' Zakir Hussain and Alam Sher petitioners are accused persons in case F.I.R. No, 568 registered at Police Station Tandialianwala, District, Faisalabad on 5-7-1997 for offences under section 10/16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The allegation against the petitioners and their co-accused is that on 9-12-1996 they had enticed away Mst. Bhiranwan Bibi, daughter of Jaffar complainant, and thereafter, Zakir Hussain petitioner No,1 had been committing Zina with her. After their initial arrest in this case by the local police both the petitioners were admitted to post-arrest bail by the learned trial Court but subsequently they had become fugitives from law. After having remained fugitives from law for some time the petitioners were re-arrested by the police. Thereafter, an application submitted by the petitioners for post-arrest bail was dismissed by the learned Additional Sessions Judge, Faisalabad vide order, dated 22-11-1999.
Hence, the present petition before this Court.
2. After hearing the learned counsel for the parties and going through the documents annexed with this petition it has been noticed that the F.I.R. In this case had been lodged with a delay of about seven months. As regards the allegation in respect of commission of Zina by petitioner No,1 with the alleged enticed there appears to be no independent evidence available with the prosecution in that regard. As far as the alleged entice is concerned she had filed Writ Petition No,2691 of 1998 and Writ Petition No,15338 of 1998 before this Court wherein she had categorically maintained that she was a lawfully wedded wife of Zakir Hussain petitions No,1 and that she had never been given in marriage to Noor Ahmad prior to that as alleged in the F.I.R. As far as the allegation regarding her enticement by the petitioners and others is concerned suffice it to observe that even according to the F.I.R., the alleged enticed was a grown-up lady. Her age had been mentioned in the above- mentioned writ petitions as about twenty two years. It is prima facie difficult to believe that a lady of such a mature age would have been enticed away in the manner alleged in the F.I.R. The present petition filed by the petitioners is supported by two affidavits sworn by Jaffar complainant and Noor P.W. Who have already forgiven the petitioners and have offered no objection to grant of bail to the petitioners. All these facts do indeed render the case against the petitioners to be one of further inquiry into their guilt within the purview of subsection (2) of section 97, Cr.P.C.
3. The order passed by the learned Additional Sessions Judge, Faisalabad on 22-11-1999 shows that the petitioner had remained fugitives from law for a considerable period of time and on the basis thereof the learned counsel for the State has vehemently argued that the petitioners are not entitled to the concession of bail as they have already misused the said concession granted to them earlier on by the learned trial Court. The learned counsel for the State is quite justified in making this submission as the said submission is based upon a rule of propriety according to which a person who has already misused the concession of bail is ordinarily not extended the same concession again. However, it cannot be lost sight of that, as already observed above, the case against the petitioners calls for further inquiry into their guilt. In a case calling for further inquiry into the guilt of accused persons bail is granted to such accused persons as a matter of right and not by way of grace or concession. As against that the concession of bail is refused to a fugitive from law only by way of propriety. It goes without saying that whenever a question of propriety is confronted with a question of right then the latter must prevail.
4. For what has been observed above this petition is allowed and the petitioners are admitted to bail in the sum of Rs,50,000 (rupees fifty thousand only) each with two sureties each in the like amount to the satisfaction of the learned trial Court.