1. NASIM HASAN SHAH, J.--This is a petition for leave to appeal against the order, dated 25-9-1978 passed by the Lahore High Court (in Criminal Miscellaneous No.3525/B of 1978) whereby the respondent No.1 (Amjad Bhatti) was allowed bail.
2. The facts of the case as disclosed in the F.I.R. Are that the occurrence took place near the Fauji Hotel,' opposite Regent Cinema, Jhelum, during the interval of the morning show at about 1-05 p.m.
3. On 24-3-1978. It is alleged that Gulzar Hussain deceased alongwith his companion Waqar Ahmad had gone to see the morning show at Regent Cinema and as they were passing through the row of seats, the feet of Gulzar Hussain deceased hit the feet of Saleem Ahmad, who had come to the cinema alongwith his friend Amjad Bhatti. On this an altercation took place between the deceased and Saleem Ahmad, accused, which was then settled through the good offices of Waqar Ahmad.
4. However, during the interval when Waqar Ahmad and Gulzar Hussain deceased came out of the cinema hall and were going to the Fauji Hotel for taking some refreshment, Saleem Ahmad accompanied by Amjad Bhatti came after them. Amjad Bhatti gave a Lalkara to Gulzar Hussain, deceased that he would be taught lesson for quarrelling with them. Immediately thereafter Saleem Ahmad accused gave a number of injuries to Gulzar Hussain deceased with a knife upon which Gulzar Hussain deceased dropped down after moving a few paces. Waqar Ahmad raised an alarm whereupon Muhammad Saleem turned towards Waqar Ahmad to injure him but the blow was warded off by him by throwing a chair at him. Both the accused ran away but were pursued by Waqar Ahmad and others and finally captured. A case was registered against Saleem Ahmad and Amjad Bhatti respondents herein under section 302 read with section 34, P.P.C.
5. The respondent No.1 herein Amjad Bhatti applied for bail before the Sessions Court mainly on the ground of age, (only 13 years). To verify the correctness of this plea, the learned Sessions Judge sent for and scrutinized the record of Government Islamia High School which was produced by the Headmaster of the School and also of the Government Primary School Sarai Alamgir, District Gujrat, produced by a teacher of that school. Herein the original application regarding the admission of the respondent No.1 was discovered which was entered at serial No.3277 and showed that the date of birth of respondent was 5-5-1961. The application also appeared to have been signed by the father of Amjad Bhatti. The Headmaster, Government Primary School, however, while issuing the school leaving certificate for being produced in the Sessions Court, gave a copy of the entries appearing at serial No.4660 of the admission/withdrawal register in respect of Wajid Mahmood Bhatti. The name of the student was changed from Wajid Mahmood Bhatti to Amjad Mahmood Bhatti while all the other entries were kept intact. On discovery of this strategem the Judge observed that the respondent was relying on a false certificate which was concocted with the assistance of the Headmaster of the Government Primary School, Sarai Alamgir while the correct entries appearing in the records of both the schools established that that date of birth of the respondent was 5-5-1961. Hence the ground for release of the respondent on account of tender age collapsed as he was found to be more than 16 years of age. Nevertheless, bail was then pressed on the ground that the respondent herein had no previous enmity with the deceased; that there was no conspiracy between the accused and the respondent herein and the words uttered by him that they would teach Gulzar Hussain a lesson for having picked up a quarrel with them in cinema hall, was a sort of a Lalkara and that in such circumstances, the respondent herein could not be said to have shared a common intention with the co-accused of killing the deceased.
6. However, the learned Sessions Judge considering that the respondent had not acted with clean hands rejected the bail application by his order, dated 3-6-1978.
7. The respondent herein then moved the High Court for grant of bail on the same grounds as urged before the Sessions Judge but this petition too was disallowed on 17-7-1978. The learned Judge in the High Court observed that the real age of the respondent herein was 16-17 years but a factually untrue document was being canvassed and incorrect averments being made by his counsel as to his age in order to secure bail. The respondent indeed having come to the Court with unclean hands was not entitled on that account to have his petition heard. It was also observed that if he had prefaced his petition with an apology as to what happened before the Sessions Court he might then have been forgiven. But since this was not done and he was pursuing the same line he adopted before the Sessions Court, bail could not be granted in view of the dictum in Muhammad Farooq v. State PLD 1963 Lah. 443 which lays down that where a petitioner comes to the Court of Sessions Judge with unclean hands, bail should not be granted to him-The learned Sessions Judge accordingly refused to consider his petition any further and dismissed it on that short ground.
8. However, he proceeded to observe that since extensive arguments on the question of Lalkara had been addressed to him, he would hold on this point that in the instant question whether the respondent herein had a common intention with Saleem Ahmad, his co-accused to murder the deceased, was a matter which was open to enquiry and it could not be said merely on the basis of the F.I.R. Alone that he shared a common intention to kill the deceased.
9. After the dismissal of this application. The respondent submitted another bail application (Criminal Miscellaneous No.3525/B of 1978) before the Lahore High Court which was prefaced with an apology as regards the previous conduct of the respondent herein namely, pursuing the earlier application on the basis of School leaving certificate which was false and based on tampered record, and prayed for bail on the other ground. The learned Judge thereupon proceeded to hear the petition on merits and observed that as already held by him in his previous order dated 17-7- 1978, the question whether the respondent herein had a common intention with Saleem Ahmad, co-accused to murder the deceased was a matter which was open to further inquiry and that it could not be said merely on the basis of the F.I.R. Alone that he shared a common intention to kill the deceased. Accordingly, the Judge accepted the bail application of the respondent by his order, dated 25-9-1978. This petition for leave to appeal is directed against the aforesaid order.
10. Ch. Muhammad Abdul Wahid, learned counsel for the petitioner-complainant, has submitted that the High Court should not, in the circumstances, have accepted the apology of the respondent as he, had not approached the Courts with clean hands. We do not see much force in this submission.
11. This matter lay entirely in the discretion of the High Court and if the Court was inclined to accept the apology and to proceed to determine the case onthe merits no exception can be taken to the course adopted by the High Court. Considering that the respondent had no previous enmity with the deceased; that he was unarmed and only a Lalkara was attributed to him; the view taken that the question that he shared a common intention to kill the deceased, was open to further inquiry, cannot be held to be perverse or arbitrary.
12. The upshot is that this petition must fail and is dismissed hereby.