This is a petition under section 497(5), Cr.P.C. By Munshi Khan, petitioner, for the cancellation of bail granted to Mazhar Hussain, respondent, by an Additional Sessions Judge of Gujranwala on 20-8- 1985.
2. With regard to an occurrence which took place on 25-8-1984, Mazhar Hussain, respondent, was mentioned in the F.I.R. As having instigated the other accused to commit the offence. The respondent was not present at the time of the commission of the offence, but it was alleged that, two days prior to the occurrence he was standing near the house of Intizar Hussain, co-accused, exhorting Intizar Hussain, Abbas, Tanveer, Sarfraz and Fateh Sher to take revenge from Bashir Hussain, deceased.
On behalf of the petitioner it is submitted that there is the evidence of Sultan Ahmad and Jahangir P.Ws., who heard the conversation whereby Mazhar Hussain, respondent, exhorted his other companions to murder Bashir Hussain, deceased. It is further stated that the car in which the co- accused fled from the place of occurrence belonged to the said respondent. It is lastly contended that the respondent was also arrested from the house of the co-accused.
3. On behalf of Mazhr Hussain, respondent, it is submitted that the trial has already begun and that though the witnesses were present on 22-12-1985, the case could not be taken up and they were bound down for 21-1-1986, on which date evidence is likely to be recorded. Citing Muhammad Sadiq v. The State 1980 SCMR 203 and Abdul Qadir v. Muhammad and another 1976 P Cr. L J 1203 it is submitted that to cancel the bail at this stage would pre-empt the trial, if not influences the trial Judge. On merits, it is submitted that both Sultan Ahmad and Jahangir P.Ws. Who are alleged to have heard the conversation, are the brother-in-law of Bashir Hussain, deceased, and ordinarily live ten to thirteen miles away from the place of occurrence and they were otherwise rot present but have been introduced to bolster the prosecution case. It is further submitted that the car in which the co-accused decamped does not belong to the respondent. It is lastly submitted that the arrest of the respondent, according to the police record, was made from the house of his sister.
3. I have given my anxious consideration to this case. Since the trial has already begun, I would not like to discuss the merits of this case at this stage. It is appropriate that the trial Judge be now allowed to finally decide the case. In this view of the matter, this petition is dismissed.