Through this petition Muhammad Maqbool, Zafar lqbal, Muhammad Imtiaz, Muhammad Mumtaz, Muhammad Mukhtar and Muhammad Ali petitioners have sought post-arrest bail in case F.I.R.
No,555 registered at Police Station Satellite Town, Sargodha on 29-11-2001 for offences under sections 324/148/149, P.P.C. During the investigation section 302. P.P.C. was added to the F.I.R. and section 324, P.P.C. was deleted therefrom.
2. After hearing the learned counsel for the parties and going through the record it has been noticed that the deceased in this case namely Zafar Iqbal had sustained only one injury which was specifically attributed to Sultan co-accused. Admittedly nobody had received any injury during the alleged incident at the hands of the present petitioners. It is also not disputed that no crime-empty was recovered from the place of occurrence so as to lend corroboration to the allegation against petitioners Nos,1 to 5 regarding indulging in ineffective firing and petitioner No,6 was not even armed with a fire-arm and he had not wielded his hatchet during the alleged incident. In these circumstances the question regarding sharing of common object by the present petitioners with their co-accused as also the question regarding their vicarious liability for the offence allegedly committed by their co-accused shall be gone into by the learned trial Court on the basis of the evidence to be led before it. The challan in this case has already been submitted after completion of investigation and. thus. continued custody of the petitioners in jail is not likely to serve any beneficial purpose at this stage. In these circumstances the case against the present petitioners calls for further inquiry into their guilt within the purview of subsection (2) of section 497, Cr.P.C.
3. It has vehemently been argued by the learned counsel for the complainant that the trial of the petitioners has already commenced and, therefore, the petitioners may not be enlarged on bail at such a stage. I have, however, remained unable to subscribe to this,- submission of the learned counsel for the complainant. It has already been held above that the case against the present petitioners calls for further inquiry into their guilt. It is trite 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 and not by way of grace or concession. Bail is sometimes refused to an accused person on the ground of commencement of his trial but such an approach proceeds only upon a question of propriety. 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 regard may be made to the case of Muhammad Ismail v. Muhammad Rafique and others (PLD 1989 SC 585).
4. For what has been discussed above this petition is hereby allowed and the petitioners are admitted to bail subject to furnishing bail bonds in the sum of Rs,50,000 (Rupees fifty thousand only) each with one surety each in the like amount to the satisfaction of the learned trial Court.