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Criminal Miscellaneous No. 3307/B of 1972, decided on 11th April 1973.

---S.497(5)--Bail, cancellation of-Accused respondent charged far offence of murder released on bail but ever since -release intimidating and threatening prosecution witnesses-Sessions Judge refusing to cancel bail on ground that accused living 60 miles away could not be expected to come again and again and pressurise witnesses Respondent filing no counter-affidavit to controvert allegations of threat and intimidation and offering of threats by a person living 60 miles away being also not impossible, Sessions Judge's order held not justice-Bail cancelled.

K H. Khurshid for Petitioner.

Nemo for Respondents.

This is an application by Bashir Hussain son of Taj Din, for the cancella tion of bail before arrest granted to Sadiq Hussain Shah alias Sadiq by the learned Sessions Judge, Sialkot by his order dated 6-7-1372. He is accused alongwith three others, inter alia, of offences under section 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 ever since he was granted bail he has been threatening and subborning 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 is present. On the last date of hearing (i. e. 4-4-1973) the case was specially adjourned for notifying the learned counsel forth 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 seat to him by the High Court office informing him of this date, but he has not turned up today. I, therefore, proceed to bear 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 ever since he is released on bail he has been intimidating and threatening the prosecution witnesses. Affidavits of three prosecution witnesses, namely Javed Iqbal, 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 that 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 the 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 rte 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 of the matter, I am inclined to accept the application. The bail granted to Sadiq Hussain Shah is accordingly cancelled.

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