1. ' The respondent No.1 alongwith 4 other co-accused were involved in a double murder case 'of Crime No. 203 of 2002 of the Police Station Kamber. On 20-1-2003 this Court granted bail to the respondent No.1 on the grounds firstly that two versions were appearing in the case; one from the confessional statement of co-accused and second from the prosecution story and secondly mere allegation of instigation was levelled against respondent No. 1.
2. ' On 3-2-2003 the complainant of the case and the applicant Zulifqar Ali moved the present application under section 497(5), Cr.P.C. For cancelling the bail of respondent No.1 alleging that on 21-1-2003 at 8-30 a.m., he and Ali Gul were present at the Bus Stand Warah where the respondent No.1 and two unidentified persons armed with guns came there. They maltreated him and issued threats to withdraw the case otherwise he will meet with the same punishment. The applicant lodged such report at Warrah Police Station which was recorded in the station diary of the police station. In support of the allegation the applicant has filed his own affidavit, affidavit of Ali Gul Tunio, and affidavits of Mazahruddin and Abdul Ghani. The latter two witnesses stated that applicant informed them about the said incident. The applicant has also produced the copy of Station Diary in his support. The respondent No.1 appeared in person and through his advocate but no counter affidavit has been filed denying the allegations levelled by the applicant.
3. ' The learned advocate for the applicant has stated that after grant of bail, the respondent No.1 has misused the concession of bail by issuing threats to the applicant in presence of Ali Gul and such report was lodged at Police Station; and that the allegations are supported by the affidavits of above named witnesses.
4. ' On the other hand learned advocate for the respondent No.1 has stated that the respondent No.1 was released from jail on 26-1-2003; that it is not possible for the respondent No.1 to issue threats to the applicant just after two days of his release and that too at far a place from his village; that the police report is a managed document and the affidavits of independent witnesses who were available at the scene of incident have not been filed; and that the ground has been artificially created, therefore, prayed that the application may be dismissed.
5. ' Learned Asstt. A.-G. Has adopted the arguments of the advocate for the applicant and has further added that the respondent No.1 has misused the concession of bail; and that the allegations have been supported by the station diary and the affidavits of witnesses.
6. I have given due consideration to the arguments, gone through the affidavits and find that the threats issued by the respondent No.1 have been Supported by the affidavits of the applicant, Ali Gul and station diary of Police Station Warah. The affidavits have not been challenged by the respondent No.1 either by calling the applicant, Ali Gul and witnesses for cross-examination to deny the allegations, or controverted the same by filing counter-affidavit. As such the allegations levelled by the applicant and Ali Gul in the affidavits went unchallenged. The said allegations have been supported and corroborated by the copy of station diary which has been filed. As such prima facie the allegations levelled by the applicant have been established. Therefore, the respondent No.1 has misused the concession of bail.
7. ' In the cases of State v. Muhammad Hassan reported in PLD 1997 Karachi 554; Mst. Saira Bibi v. Allah Bux and others reported in NLR 1997 Criminal 358; Bashir Hussain v. Sadique Hussain reported in 197.6 PCr.L.I 609; Ghulam v. The State reported in PLD 1975 Lah. 301; bails granted to the accused persons were cancelled under the similar circumstances and grounds viz., threats issued to the witnesses which were proved through affidavits and not controverted by the accused persons.
8. ' A similar question arose before the Honourable Supreme Court of Pakistan in a case of Barkhurdar v. Kafayat Ali reported in 1997 SCMR 30. The facts of the case are that the accused was granted bail by the High Court. An application for cancellation of bail was moved on the ground that the accused had issued threats to the witnesses. The report of threats was lodged at the police station which was recorded in the station diary. The allegation was supported by the witnesses through affidavits but the accused did not file counter affidavit. In these circumstances the High Court declined to cancel the bail but the Honourable Supreme Court of Pakistan set aside the order of the High Court and cancelled the to the accused with the following observations:.
9. "The allegations made by the appellant that the respondents had threatened the witnesses, after they had been enlarged on bail by the High Court, were dully supported by the necessary affidavits, which affidavits were not controverted by the respondents. The affidavits were also corroborated by the report which the appellant had made at the police station on 23-11-1974."
10. ' In another case of Tanveer Ahmed v. Muhammad Sadique reported in PLD 1994 SC 88, the Honourable Supreme Court of Pakistan cancelled the bail of the accused on the ground of issuing threats to the complainant. The facts of the case are that accused was released on bail. After his release he approached the complainant party for compromise but they refused, therefore, the accused committed murder of the father of complainant and F.I.R. Was lodged with regard to said incident. The Honourable Supreme Court of Pakistan observed that the accused had misused the concession of bail with the .Following observation: "4. The learned counsel has also pointed out that after respondent No.1 was released on bail, he committed murder of petitioner's father as he had refused to accede to his demand for compromise of the case. In this regard, the learned counsel has filed F.I.R. Lodged by the petitioner against respondent No.1 dated 24-8-:1993. Be that as it may, the fact remains that the petitioner has succeeded in establishing that respondent No.1 has abused concession of to him. It is a well- Settled principle of law that granting of bail in a non-bailable offence is a concession allowed to an accused which implies that during his term of release on bail he would not misuse this concession or commit any crime. Where a person released on bail commits act of violence in revenge against the complainant, prosecution witnesses or the police, his bail is liable to be cancelled. But before cancelling bail on such grounds, there should be clear proof on record of the allegation of misuse of the privilege of bail. In the present case sufficient evidence to this effect has been brought on record which justifies cancellation of bail."
11. In the present case the allegations levelled by the applicant have been prima facie established,' therefore, the respondent No.1 has misused the concession of bail hence the to him is cancelled. He is present in Court on bail. He is taken and remanded to judicial custody with direction to Superintendent Jail to produce him before the trial Court on the date of hearing after obtaining such date from the trial Court. The application is allowed.
12. Bail cancelled.