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Criminal Miscellaneous Application No. 141 of 1986, decided on 27th April, 1986.

‑‑‑S. 497(5)‑‑Bail, cancellation of‑‑Complainant who was injured and admitted in police hospital alleging that accused extended threats against him‑‑Presence of witnesses before whom threats were extended not mentioned in affidavits filed in support of such contention‑‑No reports filed with police about threats‑‑Affidavits of Police Officers and Incharge of hospital who were mentioned in memorandum of application for cancellation of bail as persons to whom complaint was made by complainant about threats, not produced‑‑Allegation made by complainant about threats being not free from doubt, application for cancellation of bail dismissed.

Raja M. Aslam Kiyani for Applicant.

Munawar Malik for Respondent No. 2.

M.I. Memon, A.A.‑G. for the State.

This is an application for cancellation of bail filed by complainant. Bail was granted to respondent Hasan Badshah who is driver of the Bus vide order of this Court passed on 26‑8‑1985. Application for cancellation of bail is filed on 27‑1‑1986. One ground for cancellation of bail is that according to the Challan the offence is under section 307, P.P.C. and complainant Allah Bux who is Head Constable, Traffic Police sustained grievous injury. This point was considered and then bail was granted as this has to be decided by the trial Court as to what section would apply whether it would be 307, P.P.C. or 338 P.P.C. which is bailable. Outwardly it appears to be an accident case.

Another ground urged is that respondent is making frantic efforts to tamper with evidence. It is stated in paragraph 9 of the application for cancellation of bail filed in this Court that respondent came in the police hospital on 13‑1‑1986, 16‑1‑1986, 17‑1‑1986 and 23‑1‑1986 alongwith five persons and gave threats to the complainant that if he did not compromise and withdraw the case from the lower Court, he shall face dire consequences. Complainant immediately intimated S.H.O. Inquiry Officer and Traffic S.P. namely Sardar Abdul Aziz of West Division Karachi and also Incharge of the hospital but no action had been taken so far. This application for cancellation of bail was filed on 27‑1‑1986 and before that no F.I.R. was lodged with police on the ground that complainant was being threatened. It may be mentioned here that complainant Allah Bux is Head Constable in the police and according to him after the incident of this case he was admitted in police hospital from 18‑11‑1985 to 18‑3‑1986 and respondent who is driver of a Bus came and threatened him in the police hospital on the dates mentioned above. Complainant in the memorandum of application for cancellation of bail had not given the names of witnesses, who were present when the threats were extended and subsequently has filed in this Court seven affidavits complainant Allah Bux has himself filed affidavit which is attested on 17‑4‑1986. He has alleged therein that witnesses Misaldin and Abdul Razaq were also threatened but has not mentioned presence of witnesses before whom threats were extended to him by respondent Hasan Badshah. He has covered four dates mentioned in paragraph (9) of the memorandum of application. Misaldin has filed affidavit on 12‑3‑1986. He is a constable and a witness in this case. He has covered only two dates that is 16‑1‑1986 and 17‑1‑1986 Abdul Razak has filed affidavit, dated 12‑4‑1986. He is a Constable and P.W. in this case. According to him on 8‑1‑1986 at 2.30 p.m. he was on duty when respondent Hasan Badshah came and threatened him. Abdul Waheed in his affidavit dated 12‑4‑1986 stated that he was admitted in police hospital as patient and on 23‑1‑1986 respondent came in the hospital and threatened the complainant. Muhammad Ramzan in his affidavit, dated 12‑4‑1986 has stated that on 17‑1‑1986 he was present in the hospital when respondent came alongwith five Pathans at 5‑30 p.m. and extended threats to the complainant. Shamshad Ali who is a civilian has stated in his affidavit, dated 12‑4‑1986 that respondent came to the hospital on 13‑1‑1986 alongwith six Pathans and gave threats to the complainant. He has also admitted in the affidavit that he gives tuition to the four children of the complainant and had come to see the complainant in the hospital. Faridoon in his affidavit dated 12‑4‑1986 has stated that he was admitted in the hospital and was present on all the dates when respondent came alongwith 5 or 6 persons and threatened the complainant. 1n all these affidavits the presence of other witnesses before whom threats were extended is not mentioned. They did not go to the police station and did not file reports with police about the threats. It is not free from doubt that a driver of the Bus would go to the Police hospital in the Police Headquarter and would threaten the complainant who is Head Constable of the police and would get away with that. Affidavits of S.H.O. Inquiry Officer, Traffic S.P. and Incharge of the hospital have not produced' although they are mentioned in paragraph (9) of the memorandum of application for cancellation of bail as persons to whom complainant complained about the threats.

Mr. M.I. Memon, A.A.‑G. for the State has stated that he does not support application for cancellation of bail as there is no material to show that threats were extended.

For the facts and reasons mentioned above, application for cancellation of bail is dismissed but it is left open to the trial Court that if it comes to the conclusion at any stage that section 307, P.P.C. will apply, then bail of respondent can be cancelled by the trial Court.

M.Y.H./A‑36/K Petition dismissed.

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