' Through this application under section 498 Cr.P.C. The petitioners seek bail before arrest in case F.I.R. No.198 of 2003, dated 7-6-2003 registered under section 379, P.P.C. At Police Station, Muzaffarabad, Multan on the statement of Hussain Bakhsh.
2. According to Hussain Bakhsh complainant the occurrence had taken place in the night between 24/25-10-2001 wherein fan of his tube-well amounting to Rs.10,000 was stolen away. He alongwith witnesses went to the place of occurrence and Muhammad Rafiq was summoned to trace out the accused persons. He pointed the house of the petitioners. It was thus suspected that the petitioners alongwith Muhammad Soba had committed the offence. A Punchait was convened, which also declared the petitioners as accused as they could not give their "Safai".
3. Learned counsel for the petitioners contends that the petitioners have been falsely involired in the present case as earlier the complainant filed an application with the allegation against the petitioners for committing the theft of a buffalo wherefor a Punchait was convened. Which had declared them innocent, but one buffalo as well as cow were given as a security to the complainant till the final decision of the Punchait and on demand for return of the said animals, the inNI.Int frivolous case has been got registered by the complaint with mala tide intention. It is further contended that the fan is usually weighing about 5/6 maunds and can only be removed with the help of 6/7 persons. It is also contended that so far no sufficient evidence has been collected by the prosecution to connect the petitioners with the commission of crime. It is also contended that during the investigation the petitioners were declared innocent by the police, hence possibility of the false implication of the petitioners in the present case cannot be ruled out.
4. On the other hand, learned counsel appearing on behalf of the complainant opposes this application on the ground that the petitionersare real culprits and D.S.P. Who subsequently investigated the case has found the petitioners as responsible for the commission of theft, but the petitioners had not joined the investigation before the D.S.P. And they are not entitled to the grant of pre-arrest bail as the recovery has yet to be effected.
5. Learned counsel for the State also opposes this application.
6. I have heard the learned counsel for the parties and also perused the record with due care and caution. Bail before arrest is meant to protect innocent citizens if there are chances of their false implication and case is found to have been registered against the accused persons with mala fide intention. I am conscious of the fact that the allegation of theft has been levelled against the petitioners and the recovery has yet to be effected. Even then if the circumstances show that there are chances of false implication of the accused, bail before arrest can be granted as liberty of a person cannot be curtailed without sound reasoning and sufficient evidence on the record. In the present case no evidence has been collected by the police except the statement of complainant, who has only raised suspicion that the petitioners had committed this theft. The statement of Muhammad Rafiq tracer has not been recorded by the police so far. Even otherwise the occurrence had allegedly taken place in the night between 24/25-10-2001 and Muhammad Rafiq, according to the complainant had also told in the presence of witnesses that the offence might have been committed by the accused/petitioners but the case was not registered against the petitioners for more than one and a half years for the reasons best known to the complainant or the police.
Moreover, Muhammad Soba co-accused was arrested and he also remained on physical remand but the police could not recover the fan or any other material connecting the present petitioners with the commission of crime. The complainant seems to be habitual in levelling allegations against the petitioners as on the police record there is an application moved by the complainant regarding theft of his buffalo and he suspected that the petitioners were responsible for the same.
The application for registeration of the instant case was presented before the Superintendent of Police, Muzaffargarh who directed the S.H.O. For taking legal action against the real culprits. During the investigation the stand has been taken by the petitioners that they have been falsely implicated by the complainant Hazoor Bakhsh to whom one buffalo and one cow were given as security till the decision of the Punchait and since the allegation levelled for the commission of theft was found false against the petitioners in the Punchait, they demanded back the above-said animals, whereupon the complainant with mala fide intention has falsely got registered this criminal case against the petitioners. The police also came to the conclusion that the petitioners were innocent and they mentioned the same vide case diary dated 30th of December, 2001 hence the version of the petitioners was accepted. Liberty of citizen a cannot be curtailed merely on suspicions. There are chances of false implication of the petitioners in the present case due to mala fides on the part of the complainant who is continuously involving the petitioners in such-like cases. Moreover there is delay of about I-1/2 years in registration of this case, which has not been explained in any manner. Bail cannot be refused merely on the ground that recovery is yet to be effected as sufficient evidence has not been collected so far to prima facie connect the petitioners with the commission of the alleged crime. In such circumstances, this application is accepted and the ad interim pre-arrest bail already granted to the petitioners by this Court vide order dated 27- 1-2004 is hereby confirmed subject to their furnishing fresh bail bonds amounting to Rs.1,00,000 (Rupees one lac only) each with two surities each in the like amount to the satisfaction of learned Judicial/Ilaqa Judicial Magistrate.
Pre-arrest .