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Criminal Miscellaneous No. 381/B of 1977, decided on 30th June 1977

---S. 497(5)-Bail, cancellation of-Allegations that respondent threatened prosecution witnesses and misused concession of bail not proved satisfactorily-Part ascribed to respondent in F. I. R. merely that of a lalkara-No case for cancellation of bail, held, made out, in circumstances.

Muhammad Ashiq v. Muhammad Tufail 1977 S C M R 46 distinguished.

Ch. Ali Ahmad Sundhu for Petitioner.

Syed Iftikhar Hussain Gillani for Respondent No. 1.

Miss Parveen Zia for the State.

Date of hearing: 30th June 1977.

This is a petition for cancellation of bail allowed to Muhammad Nawaz respondent by the Additional Sessions Judge, Shiwal. A case is registered against the respondent along with four others under sections 302/34 and 148/149, P. P. C. The respondent was stated to be empty handed and the only part ascribed to him in the F. I. R. is that he raised a lalkara instigating the others to attack the deceased. The main culprits in this case are the co-accused, who is still behind the bars. The Additional Sessions Judge released the respondent on bail, because his prima facie plea of alibi was accepted. The present application is for cancellation of bail allowed to the respondent on the grounds firstly that the alibi plea should have not been accepted and the respondent should have not been allowed bail. It is further submitted in this connection that it was on the instigation of the respondent that the other co-accused had acted and, therefore, relying on Muhammad Ashiq v. Muhammad Tufail (1977 S C M R 46), he was not entitled to bail even otherwise. It was then submitted that the respondent had been misusing the concession of bail as he had attempted to threaten the eyewitnesses in this case not to depose as against the respondent and the co-accused. Learned counsel for the respondent has placed on record counter affidavit of the respondent. It is interesting to note that three of the alleged eye-witnesses in this case lodged reports with the police to the effect that they had been threatened by the respondent for not deposing in this case on the 24th of January, 1977, 5th of October 1976 and 11th of October, 1976. Muhammad Azam, Bhag and Muhammad P. Ws lodged these reports. On the record affidavits of Muhammad Azam and Muhammad P. Ws. have not been placed in support of these reports. However, Bhag P. W. has submitted an affidavit, which is placed on record, but in the same there is no mention of his earlier report to the police. He however, mentions another occurrence of threatening which took place on the 20th of January 1977. He states that he tried to save his life from the respondent by hiding himself in the shop of Nazir Ahmad. But there is no affidavit of Nazir Ahmad on the file. There are affidavits placed on record of Naseer Ahmad and Abdul Wahab P. Ws. They are written in the same hand and the same language has been used except the dates of threats are different. In the case of the affidavit of Nasir Ahmad the respondent in the presence of Peer Bakhsh made threats and Talib Hussain but these persons have not supported the affidavits. In the case of Abdul Wahab threats were offered by the respondent in the presence of Muhammad Siddique and Naseer son of Hayat, but their sworn statement are not on the record in support of the affidavit. In the counter-affidavit the respondent has denied that he had ever threatened the eyewitnesses. On perusal of the record. I am not satisfied that the allegation to the effect that the respondent has threatened the eyewitnesses in the instant case or that he had misused the concession of bail is correct. Furthermore, I am of the view that even if the learned Additional Sessions Judge had not considered the alibi plea of the respondent for allowing him bail, the part ascribed to him in the F. I. R. is It merely that of a lalkara and he could have been released on bail even on that ground. I have taken note of 1977 S C M R 46 placed before me by the learned counsel but the facts of that authority are different. In any case, no case is made out for the cancellation of bail. This petition is dismissed.

Petition dismissed.

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