2004 P Cr (PLP)

Ghulam Nabi Bhatti for the Complainant. Miss Najma Rashid for the State. Date of hearing: 23rd June, 2003. Through this consolidated order I propose to decide Criminal Miscellaneous No.3377‑B of 2003 filed by Azeem and Kashif alias Kashi petitioners and Criminal Miscellaneous No.3439/B of 2003 filed by Muhammad Rameez petitioner seeking post‑arrest bail in the same criminal case, i.e. case F.I.R. No.23 registered at Police Station Chunian, District Kasur on 22‑1‑2003 for offences under sections 302/460/412/34, P.P.C.

2. After hearing the learned counsel for the parties and going through the record it has been noticed that the occurrence in this case had taken place during the dead of a night and admittedly the petitioners had not been named in the F.I.R. as the perpetrators of the alleged offences. The names of the petitioners had surfaced in this case for the first time through a supplementary statement made by the complainant on 22‑1‑2003 but even according to that supplementary statement the complainant had been told about the names of the petitioners by one Ali Muhammad. The said Ali Muhammad had made a statement before the police maintaining therein that he had seen the petitioners and their co‑accused running away from the spot after the incident. It is not disputed that no test identification parade has been held in this case so as to positively incriminate the petitioners. Even otherwise it is not disputed that the petitioners had not taken any active part in the alleged incident or firing of Liaquat Ali deceased and the petitioners involvement in the alleged dacoity had remained unwitnessed. The articles allegedly recovered from the petitioners' possession during the investigation of this case had never properly been identified by the complainant party to be the articles which had been stolen during the alleged occurrence. A co accused of the petitioners namely Imran son of Muhammad Umar has already been admitted to bail by the learned trial Court and a petition filed by the complainant seeking cancellation of his bail has already been dismissed by this Court vide order, dated 16‑6‑2003 passed in Criminal Miscellaneous No.3460/CB of 2003. On the merits of the case there is not much of a difference between the case of the said co‑accused and that of the petitioners. The investigation of this case has already been finalized and a challan has already been submitted and, thus, physical custody of the petitioner is no longer required at this stage for the purposes of investigation. In these circumstances the case against the petitioners calls for further inquiry into their guilt within the purview of subsection (2) of section 497, Cr.P.C.

3. It has vehemently been argued by the learned counsel 'for the complainant that the trial of this case has already commenced after framing of a charge against the petitioners and their co‑accused and, thus, this Court may not exercise its discretion in favour, of the petitioners by admitting them 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 observed above that the case against the petitioners calls for further inquiry into their guilt. It is trite that in a case calling for further inquiry into the guilt 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 persons on account of commencement of his trial but that surely proceeds on 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.

4. For what has been discussed above both the above mentioned, petitions are allowed and the petitioners are admitted to bail subject to furnishing bail Bonds in the sum of Rs.1,00,000 (Rupees one hundred thousand only) each with one surety each in the like amount to the satisfaction of the learned trial Court.

5. Before parting with this order it may be clarified that any observation made in the present order shall not prejudice the learned trial Court in any manner. H.B.T./A‑942/L Bail granted.