2012 PLP 1137 (SCMR)

ASIF SAEED KHAN KHOSA, J.

Through this petition Ehsan Ullah petitioner has sought leave to appeal against the order dated 6-3-2012 (wrongly mentioned in the impugned order as 6-3-2011) passed by a learned Judge-in-Chamber of the Lahore High Court, Lahore in Criminal Miscellaneous No.466-B of 2012 whereby pre-arrest bail was refused to the petitioner in case F.I.R. No. 766 registered at Police Station Civil Lines, Gujrat on 29-8-2009 in respect of offences under sections 302/324/427/109/148/149, P.P.C.

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

3. After hearing the learned counsel for the parties and going through the record we have straightaway observed that although the petitioner stands nominated in the F.I.R. yet no specific or particular injury to any person has been attributed to him therein and only a generalized and collective allegation has been levelled against him in the F.I.R. It may be true that the petitioner was a nominated accused person in the criminal case set up as the motive for the present offences but at the same time a possibility cannot safely be ruled out of consideration regarding spreading the net wide by the complainant party in the present criminal case so as to falsely entangle the petitioner on account of his involvement in the case of motive. It is not disputed that nothing had been recovered from file petitioner's possession during the investigation of this case. It is pertinent to mention that the investigating agency had reached at a definite conclusion that the petitioner was not even present at the scene of the crime at the relevant time and as a matter of fact he had provided behind-the-scene abetment to his co-accused for commission of the alleged offences and this is why the petitioner has been recommended for trial only in respect of an offence under section 109, P.P.C. This shows that in the present case the prosecution itself has two versions vis-a-vis the petitioner, first of the complainant party according to which the petitioner was present at the spot and had resorted to firing and second of the investigating agency according to which the petitioner was not present at the spot and he was abetting his co-accused from behind the scene. All these considerations surely render the case against the petitioner one of further inquiry into his guilt.

4. It has vehemently been argued by the learned Additional Prosecutor-General, Punjab appearing for the State as well as the learned counsel for the complainant that the petitioner had remained a Proclaimed Offender for over one year after registration of this case and, thus, he is not entitled to the concession of ball. We have, however, remained unable to subscribe to this submission because it has already been observed by us above that the case against the petitioner calls for further inquiry into his guilt. It is settled law that in a case calling for further inquiry into the guilt of an accused person bail is to be allowed to him as of right and not by way of grace on concession and in such a case mere absconsion of the relevant accused person may not be sufficient to refuse bail to him. A reference in this respect may be made to the cases of Muhammad Sadiq v. Sadiq and others (PLD 1985 SC 182), Ibrahim v. Hayat Gul and others (1985 SCMR 382) and Qamar alias Mitho v. The State and others (PLD 2012 SC 222).

5. For what has been discussed above this petition is converted into an appeal and the same is allowed and, consequently, the petitioner is admitted to bail subject to furnishing bail bond in the sum of Rs.2,00,000 (Rupees two hundred thousand only) with two sureties each in the like amount to the satisfaction of the learned trial Court. M.H./E-1/SC Bail allowed.