2012 PLP 1273 (SCMR)

ASIF SAEED KHAN KHOSA, J.

Through this petition the petitioner-complainant has sought leave to appeal against the order dated 13-3-2012 passed by a learned Judge-in-Chamber of the Islamabad High Court, Islamabad in Criminal Miscellaneous No.101-B of 2012 whereby post-arrest bail had been allowed to respondent No.1 in case F.I.R. No.395 registered at Police Station Industrial Area, Islamabad on 21-10-2010 in respect of offences under sections 302/324/148/149/411, P.P.C.

2. We have heard the learned counsel for the parties and have gone through the relevant record of this case with their assistance.

3. It is not disputed that respondent No.1 had not been nominated in the F.I.R. in any capacity whatsoever and his name had surfaced in this case for the first time through a supplementary statement made by the complainant and also through some statements made by the eye-witnesses under section 161, Cr.P.C. It may be relevant to mention here that the petitioner-complainant was not an eye-witness of the alleged occurrence. It is not disputed that respondent No.1 was not connected with the motive set up in the F.I.R. and it has also been conceded before us that in the C.C.T.V. footage available regarding the occurrence in issue the respondent was not visible as one of the assailants present at the scene of the crime at the relevant time. Upon assessment of the material available on the record the learned Judge-in-Chamber of the Islamabad High Court, Islamabad had concluded that the case against respondent No.1 called for further inquiry into his guilt entitling him to be admitted to post-arrest bail. It has vehemently been argued by the learned counsel for the petitioner that respondent No. 1 had remained a fugitive from law and had been declared a Proclaimed Offender and, thus, he was not entitled to be extended the concession of bail. We have, however, remained unable to subscribe to this submission of the learned counsel for the petitioner because the law is by now settled that in a case calling for further inquiry into the guilt of an accused person bail is to be allowed to him as a matter of right and not by way of grace or concession. Bail is sometimes refused to an accused person on account of his absconsion but such refusal of bail proceeds primarily upon a question of propriety. It goes without saying that whenever a question of propriety is confronted with a question of right the latter must prevail. A reference in this respect may be made to the cases of Ibrahim v. Hayat Gul and others (1985 SCMR 382), Muhammad Sadiq v. Sadiq and others (PLD 1985 SC 182) and Qamar alias Mitho v. The State and others (PLD 2012 SC 222). It is admitted at all hands that the investigation of the present case has already been finalized and a Challan has been submitted and, thus, physical custody of respondent No.1 is not required at this stage for the purposes of investigation. It is trite that considerations for grant of bail and those for its cancellation are entirely different. No allegation has been levelled before us nor any material has been brought on the record of the present petition regarding any misuse or abuse of the concession of bail by respondent No.1. In these circumstances no occasion has been found by us for interference with the lawful exercise of jurisdiction and discretion in the matter of bail by the Islamabad High Court, Islamabad. This petition is, therefore, dismissed. M.W.A./I-3/SC Petition dismissed.