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Criminal Miscellaneous No. 3307/B of 1972, decided on 11th April 1975.

‑‑‑ S. 497(5)‑Bail, cancellation of ‑[Murder‑case]‑‑Accused holding deceased in fold while co‑accused causing his death by giving knife injury ‑ Accused intimidating and threatening prosecution witnesses since his release‑Mere fact of accused residing at a place some 68 miles away from place of incident‑No ground for believing that accused could not come and threaten prosecution witnesses‑Bail granted earlier cancelled, in circumstances‑Penal Code (XLV of 1860) S. 302/34.‑[Bail].

K. H. Khurshid for Petitioner.

Nemo for the State.

This is an application by Bashir Hussain son of Taj Din, for the cancellation of bail before arrest granted to Sadiq Hussain Shah alias Sadiq by the learned Sessions .fudge, Sialkot by his order dated 6‑7‑1972. He is accused alongwith three others inter alia, of offences under sec tion 302/34, P. P. C. The petitioner first applied for the cancellation of Sadiq Hussain Shah's bail, to the Sessions Judge, Sialkot on the ground that eversince he was granted bail he has been threatening and suborning the prosecution witnesses. The learned Sessions Judge, however, dismissed the application by his order dated 23‑9‑1972. Hence the present application.

2. The case has been called out. The learned counsel for the petitioner is present but neither the counsel for the respondent nor the State counsel, are present, On the last date of hearing (i. e. 4‑4‑1973), the case was specially adjourned for notifying the learned counsel for the respondent, who is an outside counsel, so that he may be able to file a counter affidavit, if so instructed by his client. A registered letter was sent to him by the High Court office informing him of this date, but he has not turned up today. I therefore, proceed to hear the case on merits. The role attributed to the petitioner is that while he held the deceased in a japhha his co‑accused inflicted knife injury on the deceased causing his death on the spot. It is contended that eversince he is released on bail he has been intimidating and threatening the prosecution witnesses. Affidavits of three prosecution witnesses, namely Javed lqbal, Ghulam Sarwar and Muhammad Afzal have been filed in support of that contention. The learned Sessions Judge in his order dated 23‑9‑1972 observed since Sadiq Hussain Shah (respondent) lives at Kala Shah Kaku about 60 miles away from Sialkot, he cannot be expected to come time and again and put pressure on the witnesses. It is primarily for this reason that the learned Sessions Judge dismissed she petitioner's application for cancellation of the bail. In the first place no counter affidavit has been filed on behalf of the respondent to controvert the contention that he is putting pressure on the prosecution witnesses. Secondly, the mere fact that he resides at a place 60 miles away from Sialkot, is not a sound reason for holding that he cannot come and threaten them at Sialkot. In this view the matter, I am inclined to accept the application. Tie bail granted to Siddiq Hussain Shah is accordingly cancelled.

Petition allowed.

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