' Petitioner Sarfraz Ahmad through the instant petition has sought for cancellation of pre-arrest bail extended to respondents Nos.1 to 3 vide the order dated 22-7-2004 recorded by the learned Additional Sessions Judge, Faisalabad in case F.I.R. No.448 dated 26-6-2004 under section 381-A, P.P.C. Registered with Police Station Ghulam Muhammad Abad, Faisalabad.
2. Briefly the facts relevant for the disposal of the instant petition are that the said case has-been registered on the written application of the petitioner.
3. He has alleged therein that on 1-5-2004 at about 8-00 p.m. He had parked his motorcycle Rikshaw No.4923/STC in the street outside the house of Aslam (respondent No.1) son of Yaqoob and went to sleep there and at about 11-00 p.m. He found his motorcycle Rikshaw missing.
' He inquired about Aslam but he was not available at his house. The motorcycle Rikshaw has been stolen away by Aslam and his brother Mujahid Ali and Ashraf (respondents Nos.2 and 3).
4. Respondents Nos.1 to 3 apprehending their arrest at the hands of the police have applied for pre- arrest bail in the case. The same was extended to them by the learned Additional Sessions Judge'
Faisalabad, vide his aforesaid order on the following consideration:- "On careful perusal of record and analysis of the arguments, it is apparently found that there is no evidence at all against the petitioners connecting them with the charge of theft. They are regularly joining the investigation but complainant is not appearing before the Investigating Officer complainant has not produced any evidence before the Investigating Officer against the present petitioners. Complainant applied to DPO before the registration of case. In that application, he had mentioned that his motorcycle Rickshaw was stolen on 1-4-2004 and theft was committed by present petitioners Nos.1 and 2. The complainant did not mention the registration number of rickshaw. But the complainant in his second application addressed to DPO mentioned the registration number of rickshaw, named all the three petitioners and mentioned the date of occurrence as 1-5-2004. The matter was referred to Nazim Union Council by he parties to this application and Nazim decided the dispute in favour of present petitioners. After the registration of case, the complainant has brought no incriminating evidence against the petitioners. If the aforementioned facts are kept in mind, it may be presumed that contention of the petitioners about their innocence is not without force".
5. Petitioner feeling himself aggrieved of the said order has come up with the instant petition for cancellation of their bail.
6. It has been argued on his behalf that the respondents Nos.1 to 3 did not allege any mala fide on the part of the petitioner in their involvement in the case in their application for pre-arrest bail and it was also not alleged before the Court of learned Additional Sessions Judge at the time of hearing of their petition for such bail and even learned Additional Sessions Judge himself did not mention such fact in his above said order; that unless such condition had been present in the case of these respondents, they could not be extended that extraordinary relief and in this regard reference has been made to the cases of Murad Khan v.
Fazal-e-Subhan and another (PLD 1983 SC 82), Muhammad Safdar and others v. The State (1983 SCMR 645), Zia-ul-Hassan v. The State (PLD 1984 SC 192), Arif Matin Bhutta v. The State (PLD 1984 Lah. 383), Mst. Shafiqan v. Suba Khan and 2 others (1973 SCMR 42), Ali Muhammad v. Yamin and another (1981 SCMR 1139) and Muhammad Jan Marwat and another v. Nazir Muhammad and 17 others (1997 SCMR 287), that the reasons advanced by the learned Additional Sessions Judge in the grant of such extraordinary relief to these respondents are not correct; that they in the recent investigation carried out by the DSP, Faisalabad have been found to be involved in the matter; and that stolen motorcycle Rickshaw was to be recovered from them, which could not be due to grant of pre-arrest bail to them; and that in such circumstances of the case, they were not entitled to the pre-arrest bail.
7. As against the same, it has been submitted on behalf of the respondents Nos.1 to 3 that they have been falsely involved by the petitioner in the instant case with mala fide intention as there was friendship between them earlier but subsequently relation between them went strained; that the petitioner did not mention anybody's name in the F.I.R. As having seen them committing the theft of his rickshaw; that on the basis of the suspicion he has involved them in the case; that during the successive investigations, they have been found innocent that there was no incriminating material available on the record against them regarding the theft of motorcycle Rickshaw and the same also shows the mala fide intention on the part of the petitioner in their involvement in the case; that in such circumstances, they were rightly extended the relief of pre- arrest bail; that the conditions justifying the cancellation of relief extended to them are not present in the case of the petitioner; that bail once granted to an accused by a Court v of competent jurisdiction can be recalled only. On very strong and exceptional grounds while no such ground is available in the case of the petitioner and in this regard reference has been made to the case of.
