MUHAMMAD NAWAZ Versus THE STATE

ORDER

Through this petition Muhammad Nawaz petitioner has sought post‑arrest bail in case F.I.R. No.347 registered at Police Station Sadar, Gujrat on 10‑7‑1999 for an offence under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.

2. After hearing the learned counsel for the parties and going through the record it has been noticed that the F.I.R. in this case had l been lodged with a delay of more than one month. It is not disputed that the alleged abductee namely Mst. Nusrat had never been recovered from the custody of the petitioner. The challan in this case has already been submitted after completion of investigation in respect of the present petitioner. The petitioner has already spent more than four months in jail in connection with this case and his continued custody in jail is not likely to serve any beneficial purpose at this stage. Thus, the case against the petitioner calls for further inquiry into his guilt within the purview of subsection (2) of section 497, Cr.P.C. A reference in this regard may be made to the cases, of Muhammad Yousuf v. The State 1982 PCr.LJ 9.14, Ghulam Ali v. The State 1989 PCr.LJ 667., Ghulam Yasin and another v. The State 1987 PCr.LJ 837 and Mukhtar alias Makha v. The State NLR 1994 Shariat Decisions 624.

3. It has vehemently been argued by the learned counsel for the State that the petitioner had remained a fugitive from law for some period of time during the investigation of this case and, therefore, he is not entitled to an exercise of discretion in his favour in the matter of bail. I have, however, remained unable to subscribe to this submission of the learned counsel for the State. It has already been found above that the case against the petitioner calls for further inquiry into his guilt. It is settled law that when the guilt of an accused person calls for further inquiry then such an accused person is to be admitted to bail as a matter of right and not by way of any grace or concession. As against that the matter of abscission of an accused person pertains only to an element of propriety in the matter of bail. It goes without saying that' whenever an element of propriety is confronted with a question of right the latter must prevail.

4. 1t has also been argued by the learned counsel for the State that Muhammad lqbal co‑accused is still a fugitive from law and the alleged abductee is yet to be recovered from his custody. This contention has also failed to impress me as it is a settled proposition of law that one accused person cannot be held as a hostage for the arrest of another or even for the recovery of an alleged abductee.

5. For what has been discussed above this petition is allowed and the petitioner is admitted to bail in the sum of Rs. 50,000 (Rupees fifty thousand only) with two sureties each in the like amount to the satisfaction of the learned trial Court.

6. Copy dasti on payment of usual charges

H.B:T./M‑277/L

Bail granted