QAMAR alias MITHO vs THE STATE and others

' ASIF SAEED KHAN KHOSA, J.---Through' this petition Qamar alias Mitho petitioner has sought leave to appeal against the. Order dated 21-7-2011 passed by a learned Judge-in-Chamber of the Lahore High Court, Lahore whereby post-arrest bail was refused to the petitioner in case F.I.R. No 228 registered at Police Station Ferozwala, District Sheikhupura on 12-4-2006 in respect of an offence under section 302, P.P.C. Read with section 109, P.P.C. During the investigation section 34, P.P.C. Was added to the F.I.R.

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

3. It is not denied that the petitioner 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 after more than one month of the alleged occurrence when two persons namely Rehmat Ali and Muhammad Ashraf had nominated him as the unknown culprit who had accompanied the nominated culprits at the place of occurrence. It is admitted at all hands that both the above mentioned persons were not mentioned in .The F.I.R. As eye-witnesses of the alleged incident. After such nomination of the petitioner it was necessary that a test identification parade ought to have been held so that the eye-witnesses mentioned in the F.I.R. Could identify the petitioner as the culprit who had been mentioned in the F.I.R. As an unknown culprit but unfortunately that was never done. No specific or particular injury to any person had been attributed in. The F.I.R. To the person who had been described therein as unknown culprit. Apparently the petitioner has no connection with the motive set up in the F.I.R. We have found it to be intriguing that those culprits who had specifically been nominated in the F.I.R. And had been attributed firing at the deceased have already been admitted to post-arrest bail but the petitioner who had never been nominated in the F.I.R. And whose implication in this case had come about through a backdoor has been refused the same relief. In these peculiar circumstances we have found that the case against the petitioner calls for farther inquiry into his guilt.

4. It has vehemently been argued by the learned Additional Prosecutor-General, Punjab appearing for the State that the petitioner had remained a Proclaimed Offender for a period of about four years and, thus, he is not entitled to any indulgence in the matter of bail. We have, however, not felt persuaded to agree with the learned Additional Prosecutor-General in this regard. It has already been held by this Court in the cases of Ibrahim v. Hayat Gul and others (1985 SCM R 382) and Muhammad Sadiq v. Sadiq and others (PLD 1985 SC 182) 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 such right cannot be refused to him merely on account of his alleged abscondance which is a factor relevant only to propriety.

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, 1,00,000 (Rupees one hundred thousand only) with two sureties each in the like amount to the satisfaction of the learned trial Court.