2007 PLP 2704 (YLR)

ASIF SAEED KHAN KHOSA, J.--Through this petition Asim alias Kaloo and Qasim alias Billo petitioners have sought post-arrest bail in case F.I.R. No.182 registered at Police Station City. Pattoke, District Kasur on 30-4-2006, in respect of an offence under section 302, P.P:C. read with section 34, P.P.C.

2. After hearing the learned counsel for the parties and going through the record it has straightaway been noticed by me that the occurrence in this case had taken place during a night and according to the F.I.R. the alleged murder had remained unwitnessed. It is admitted at all hands that, both the present petitioners had not been A nominated in the F.I.R. in any capacity whatsoever. The petitioners names had surfaced in this case for the first time on 3-5-2006, i.e. after three days of the alleged occurrence, through an application submitted by the complainant before the local police. A perusal of the said application shows that although the present petitioners had been introduced by the complainant in this case as co-culprits of Kashif accused nominated in the F.I.R. yet in the said application no reason had been disclosed by the complainant as to how he had by then come to know regarding the petitioners involvement in the alleged murder along with their nominated co-accused. During the investigation one Malik Shahbaz had appeared before the Investigating Officer on 4-8-2006, i.e. after about more than three months of the alleged occurrence and he had claimed that he had seen the present petitioners travelling in the same car along with their co-accused and the deceased during the fateful night . Still later on 12-8-2006, one Rana Javed Iqbal and surfaced in this case as an eye-witness and on 22-5-2006, one Muhammad Ashraf had also appeared before the Investigating Officer and had also claimed to have witnessed the alleged occurrence. A perusal of the statement made by Rana Javed Iqbal and Muhammad Ashraf before the Investigating Officer shows that both the said eye-witnesses had not nominated .the present petitioner. It is not disputed that no test identification parade has been held in this case so as to facilitate the above mentioned eye-witnesses to identify the present petitioners as the culprits who had statedly been seen by the said eye-witnesses committing the alleged murder along with their co-accused. A perusal of the record of investigation of this- case from cover to cover unmistakably shows that the only piece of evidence available against the petitioners on the record so far is the last-seen evidence provided by-Malik Shahbaz P. W. who had made his first statement before the Investigating Officer after more than three months of the alleged occurrence. In these circumstances the case against the present petitioners surely 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 both the present petitioners had remained fugitives from law during the investigations of this case and, thus, they are not entitled to be admitted to bail. I have, however, remained unable to subscribe to this submission of the learned counsel for the complainant. It has, already been observed by me above that the case against the .present petitioners calls for further inquiry into their guilt. It is settled law that in a case calling for further inquiry into the guilt of an accused person such accused person is to be admitted to bail as of right C and not by way of grace or concession. It is true that sometimes an accused person is refused bail on account of his absconscion but at the same time it is equally true that 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 respect may be made to the case of Ibrahim v. Hayat Gul and others (1985 SCMR 382).

4. For what has been discussed above this petition is allowed and the petitioners are admitted to bail subject to furnishing f bail bonds in the sum of Rs.50,000 (Rupees fifty thousand only) each with two sureties each in the like amount to the satisfaction of the learned Trial Court. H.B.T./A-177/L Bail granted.