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------- S. 497(5)-Bail (cancellation of)-Sessions Judge admitting accused to bail on Investigating Officer's statement that case was doubtful- Contention that lower Court should not have relied upon such, statement in admitting accused to bail-Held: It was not correct to depend upon ipse dixit of police, yet bail within discretion of Court to be decided on facts and circumstances of each case-Material for bail only an uncertified copy of F. I. R.-Police challan not yet submitted-Copies of statements of witnesses recorded by police also not yet produced' Material on record being insufficient and petition for cancellation of bail too being premature-Petition dismis sed with direction to agitate matter after challan was admitted or at later stage as and when so advised-Penal Code (XLV of 1860), S. 302/452/120-B.

Manzoor and 4 others v. State P L D 1972 S C 81 and, Rehmat Ollalv v. The State 1970 S C M R 299 ref.

Anwar Ahmnd Wnrnich for Petitioner.

This is a petition for cancellation of bail granted by the learned Sessions Judge in a murder case. It is mentioned in the order that the D. S. P., who had himself investigated the case, appeared before the learned Judge and stated that "according to him, the case against Abdur Rehman and, Hafiz Muhammad Ilyas petitioners (respondents herein) is doubtful". The learned Judge further remarked that the D. S. P., came to this conclusion after "examining the witnesses produced by the complainant".

2. The only other material placed on this file for consideration of question of cancellation of bail is an uncertified copy of the F. I. R. When questioned about the challan report, learned counsel stated that the same has not been submitted before the learned Magistrate. Copies of statements made by the witnesses under section 161 and/or 164, Cr. P. C., mentioned in para. 7 of the petition have also not been produced. I pointed out to the learned counsel that the petitioner could have waited till the submission of the challan report by the police because the final report could be of great assistance in resolving the question of cancellation of bail; as, in my view, the principles applicable for cancellation of bail, after once a Court of concurrent jurisdiction (as the Sessions Court is under section 498 read' with section 497, Cr. P. C.) has granted the same, are different from those applicable at the time of allowing the bail. But the learned counsel relying on observations by their Lordships of the Supreme Court in Manzoor and 4 others v. State (PLD 1972SC81) contended that the Court cannot, make the opinion of the police, as basis for grant of bail in a murder case.

3. It is correct that their Lordships did observe in the cited case that it is "not correct to depend upon the ipse dixit of the police regarding the guilt or innocence of an accused person even in matter of deciding the question of his bail" but their Lordships observed in the same case that "as repeatedly held by this Court bail in non-bailable cases is a matter within the discretions of the Courts, which has to be exercised with due care and caution on the facts and circumstances of each case". It would, therefore, not be correct to say that their Lordships have once for all decided that the opinion of the police is not a relevant consideration for the purpose of deciding the question of bail. This view about the interpreta tion of their Lordships' ruling finds support from the following observations made in another Supreme Court ruling, namely, Rehmat Ullah v. The . State (1970SCMR299) :-----

"This seems to us to be a case in which the guilt of the appellant certainly requires further investigation and inquiry to entitle him to bail under section 497(3) of the Criminal Procedure Code. The opinions of the investigating officers certainly ado not constitute legal evidence, but being adverse to the prosecution, they put one on an inquiry as to the veracity of the prosecution case. The question of the vicarious liability of the appellant in regard to the commonness of his intention with his co-accused for firing at Bakhsha and its further extension to the result that followed namely, the death of Mst. Fatima, will have to be determined at the trial to see if his guilt under section 302/34, P. P. C. is, established as alleged by the prosecution."

'it may be stated here that in that case the High Court having mentioned that three successive investigating officers had found the petitioners before their Lordships to be innocent, had held that the opinion of the police not being legal evidence and the charge being one of murder bail could not be allowed except in exceptional and special circumstances. Their Lordships of the Supreme Court however, allowed ad interim bail at the time of granting leave in that case and ultimately, as quoted above, set aside the judgment of the High Court whereby the bail allowed by the learned Sessions Judge had been cancelled.

4. In the light of the above discussion, I do not agree with the argument of the learned counsel that the learned Sessions Judge could not at all have relied upon the police opinion. But at the same time, it needs to be remarked here that this should not be treated as final determination of the question of cancellation of bail on merits because, as pointed out above, on this petition the material is insufficient and otherwise too the petition appears to be premature because the challan has not yet been submitted. This petition, therefore, is dismissed in limine with the remark that the petitioner would be at liberty to move for cancellation of baill8 after the submission of the challan, or, if so advised, after the examination, of some witnesses by the committing Magistrate, even before the same' learned Judge who granted the bail. It will be competent for the learned Judge to cancel the bail, inter'alia, on the ground, if then available, that the opinion of the police in favour of)the accused was mala fide and/or: was based on fraud or is otherwise found arbitrary when placed in juxta position to the material brought before the Court.

S. A. H. Petition dismissed.

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