2010 P Cr (PLP)

HASSAN RAZA PASHA, J.

Through this petition under section, 497(5), Cr.P.C. Abdur Rashid complainant seeks cancellation of ad interim pre-arrest bail granted to respondents Nos.1 and 2 by the Additional Sessions Judge, Chakwal vide order dated 17-5-2010 in case F.I.R. No.48 dated 2-5-2010 registered under sections 454, 380, P.P.C. with Police Station Dhudial District Chakwal.

2. Allegation against the respondents Nos.1 and 2 is that they committed Lurking House Trespass and committed theft of gold ornaments and cash amounting to Rs.3000. The respondents Nos.1 and 2 were not arrested. They, however, made an application for ad-interim pre-arrest which was allowed by the Additional Sessions Judge, Chakwal vide order dated 17-5-2010. Hence, this petition.

3. Learned counsel for the petitioner contends that the impugned order is against facts; law and principles of bail before arrest; that there was no mala fide or ulterior motive on the part of the police as well as complainant; that the detective sniffer dogs were procured by the complainant and after detection by the sniffer dogs, there is no doubt in the mind of the complainant that the accused/respondents Nos.1 and 2 were involved in this crime, that the recovery is yet to be effected from the accused/respondents Nos.1 and

2. He lastly prayed for cancellation of ad-interim pre-arrest bail already granted to the respondents Nos.1 and

2. Learned D.P.G. has adopted the arguments advanced by learned counsel for the petitioner/ complainant.

4. Learned counsel appearing on behalf of respondents Nos.1 and 2 submitted that at the time of incident both the accused/respondents were in Chakwal and in this behalf some notables of the city have sworn affidavits; that no local inhabitant was associated at the time of detection of sniffer dogs; that after 10 days of the confirmation of pre-arrest bail the witnesses joined the investigation and recorded their statements before the police. Learned counsel further stated that the complainant involved the respondents just to insult, humiliate and harass them with ulterior motive.

5. Having heard learned counsel for the parties and re-examining the material on file. I feel that submissions of learned counsel for the petitioner do not carry weight. Learned counsel despite his best efforts could not point out any infirmity or irregularity, legal or factual, warrant interference with the impugned order. Learned Additional Sessions Judge while granting the bail to the respondents has assigned sound and valid reasoning in paragraph No.5 of the impugned order, which is reproduced hereinbelow for facility sake:-- "Perusal of record reveals that although the accused are nominated in the F.I.R. but story of F.I.R. and stance of complainant is entirely based upon dogs detection evidence and especially he himself stated in the F.I.R. that he has strong doubt and benefit of doubt always goes to the accused/petitioner, at this stage, no direct evidence is available on the face of record. Tentative assessment of record clearly transpires that there is mala fide on the part of the police and ulterior motive of the complainant and unjustified reasons and there is apprehension of arrest of the accused/petitioners are previous non-convict. In the above said situation and observations ad interim bail already granted to the petitioners/accused is hereby confirmed." Admittedly the respondents Nos.1 and 2 were involved in the case only on the detection by the sniffer dog. The detection of sniffer dogs only creates a ground for the investigating officer to further investigate that who is the actual culprit and the Investigating Officer shall have to collect more evidentiary data for trial to prove the case against a particular person in Court, beyond shadow of doubt. But in this case no such substantive, corroborative or circumstantial evidence has been collected by the Investigating Officer. At the time of detection of sniffer dog no local inhabitant was associated. It is pertinent to mention here that complainant after confirmation of pre arrest ail of the respondents tried to create last seen evidence at belated stage by introducing two witnesses who sworn affidavits before Investigating Officer in this respect. If these witnesses had any knowledge of it, they should have appeared before Investigating Officer soon after the registration of F.I.R. which they have not done reasons best known to them. Challan has been submitted in the trial Court and trial in the case is likely to commence. There was element of mala fide on the part of the police as well as the complainant to implicate the respondents Nos.1 and 2 in the instant case. There appears no illegality in the order of learned Additional Sessions Judge and the exercise of the discretion is in accordance with law. It has been held in PLD 1995 SC 34, 1995 SCMR 1249, PLD 1996 SC 241 and 2002 SCMR 1304 that once a competent Court, in exercise of its discretion, has granted bail, very strong and exceptional grounds would be required for its cancellation.

6. In view of what has been mentioned above it is not a fit case for cancellation of bail. The petition being devoid of force is dismissed. A.R.K./A-172/L Petition dismissed.