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Criminal Revision Application No. 63 of 1976, decided on 8th July 1976.

S. 497(5)-Provisions regarding cancellation of bail-Not avail able to private parties to satisfy their grudges or to use as a means of wreaking their vengeance-Remedy, however, available in cases where reliable evidence forthcoming .to indicate misuse of liberty to direct course of justice-Bail cancelled on grounds of reports of private individuals and non-appearance of petitioner at time of hearing-veracity of such reports not above board and no specific direction given to petitioner to remain present at time of hearing but represented by counsel-Court, held, had no jurisdiction for cancelling bail, in circumstances-Order set aside.-[Bail].

S. Nasiruddin for Applicant.

Ahmed Sadik for Respondent No. 2.

Sattar A. Sheikh, Asstt. A.-G. for the State.

The petitioner in this revision application is facing trial for an offence under section 307, P. P. C. The brief facts of the case are that there was litigation between applicant and injured Nazir Ahmad prior to the incident in this case. On 13-12-1975, at about 8-30 p. m., injured Nazir Ahmad along. With Zafar Iqbal was passing near the police Headquarters when the applicant who was a police constable overtook them from behind and threatened Nazir with death. Immediately thereafter, it is alleged, that the applicant assaulted Nazir Ahmad with a knife and hit him on left side ribs. On this, complain ant Iqbal raised cries, which attracted people who intervened. After usual investigation the applicant was sent up to Court under section 307, P. P. C., which case is pending trial

2. On 27-1-1976, the VI Additional Sessions Judge, Karachi, granted bail to the applicant on the ground that the applicant had lodged a report with the police regarding the same incident prior in time than the report lodged by Zafar Iqbal against the applicant. In this report the applicant had alleged that he had received injuries in the incident. Learned Additional Sessions Judge, therefore, took the view that the question as to who was the aggressor in the incident is yet to be determined and on this basis granted bail to the applicant.

3. Injured Nazir Ahmad thereafter moved for cancellation of bail granted to the applicant on the allegation that after being released the applicant had indulged in threatening the complainant and in jured Nazir with dire consequences if they persisted in giving evidence against him. In this connection, it was alleged that Nabi Bux Police Station registered two F. I. Rs. and Garden Police Station on 11-2-1976 and 13-2-1976 at the instance of injured Nazir Ahmad and complainant Zafar Iqbal respectively.

4. By the impugned order dated 31-3-1976, learned V Additional Sessions Judge, Karachi, cancelled the bail of the applicant and ordered non bailable warrants to issue against him. The main grounds which found Favour with the learned Sessions Judge were that the reports filed with the police by the complainant and injured were ample proof of the fact that the applicant had in fact violated the trust reposed in him by 1110 Court, and that he had harassed the witnesses and tried to tamper with the evidence and finally that the applicant had remained absent during the hearing of the cancellation application:

5. 1 have heard learned counsel for the applicant, learned counsel for injured Nazir Ahmad, and the learned Assistant Advocate-General.

6. Learned counsel for the applicant contended that the settled principles for cancellation of bail require that there should be substantial evidence produced before tile Court showing that the accused, who has been granted bail was misusing the concession by suborning the witnesses. Counsel urges; in this case that there is a total lack of such evidence, in so far as no affidavits whatsoever were filed to establish the fact that the applicant had threatened the witnesses. He forcefully contended that the learned Additional Session Judge was not justified in taking into consideration the ground that the applicant had not personally appeared in Court at the time of the hearing of cancellation application.

7. Learned counsel for the respondent No. 2, in reply, supported the impugned order and submitted that to view of the admitted position that prior to the first incident litigation between the parties was pending, and the applicant having once acted criminally, there was no reason to disbelieve the fact that the applicant had threatened the witnesses which was borne out by the police reports.

8. Now the only ground urged in support of the cancellation application was that on two occasions the applicant had threatened the witnesses. The Copies of the police reports were not placed on record of this case, however, learned counsel for respondent No 2, read out to me the contents or the two reports and 1 have perused copies of these so-called h. I. Rs. These are not F. I. Rs as termed by the learned Additional Sessions Judge but appear to be non-cog. Reports registered by the police. The allegation made in the report lodged by the complainant Zafar 1qbal was that he was merely abused by the applicant, but I do not find anything to the effect that the applicant was alleg ed to have threatened the complainant to desist from giving evidence in the case. Accordingly, this report does not help the respondent No. 2. However, the report lodged by respondent No. 2 Nazir Ahmad does contain an allegation that he was threatened not to give evidence in the case. I was not told of the action the police has taken pursuant to these reports. Normally, it was for the State to have investigated these allegations and if there was any truth therein, to have moved for cancellation for bail. But, it appears that the State has not taken note of these reports as the prosecution thereto took no action pursuant. The learned Asstt. Advocate-General also does not support the impugned order. In his view, there was not sufficient material before the learned Additional Sessions Judge to come to a finding that the applicant had mis-used the concession of bail.

9. It was the duty of respondent No. 2 to have filed his own affidavit and the affidavit of any person who may have witnessed the two incidents when the applicant is said to have threatened the respondents. In absence of any evidence to that effect the mere fact that certain reports were made to the police, in my opinion, is not sufficient to resort to the drastic action of cancelling the bail. Once the accused person is admitted to bail, he cannot be deprived of his liberty without there being tangible evidence to the effect that he misused that liberty to the prejudice of due administration of justice. The provision regarding cancellation of bail cannot be made available to private parties to satisfy their grudges against each other or to use as a means of wreaking their vengeance. Of course in cases where there is reliable evidence that the accused was misusing the liberty to divert. the course of justice the Court would be competent to deprive him of that privilege. I am, therefore, clear in my mind that the reports constitute merely allegation by private individuals, the veracity of which was not above board as no evidence was produced iii support of the facts before the learned Sessions Judge. I also find no justification for cancelling bail of the applicant appearance at the time of hearing of the for his non appearance application as he was represented by counsel and there appears to be no specific direction given toy him to that effect.

10. In the result I accept this revision and set aside the impugned order' dated 31-3-1976. The consequence is that the applicant shall be released on, furnishing fresh surety in the sum of Rs. 10,000 and P. R. in the like; amount to the satisfaction of the Sessions Judge, Karachi. It would, however, be open to the Sessions Court, in case the applicant attempts to tamper with evidence or on other lawful grounds, to cancel his bail, if proper evidence to that effect is produced.

Petition allowed.

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