' ASIF SAEED KHAN KHOSA, J.---Through this petition Muhammad Aslam petitioner has sought leave to appeal against the order dated 15.12.2015 passed by a learned Judge-in-Chamber of the Lahore High Court, Lahore in Criminal Miscellaneous No,14460-B of 2015 whereby post-arrest bail was refused to him in case FIR No,189 registered at Police Station Sadder Arifwala, District Pakpattan Sharif on 15.04.2012 in respect of offences under sections 302, 14$ and 149, P.P.C. During the investigation section 109, P.P.C. Was added to the FIR.
2. After hearing the learned counsel for the parties and going through the record we have observed that according to the FIR the petitioner was present at the scene of the crime- at the relevant time and he had caused a firearm injury on the left eye of Muhammad Raza deceased which injury, according to the medical evidence, had proved fatal. The FIR in this case had been lodged on 15.04.2012 and the record of investigation of this case shows that on 09.06.2012 Muhammad Saleem complainant had got his supplementary statement recorded before the investigating officer in which statement he had maintained that he had implicated the present petitioner in the FIR on the basis of suspicion and as a matter of fact the petitioner was not present at the spot at the time of the occurrence and he had actually provided behind-the-scene abetment to his co-accused for commission of the alleged murder. Three investigating officers had independently conducted investigation of this case and one of them was of the rank of a Deputy Inspector-General of Police and all the investigating officers had concurred in their opinion A that the petitioner was not present at the spot at the time of the occurrence and that he was merely a facilitator or an abettor of his co-accused as regards the murder in issue. The petitioner is also relying upon some documents to show that one day prior to the present occurrence he had been apprehended by the local police on the basis of an allegation regarding breach of the peace and it was on the day of the present occurrence that he had been released from custody by the order of the local Magistrate some time in the afternoon. As a result of the -investigation the report under section 173, Cr.P.C. Submitted in this case imputes abetment qua the petitioner and he has been opined to be guilty of an offence under section 109, P.P.C. Only. It has been argued by the learned counsel for the complainant that the petitioner had made himself scarce for a long time after the occurrence and during the interregnum he had been formally declared as a Proclaimed Offender and on account of his abscondance he is not entitled to an exercise of discretion in his favour in the matter of bail.
He has also argued that a private complaint has already been instituted by the complainant and in that complaint the allegation leveled against the petitioner is the- same which had been leveled against him in the FIR and also that the complainant had made no supplementary statement before the investigating officer maintaining that as a matter of fact the petitioner was not present at the spot at the time of the occurrence. The learned Additional Prosecutor-General, Punjab appearing for the State has confirmed the above mentioned aspects of the case pertaining to different stages of the investigation and the shifting stands of the complainant regarding the role allegedly played by the petitioner in the murder in issue.
3. After attending to the contentions of the learned counsel for the parties with reference to the record it is quite evident to us that at the present juncture the petitioner is saddled only with the responsibility of providing behind-the-scene abetment to his co-accused as regards the murder in question and the shifting stands of the complainant vis-a-vis the role played by the petitioner has surely rendered the case against the petitioner to be a case calling for further inquiry into his guilt within the purview of subsection (2) of section 497, Cr.P.C. This is more so when as many as three investigating officers have already doubted the claim of the complainant party regarding the petitioner's presence at the spot and firing at the deceased. It may be true that a person absconding after an occurrence and declared as a Proclaimed Offender may lose his claim to exercise of discretion in his favour by a court of law on the basis of propriety but at the same time it is equally true that an accused person the case against whom calls for further inquiry is to be admitted to bail as a matter of right. 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).
4. For what has been discussed above this petition is converted into an appeal and the same is allowed and, consequently, Muhammad Aslam petitioner is admitted to bail in the above mentioned criminal case 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 trial court.