Through this petition Muhammad Raftque petitioner has sought post-arrest bail in case F.I.R. No.267 registered at Police Station Malka Hans, District Pakpattan Sharif on 14-12-1995 for an offence under, section 364, P.P.C.
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 been lodged with a delay of two years. Admittedly the alleged abductee had not been recovered from the custody of the petitioner during the investigation.
There was admittedly a background of ill-will and bitterness between the parties as the present petitioner had earlier lodged an F.I.R. Against a son of the complainant regarding commission of an unnatural offence. Two co-accused of the present petitioner namely Ameer and Ghaffar have already been admitted to post-arrest bail by the learned Courts below and it is not disputed A that the allegations levelled against the, present petitioner are in no manner different from .The allegations levelled against the said co-accused.
The complainant, who is present before this Court in person today, has maintained that he seriously suspects involvement of the present petitioner in doing away with the complainant's son, the alleged abductee, but he has candidly conceded that he is not possessed of any proof in that regard. It is trite law that suspicion, howsoever, strong it 'may be can never be a proper substitute for proof beyond reasonable doubt required in a criminal case. For all these reasons the case against the petitioner indeed calls for further inquiry into his guilt within the perview of subsection
(2) of section 497, Cr. P.C.
3. The learned counsel for the State has maintained that the petitioner had remained a fugitive from law for a considerable period of time and, therefore, he is not entitled to an exercise of discretion in his favour in that matter of bail. It has, however, been admitted before this Court by the police officer present with the record that no proceedings under, sections ,87/88, Cr.P.C. Had been taken in this case against the present petitioner and, therefore, he cannot be branded as a fugitive or proclaimed offender in the eye of law. Even otherwise, it has already been held above that the case against the present 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 granted to such an accused person as a matter of right. Bail is sometimes refused to an accused person who has remained a fugitive from law but that is done only on a principle of propriety. It goes without saying that whenever a question of properiety is confronted, with a question of right the latter must prevail.
4. The learned counsel for the State has also argued that the principal accused- in this case namely Hafiz Iqbal is still an absconder and admission of the present petitioner to bail is likely to hamper and impede the efforts of the police to arrest the said fugitive. I have not been able to subscribe to this submission of the learned counsel for the State as it is established law that one accused person cannot be kept as a hostage for the arrest of another.
5. It has lastly been argued by the learned counsel for the State that so far the alleged abductee has not been recovered and, therefore, admission of the present petitioner to bail is going to make it difficult for the police to recover the alleged abductee. This argument of the learned counsel for the State has also failed to impress this Court. It is not disputed that the present petitioner- had remained on physical remand with the local police before he was sent to judicial lock-up and during such physical remand the alleged abductee had not been recovered from the petitioner's custody nor any clue was found to the whereabouts of the said abduc---ee during that period.
Thus, continued custody of the petitioner in jail is not likely to help in recovery of E the alleged abductee.
6. For what has been discussed above this petition is allowed and the petitioner is admitted to bail subject to furnishing bail bond in the sum of Rs.50,000 (rupees fifty thousand only) with one surety in the like amount to I the satisfaction of the learned trial Court.