2012 S C M R 1137
[Supreme Court of Pakistan]
Present: Asif Saeed Khan Khosa and Ijaz Ahmed Chaudhry, JJ
EHSAN ULLAH---Petitioner
versus
THE STATE---Respondent
Criminal Petition No.358-L of 2012, decided on 23rd May, 2012.
(Against the order dated 6-3-2011 passed by the Lahore High Court, Lahore in
Criminal Miscellaneous No.466-B of 2012).
(a) Criminal Procedure Code (V of 1898)---
----S. 497(2)---Penal Code (XLV of 1860), Ss.302/324/427/109/ 148/149---
Constitution of Pakistan, Art. 185(3)---Qatl-e-amd, attempt to qatl-e-amd, mischief
causing damage, abetment and rioting---Bail, grant of---Version of State and
complainant---Distinction---Further inquiry---Accused was nominated in F.I.R. but
no specific injury to any person had been attributed to him and only generalized
and collective allegation was levelled against him---Investigating agency had
reached at definite conclusion that accused was not even present at the scene of
crime at relevant time and had provided behind-the-scene abetment to his co-
accused for commission of alleged offence---Accused had been recommended for
trial only in respect of an offence under S.109, P.P.C.---Prosecution itself had two
versions vis-a-vis the accused, first was of complainant party according to which
accused was present at the spot and had resorted to firing and second of
investigating agency according to which accused was not present at the spot and he
was abetting his co-accused behind the scene---Such considerations render the case
against accused one of further inquiry into his guilt---Bail was allowed.
(b) Criminal Procedure Code (V of 1898)---
----S. 497(2)---Bail---Abscondence---Further inquiry---In a case calling for further
inquiry into the guilt of accused, bail is to be allowed to him as of right and not by
way of grace or concession---Mere abscondence of accused person may not be
sufficient to refuse bail to him.
Muhammad Sadiq v. Sadiq and others PLD 1985 SC 182; Ibrahim v. Hayat Gul
and others 1985 SCMR 382 and Qamar alias Mitho v. The State and others PLD
2012 SC 222 rel.
C.M. Latif, Advocate-on-Record and Ch. Abdul Ghaffar, Advocate Supreme
Court for Petitioner.
Ms. Tabinda Islam, Advocate Supreme Court and M.A. Qureshi, Advocate-on-
Record for the Complainant.
Asjad Javaid Ghural, Additional Prosecutor-General, Punjab for the State.
Date of hearing: 23rd May, 2012.
ORDER
ASIF SAEED KHAN KHOSA, J.---Through this petition Ehsan Ullah
petitioner has sought leave to appeal against the order dated 6-3-2012 (wrongly
mentioned in the impugned order as 6-3-2011) passed by a learned Judge-in-
Chamber of the Lahore High Court, Lahore in Criminal Miscellaneous No.466-B of
2012 whereby pre-arrest bail was refused to the petitioner in case F.I.R. No. 766
registered at Police Station Civil Lines, Gujrat on 29-8-2009 in respect of offences
under sections 302/324/427/109/148/149, P.P.C.
2. We have heard the learned counsel for the parties and have gone through the
record of this case with their assistance.
3. After hearing the learned counsel for the parties and going through the record
we have straightaway observed that although the petitioner stands nominated in the
F.I.R. yet no specific or particular injury to any person has been attributed to him
therein and only a generalized and collective allegation has been levelled against
him in the F.I.R. It may be true that the petitioner was a nominated accused person
in the criminal case set up as the motive for the present offences but at the same
time a possibility cannot safely be ruled out of consideration regarding spreading
the net wide by the complainant party in the present criminal case so as to falsely
entangle the petitioner on account of his involvement in the case of motive. It is not
disputed that nothing had been recovered from file petitioner's possession during
the investigation of this case. It is pertinent to mention that the investigating agency
had reached at a definite conclusion that the petitioner was not even present at the
scene of the crime at the relevant time and as a matter of fact he had provided
behind-the-scene abetment to his co-accused for commission of the alleged
offences and this is why the petitioner has been recommended for trial only in
respect of an offence under section 109, P.P.C. This shows that in the present case
the prosecution itself has two versions vis-a-vis the petitioner, first of the
complainant party according to which the petitioner was present at the spot and had
resorted to firing and second of the investigating agency according to which the
petitioner was not present at the spot and he was abetting his co-accused from
behind the scene. All these considerations surely render the case against the
petitioner one of further inquiry into his guilt.
4. It has vehemently been argued by the learned Additional Prosecutor-General,
Punjab appearing for the State as well as the learned counsel for the complainant
that the petitioner had remained a Proclaimed Offender for over one year after
registration of this case and, thus, he is not entitled to the concession of ball. We
have, however, remained unable to subscribe to this submission because it has
already been observed by us above that the case against the petitioner calls for
further inquiry into his guilt. It is settled law 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 not by way of grace on concession and in such a case mere absconsion of the
relevant accused person may not be sufficient to refuse bail to him. A reference in
this respect may be made to the cases of Muhammad Sadiq v. Sadiq and others
(PLD 1985 SC 182), Ibrahim v. Hayat Gul and others (1985 SCMR 382) and
Qamar alias Mitho v. The State and others (PLD 2012 SC 222).
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.2,00,000 (Rupees two hundred thousand
only) with two sureties each in the like amount to the satisfaction of the learned
trial Court.
M.H./E-1/SC Bail allowed.
;