Muzaffar Iqbal v. Muhammad Imran Aziz and others (2004 SCMR 231), Pervaiz v. The State and 2 others (2004 PCr.LJ 1318 Peshawar) and Muhammad Siddique v. Habib-ur-Rehman and 3 others (2004 PCr.LJ 1251 Lahore).
8. Learned counsel for respondent No.4/The State has submitted that respondents Nos.1 to 3 in two first investigations have been found to be innocent' and till then there had been no incriminating material available on the record against them and in the third investigation by Shakeel Zafar, DSP, Gulberg Circle, Faisalabad, they were found involved in the matter.
9. I have carefully considered the submissions made from both the sides with the help of the available record.
10. On going through the F.I.R., it has appeared that the, petitioner did not see respondents Nos.1 to 3 committing theft of his above said motorcycle rickshaw. The narration of the F.I.R. Suggests that he either on the basis of guess or suspicion has accused them of having committed IA the theft of his motorcycle Rickshaw.
11. It may be mentioned here that suspicion or guess, howsoever, strong may be but cannot take place of proof.
12. Laying of suspicion by the petitioner against them of having committed the theft of his motorcycle Rickshaw leaves room for entertaining doubt qua the question of their guilt in the matter.
13. It may be mentioned here that benefit of doubt, arising out of a situation or circumstance in a case, even at bail stage, is to be given to accused.
14. It has been found from the police record that these respondents in two first investigations were found to be not involved in the matter. They were declared innocent. Firstly, it was by Liaqat Ali, S.I.
Incharge Police Post Raza Abad, Faisalabad.
15. Secondly, Muhammad Akmal, Inspector Incharge (Investigation) Police Station Ghulam Muhammad Abad has arrived at such finding about them, which was vide his case Diary No.11 recorded on 21-8-2004. He has mentioned in his case Diary that the complainant (petitioner) could not produce any solid proof of their involvement in the matter on the record and as against the same they (respondents Nos.1 to 3) have produced such proof or evidence in support of their plea of innocence. He has concurred with the opinion of Liaqat Ali S.I. He had directed him to get discharge in the case.
16. This shows that two police officers in the initial investigation ID have found these respondents to be innocent.
17. Learned Additional Sessions Judge has extended them pre-arrest bail on 22-7-2004. One of his observation mentioned above is that till them no evidence at all was there on the record to connect them with the commission of the alleged offence. It, thus appears that his such observation was absolutely based on the record and not at all on any E extraneous consideration as till then no incriminating evidence was available with the police on the record against them. He then was justified in extending the relief to them. This circumstance, itself was indication of existence of mala fide on the part of the petitioner in their involvement in the case.
18. The finding of their innocence by the two police officers was also an instance of such mala fide on his part in the matter.
19. Here, I find it quite relevant to mention that although opinion of police is not binding upon Court but still it has always been considered a relevant circumstance to be taken into consideration in such-like matter.
20. As regards the opinion of the above named DSP, I have 'gone through his case Diary No.16 recorded on 30-9-2004. The same seems to be based upon mere supposition or his own assessm ent of certain circumstances appearing in the material on the record. The same however, has not been found to be based upon any sound material on the record. He has mentioned that two witnesses namely Abdul Hamid and Muhammad Hussain have accused these respondents as the thieves. Their statements have been recorded by him on 30-9-2004. The motorcycle Rickshaw allegedly was stolen on 1-5-2004. These, thus were after a period of about five months of the same.
The question of evidentiary value of such statements of these two persons really require consideration. In these circumstances of the case, I find that the learned Additional Sessions Judge has not at all erred in extending the relief to these respondents. Their bail, thus cannot be cancelled merely for the reason that the recovery was to be effected from them.
21. The esteemed authorities is referred, to above by the side of the petitioner as regards the question of existence of mala fide on the part of the petitioner in the matter, with all respects, these were not aptly applicable, to the case of the petitioner in the above circumstances. It has been mentioned in the case of Muzaffar Iqbal v. Muhammad Imran Aziz and others (2004 SCMR 231) that consideration for cancellation of bail are different than those for grant of bail. In the case of Pervaiz v. State and 2 others (2004 PCr.LJ 1318), it has been held that once a Court of competent jurisdiction grants bail to an accused, then the same cannot be cancelled/withdrawn except on very strong and exceptional circumstances, while as is obvious of the above position that no such ground has been shown by the side of the petitioner to be there it withdraw the relief extended to them. In this regard reliance is also placed upon the case of Muhammad Siddique v. Sh. Habib-ur-Rehman and 3 others (2004 PCr.LJ 1251 Lahore).
22. The nutshell of the above discussion is that no case for cancellation of pre-arrest bail extended to the respondents Nos.1 to 3 has been made out. The petition therefore, is dismissed.
23. It is clarified here that the observations made above are tentative in nature. These in no way shall influence the mind of trial Court.