deceased fell down. Sardar Ali gave another Kulhari blow on the right side of his head. Whereafter, Faiz fired a shot on the head of the deceased. According to the F. I. R., the petitioner continued raising lalkaras that we have avenged the murder of our brother.
The motive for the occurrence as stated in the F. I. R was that Khaliq, a brother of the petitioner, was murdered in 1971 and that Manzur Ahmad, brother of the deceased, was challaned and convicted.
It has also been stated in the F. I. R. That a month prior to the occurrence, a fight had taken place between the parties, as a result of which cross-- cases under section 307, P. P. C. Were registered, which were under investigation during the days of occurrence.
3. Learned counsel for the petitioner has contended that there is no allegation against the petitioner of having caused any injury to the deceased and that he has been charged of having raised proverbial Lalkara. He has cited Dr. Abdul Salam etc. v. State (1970 P Cr. L'J 1306) and Allah Ditta etc. v. State (1972 P Cr. L J 427). It has also been submitted that Inspector, C. I. A, who was entrusted investigation at one stage, had declared the petitioner to be innocent.
4. Learned counsel for the State/Complainant have argued that it is not a case of Lalkara simpliciter 'because according to the F. I. R. The petitioner along with his other two co-accused had surrounded the deceased before he was done to death by the co-accused of the petitioner. It has been vehemently argued that had the petitioner not assisted his co-accused, the deceased might have escaped, particularly when he was being followed by his own brother. Learned counsel have cited Amir Khan v. State (1970 S.C M R 789). With regard to the submission of the learned counsel for the petitioner that the petitioner had been declared innocent by Inspector, C. I. A. Learned counsel for the State has submitted that in the investigation conducted earlier to the investigation by the C.
I. A. Inspector and in the investigation conducted later, the petitioner was found to have participated in the occurrence.
5. I have considered the contentions of the learned counsel for the parties and have gone through the record. The main ground as it appears to me for rejection of bail by their Lordship of the Supreme Court in the case of Amir Khan v. State was that the petitions had wilfully suppressed the fact of his earlier bail application having been rejected and by not disclosing that fact had succeeded in getting interim bail. It has been observed that no one can get Court's assistance unless he comes to the Court with clean hands.
6. The F.I.R. Does not disclose that the petitioner had raised Lalkara before his cp-accused started inflicting injuries. The words used are :- It apparently shows that the Lalkara was raised after the injuries had been inflicted. It has to be seen whether the Lalkara was the instigating factor or not. There is no allegation that on the Lalkar raised by the petitioner, his co-accused had opened the attack. The other important fact is that the petitioner did not cause any injury to the deceased, nor attempted to cause any, in spite of the fact that he was armed with a dang and was alleged to have encircled the deceased along--with his co-accused. This being the position, it will have to be determined at the trial whether he shared the intention of his co-accused to commit the murder of Bashir Ahmad. In the circumstances, I feel inclined to exercise the discretion in favour of the petitioner. He shall be released on bail provided he furnishes a bail bond in the sum of Rs. 25,000 with two sureties each in the like amount, to the satisfaction of the Assistant Commissioner, Hafizabad.