' This application under section 497(5) read with section 561 (A) of the Cr. P. C. Has been made for cancellation of bail of respondent No. 1 Ali Khan, which was granted to him earlier by this Court by an order dated 25-2-1976.
2. Respondent Ali Khan is facing trial for an offence under section 302, P. P. C. For which he was arrested on 9-6-1972. On that date he alongwith his companions had come to the Kalakot Police Station to lodge a report against one Bahadur Khan and while the S. H.
0. Of the Police Station was hearing and recording the said complaint, deceased Afzal Khan, being the partyman of Bahadur Khan along with others also came to the same police station and it is there that All Khan is said to have attacked Afzal Khan with a knife which resulted in his death. The S. H.
0. Of the Kalakot Police Station arrested Ali Khan for the offence of murder of Afzal Khan for which the trial is pending in the Court of Sessions.
' A counter case was filed by Ali Khan against Lal Khan, Sher Samad Khan, Shahmir Khan and Sahib Khan who were the companions of the deceased Afzal Khan. This was filed when Ali Khan was examined by the Jail Doctor and for the first time it was disclosed that he had also sustained one knife injury on his right buttock, abrasions on the back of the fore arm and that his left thumb had been completely dislocated.
' Apart from this another report under section 307/34, P. P. C. Was also filed by one Gul Rang who was the companion of Ali Khan, against Lal Khan, Shahmir Khan, Sher Samad Khan and Sahib Khan for the injuries that he had sustained, although the S. H.
0. Had accused All Khan for having caused these injuries to Gul Rang Khan who was his own companion. In these circumstances there was a case under section 302, P. P. C. Against Ali Khan and counter cases arising out of the same incident against Lal Khan and others which were pending in the Court below. Bail was granted by this Court to All Khan firstly on the ground of delay which was of about 4 years and also due to pendency of the counter cases in which the accused had been released on bail.
3. As the prayer in the present application was in terms, to reconsider the bail granted to Ali Khan and also for cancellation of that bail, I asked the learned counsel appearing for the applicant whether by "reconsideration" of the bail granted, he meant to attack the order of bail granted to respondent Ali Khan on its merits, to which his reply was in the negative expressing that he desired only to show that the respondent had abused the concession of bail allowed to him which should therefore be cancelled, and that he did not want to attack the merits of the grounds on which bail was granted to him. His arguments were also on that account confined to that limited question alone.
4. The alleged abuse of the concession of bail granted on 25-2-1976 to respondent All Khan is based on the following :-
(1) That immediately after his release on bail Ali Khan with the help of his associates Gul Rang Khan, Noor Khan, Abbas Khan and others went on threatening, with warning to the applicant i,e, Lal Khan that they would kill him.
(ii) That the applicant lodged report of this threat at Risala and Kalakot Police Stations.
(iii) That on the date of hearing of the case in the Court of the Additional Sessions Judge, Ali Khan and his above companions attacked the applicant i,e, Lal Khan. They were armed with revolvers but somehow the applicant got the opportunity to run away and lodged a report at the Risala Police Station, which resulted in proceedings under section 107/117, Cr. P. C. Being filed against respondent Ali Khan and his associates in the Court of S. D. M. City.
' The contention of the applicant, therefore, was that after the release on bail, respondent has abused the privilege granted to him and had "arranged the committing" of the murder of applicant i,e, Lal Khan, Sher Samad Khan and Sahib Khan who are witnesses in the case against him, and that proceedings would thus take further time, and steps were being taken to tamper and weaken the evidence in the case. It was contended that there was a likelihood of further murders being committed at any time.
' In support of this application a copy of the report No, 32 dated 28-2-1976 made by Lal Khan at the Pak. Colony Police Station and a report under section 107/117, Cr. P. C. Filed before the S. D. M., City Division by Bum Khan A. S. I. Risala Police Station at the instance of Sahib Khan, have been filed. In his first application made on the third day of the release of respondent Ali Khan applicant Lal Khan stated as under :- "On 25-2-1976 the accused Ali Khan is released on bail by Hon'ble High Court. Since Ali Khan has come out of jail many times he came to Adam Khan Road alongwith his brother Azam Khan. They used to flirt the witnesses and tried to make friendship with the witnesses who are of or caste and tribe. They as such are trying to hostile the witnesses of the case. Some time they used to boast before them. I am afraid in this way they are trying to hostile and keep them away from giving the evidence. I have come to inform."
' On this application the A. S. I. Directed him to approach the Court as no cognizable or non- cognizable offence appeared to have been made out.
' On 4-3-1976 Sahib Khan brother of the deceased Afzal Khan presented a written application at the Risala Police Station. In that application he alleged that he alongwith Sher Samad Khan and Lal Khan had come to give evidence in the Court of the third Additional Sessions Judge on that day but the case was adjourned to 13.4-76. When they came out, Ali Khan and his companions who had accompanied him threatened them saying that they had killed Afzal Khan at the Police Station and if they deposed against them they would kill them in Court premises. An inquiry was made by the A.
S. I. On this application and he concluded "that the Opponents are very dangerous and goonda type of persons and every respectable person is afraid of the opponents and if the opponents Ali Khan remained out then there is every likelihood of serious offence and as the accused and the witnesses have to appear in the same Court there is every likelihood of breach of peace."
' In these circumstances he filed a complaint under section 107/117, Cr. P. C. In the Court of the S. D.
M., City Division on 8-3-1976 i,e, for days after the date of hearing in the Court.
