2005 PLP 1588 (YLR)

Through this petition Shafqat Abbas petitioner has sought post-arrest bail in case F.I.R. No.258 registered at police station Chenab Nagar, District Jhang on 24-9-2002 for offences under sections 148/302/149/ 109, P.P.C.

2. After hearing the learned counsel for the parties and going through the record it has straightaway been observed that the fire-arm injury attributed to the petitioner in the F.I.R. was in fact found to be an exit wound and the entry wound corresponding to that exit wound has not been attributed to any of the accused persons in this case. Even Dr. Imran Ahmad Khan conducting post-mortem examination of the deceased has already stated before the learned trial Court as P.W.1 that the injury allegedly caused by the petitioner (Injury No.4 in the post-mortem examination report) has its margins everted and, thus the same was an exit wound. In these circumstances prima facie the medical evidence squarely contradicts the allegation levelled against the petitioner in the F.I.R. Apparently the petitioner was not directly connected with the motive set up in the F.I.R. Although a rifle had allegedly been recovered from the petitioner's possession during the investigation of this case yet in the absence of any crime empty having been recovered in this case from the spot the evidentiary value of such a recovery is suspect. For all these reasons the case against the petitioner surely calls for further inquiry into his guilt within the purview of subsection (2) of section 497, Cr.P.C. It may also be relevant to mention here that the petitioner had been arrested in connection with this case on 14-11-2002 and he has already spent about seventeen months in jail but the petitioner's trial is still at its initial stages.

3. It has vehementaly been argued by the learned counsel for the complainant that the petitioner's trial has already commenced and, therefore this Court may not admit the petitioner to bail at such a stage. I have, however, remained unable to subscribe to this submission of the learned counsel for the complainant. It has already been found 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 granted to such an accused person as of right and not by way of grace or concession. Bail is sometimes refused to an accused person upon the consideration of commencement of his trail but such refusal of bail proceeds primarily upon a consideration 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 regard may be made to the case of Muhammad Ismail v. Muhammad Rafique and others (PLD 1989 SC 585).

4. For what has been discussed above this petition is allowed and the petitioner is admitted to bail subject to furnishing bail bond in the sum of Rs.1,00,000 (rupees one hundred thousand only) with one surety in the like amount to the satisfaction of the learned trial Court. H.B.T./S-336/L Bail granted.