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Criminal Miscellaneous Application No. 1130 of 19'79, decided on 3^rdJune, 1980.

----- S. 497 (5) read with Penal Code (XLV of 1860), S. 34-Bail, cancellation of---Common intention, application of-Main allegation of throwing acid, resulting in injuries caused to deceased and a pro secution witness, attributed to accused already in Jail while petitioners doing nothing except accompanying main accused and being present at vardat at time of occurrence-No specific allegation of tampering brought on record to suggest an abuse of concession of bail granted to such petitioners-Consideration of application of S. 34, P. P. C. at bail stage against petitioners, held, likely to prejudice whole case against them-Cancellation of bail granted to petitioners, declined, in circumstances.

Mohammad Ashraf Kazi with Ghulam Mustafa Memon for cant.

Allahdino G. Memon for Respondent No. 1.

Ghulam Ali Khokar for Respondents Nos. 2 and 3

Mrs. Salima Nasiruddin for A.-G. for the State.

The respondents herein, have been sent up for trial under sec tions 302/326 and 307/34, P. P. C. and the case is pending disposal in the Court of Ist Additional Sessions Judge, Karachi.

The respondents were first allowed pre-arrest bail on 23^rdSeptember. 1979, which was confirmed on 30th October. 1979. After the death of injured Nizamuddin on 9^thOctober, 1979, an application for cancellation of bail was filed by the applicant, which was rejected be the order dated 13th November, 1979 by the learned Ist Additional Sessions Judge, Karachi. Being aggrieved by and dissatisfied with the said order, this application has been filed in this Court for cancellation of bail granted to the respondents.

I have heard the learned counsel of the applicant and the respon dents. Mrs. Salima Nasiruddin appearing for the State has opposed the application.

According to the F. I. R. the case of the prosecution is that the applicant Mst. Khalida alias Sajida is the wife of deceased Nizamuddin, and daughter of respondent No. I and niece of respondent No. 2 and cousin-sister of respondent No. 3. She was first married to co-accuse Nasiruddin and had later on, obtained divorce and had married deceased Nizamuddin, which was disapproved by the respondents herein, who had given threats of killing both, the deceased, and the applicant.

On 18^theptember, 1979 at about 12 noon, the deceased Nizamuddin and P. W. Jamil were setting inside the house. Accused Nasiruddin, accompanied by all the three respondents, entered the house. Nasiruddin had a small bucket in his hand. He abused the deceased and asked for the applicant, saying, that they had come to kill both of them. The bucket contained and, Nasiruddin threw the acid on deceased Nizamuddin, who was injured. P. W. Jamil had also received injuries from the acid. They raised cries and the respondents had escaped. The applicant, who was resent in the house, first removed her husband to the Abbasi Shaheed Hospital, then went to New Karachi P. S. and lodged the F. I. R. at 1-30 p.m.

The grounds in support of the application are that the alleged crime was committed in broad day light, when it was not difficult to identify the culprits, who were already known, being closely related to the applicant and were named and assigned the specific role. The relationship of the respondents with the applicant is such that the false implication is ruled out. There is also the motive. It is also argued that in his dying declara tion the deceased had fully implicated .the respondents, which fact is supported by the injured P. W. Jamil, whose presence with the deceased is difficult to deny. Finally, it is submitted that the medical evidence corroborates the dying declaration and the eye-witness account.

The main allegation of throwing of acid, which resulted in the injuries caused to the deceased and P. W. Jamil, is against Nasiruddin, who is in jail and has not applied for bail. Except accompanying the main accused and being present at the vardat, at the time of occurrence, the respondents are not alleged to have done anything. No other overt act is attributed to them. Consideration of application of section 34, P. P. C. at this stage against the respondents is likely to prejudge the whole case against them whether the acid was thrown by co-accused Nasiruddin, in furtherance of the common intention of all the accused.

As regards the allegation of tampering of the prosecution witnesses, there are no affidavits filed in support, nor can that be a valid ground in this case, after such a long time. The respondents were allowed interim bail on 23^rdSeptember, 1979 and till today, no specific allegation of tampering had been brought on record, to suggest an abuse of the conces sion of bail granted to the respondents.

To cancel bail of the respondents, at this stage, would tantamount to an expression of opinion, on merits of the case, when the evidence of the prosecution, is yet to be recorded. The impugned Judge is neither perverse, arbitrary, fanciful or contrary to the record. There is, therefore, no reason to disturb it, at this stage. The application under the circumstances, is dismissed.

Nevertheless, if during the trial, evidence of complicity of the respon dents having acted in furtherance of the common intention of all, comes on the record, the trial Court shall be at liberty to cancel their bail.

Petition dismissed.

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