MUHAMMAD SHAFI and others vs The STATE and others

ORDER

' ASIF SAEED KHAN KHOSA, J.--- Criminal Miscellaneous Application No, 31-L of 2016 ' For the reasons mentioned in this miscellaneous application the same is allowed and the delay in filing of Criminal Petition No,76-L of 2016 is condoned. Disposed of.

' Criminal Petition No, 76-L of 2016

2. Through this petition Muhammad Shafi and Allah Bakhsh petitioners have sought leave to appeal against the order dated 20.08.2015 passed by a learned Judge-in-Chamber of the Lahore High .Court, Multan Bench, Multan in Criminal Miscellaneous No, 4279-B of 2015 whereby post-arrest bail was refused to them in case FIR No, 161 registered at Police Station Kala, District Dera Ghazi Khan on 16.06.2013 in respect of offences under sections 302, 148, 149 and 109, P.P.C.

3. After hearing the learned counsel for the parties and going through the record it has been observed by us that admittedly both the present petitioners were empty-handed during the incident in issue and A they had not caused any injury to any person during the same. According to the prosecution the petitioners had raised a joint lalkara instigating their co-accused to launch an assault upon the complainant party whereafter as many as three members of the complainant party had been done to death. It is not denied that both the present petitioners are elders of their co-accused who had fired at the deceased and there is a background of enmity between the parties based upon a previous murder. In that backdrop spreading the net wide by the complainant party so as to falsely entangle the petitioners in the present criminal case appears to be a possibility which cannot safely be ruled out of consideration at this stage. The investigation of this case has already been finalized, a Challan has been submitted, the petitioners' trial has commenced and statements of many prosecution witnesses have been recorded and, thus, physical custody of the petitioners is no longer required at this stage and their .Continued incarceration is not likely to serve any beneficial purpose. For all these reasons we have found that the case against the petitioners calls for further inquiry into their guilt within the purview of subsection (2) of section 497, Cr.P.C.

4. It has vehemently been argued by the learned counsel for the complainant that the petitioners had made themselves scarce after registration of this case and they had been formally declared as Proclaimed Offenders and, thus, they are not entitled to an exercise of discretion in their favour in the matter of bail. We have already concluded above that the case against the petitioners calls for further inquiry into their guilt. The law is settled by now that in a case calling for further inquiry into the guilt of an accused person bail is granted to him as of right or not by way of grace or concession. It may be true that sometimes bail is refused to an accused person upon his having remained a Proclaimed Offender 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 cases of Ibrahim v. Hayat Gul and others (1985 SCM R 382), Muhammad Sadiq v. Sadiq and others (PLD 1985 SC 182), Qamar alias Mitho v. The State and others (PLD 2012 Sc 222) and Ehsan Ullah v. The State (2012 SCM R 1137).

5. For what has been discussed above this petition is converted into an appeal and the same is allowed and, consequently, Muhammad Shafi and Allah Bakhsh petitioners are admitted to bail in the above mentioned criminal case subject to furnishing bail bonds in the sum of Rs,1,00,000/- (Rupees one hundred thousand only) each with two sureties each in the like amount to the satisfaction of the trial court.

6. Before parting with this order it may be mentioned that the learned counsel for the complainant has maintained that the petitioners are hampering the progress of the trial. If that be so and if the petitioners impede due progress of the trial then the trial court may consider canceling their bail on such score.