5. In reply to the notice issued to respondent No. 1 Ali Khan he denied the allegations as being false, and as being motivated to harass him, although he had been released on bail after a prolonged period of custody of for years. The, allegations according to him were vague and gave no details of time and place and in fact were based on shifting grounds from time to time. He disclosed that an application was also made by the present applicant Lal Khan in the trial Court, in the para. No, 4 of which, it had been stated : "That on the last date of hearing when the case was adjourned the accused and his companions pounced upon his witnesses and had taken out their revolvers but the witnesses somehow managed to run away from there and were out of danger which the accused and his companions had created."
' He also produced a report of the S, H. O. Risala Police Station dated 11-4-1976 in which it was stated that a report under section 107/117, Cr. P. C. Had already been submitted in the Court of S. D. M. to bind down both the parties for good behaviour and to maintain peace, which is pending.
According to respondent All Khan these documents were purposefully suppressed and not produced in this Court.
6. I have heard the learned counsel for the applicant and the respondent. I have also heard Mr. Murtaza Hussain who appeared for the State in this case. There can be no denial of the fact that if a person abuses the concession of bail by tampering or even attempting to tamper with the prosecution A evidence the concession so extended is to be withdrawn and such a person is to be remanded to custody. The observations of Din Muhammad, J., in the case Empress v. Jiwan Lal Guaba (1) may be quoted with advantage, that: "The granting of bail in a non-bailable offence is a concession allowed to an accused person and it presupposes that this privilege is not to be abused in any manner and that the accused person has not to come into contact with the prosecution witnesses or to exert any undue influence on them so as to destroy the evidence or to minimise its effect against him. It is a sort of trust reposed in him by Court and if it is found that he has betrayed this trust in any manner or that he has misused the liberty thus granted to him by Court, he disentitles himself to the privilege so granted.
This is more specially so, when he happens to occupy a dominating position in relation to the witnesses concerned and can injure or benefit them by his own fiat. It is no doubt true, as contended by Mr. Saleem, that the object of section 497(5) is not punitive, but it is equally true that the interests of the administration of justice demand that nobody should be allowed to impede the course of justice or hamper its administration in any manner."
' But this was a case in which the accused by his own statement had admitted that he had contacted the P. Ws., in the case, directly as well as indirectly and that he was a man of position and influence and the conclusion therefore was that an attempt to intimidate or terrorise the P. Ws.
Was proved.
7. The main question in the present case being whether by the material produced by the applicant Lal Khan it could be said that the allegation of misuse of the privilege, by tampering or attempting to tamper the P. Ws. Was proved, the learned counsel for the applicant referred to 1974 P Cr. L J 2 Note 3 at p. 2 in which case mere entries in the ruznamcha at a police station made at the instance of the witnesses that they were threatened, were considered sufficient ground for cancelling the bail, Mr. Murtaza Hussain appearing for the State also supported the applicant on the basis of that case. The facts of that case were that a co-accused in a murder case had been released on bail, as there was nothing to show in evidence that he knew that the principal offender would give the single blow, which resulted in death of the deceased. After the bail was granted to him, it was alleged that he had issued threats to a prosecution witness, and a report of that had been made of which there was an entry in the roznamcha of Kalakot Police Station. The witness himself also filed his affidavit in Court. Bail was, on that account cancelled and the learned Single Judge who passed this order observed a "The next ground for seeking the cancellation of bail of the accused/ respondents Nos. I to 3 herein is the allegation that these accused persons after their release have tried to tamper with the evidence of one witness namely, Ali Bahadur whom they all threatened not to give {{FOOT NOTE}}
(1) A 1 R 1936 Lah. 730 {{FOOT NOTE}} ' evidence against them and an affidavit to this effect has been filed on behalf of the petitioner by Ali Bahadur and this affidavit also discloses that Ali Bahadur had gone and reported about this threat by the three accused persons mentioned above to the Police Station Kalakot where his report was lodged in a roznamcha. The affidavit also says that the threat by the three accused respondents Nos. 1 to 3 herein was given to this witness Ali Bahadur in presence of Nawaz Tonga Stand Chowkidar and Najib Khan, But the last two mentioned persons have not filed their affidavits.
In opposition to the affidavit of the witness Ali Bahadur all the three respondents Nos. 1 to 3 accused have filed their own separate aiidavits denying the allegations of threat by them to the witness Ali Bahadur. On this ground it has been argued by the learned counsel for the three accused/respondents Nos. 1 to 3 herein that there is word of one witness against the word of the three accused herein, therefore, witness Ali Bahadur should not be relied upon in what he says and further also it is contended that on this ground the petitioner should move the Court which has granted them bail first and then move the High Court on the same ground. I, however, do not agree with these submissions as the power to cancel bail is a concurrent power resting both in the Court which grants bail and in the High Court, therefore, there is no bar to this Court considering the question whether on this ground the bail of the accused respondents Nos. 1 to 3 herein ought to be cancelled or not ? In my opinion, since Ali Bahadur has reported his threat given to him by the accused/respondents Nos. 1 to 3 at the Police Station Kalakot which report of his has been reduced in a roznamcha therefore, it seems that his allegation is quite correct which shows that the accused/ respondents Nos. 1 to 3 herein are abusing the concession of bail that has been granted to them and, therefore, this is a sufficient reason for cancelling their bail."
' This order, however, was challenged in the Supreme Court where bail was again granted to the 3 accused and was confirmed in Appeal No, K-4 of 1973.
8. In the case of Ghulam v. The State (1), the petitioner was granted bail on account of his old age which was 70 years, the only role attributed to him in the case being that of raising a lalkara. His bail was cancelled subsequently on the allegation that he was tampering with the evidence ; but the petitioner in that case himself admitted to have approached the complainant through his Pir and also a Panchayat. This admission amounted to proof of tampering with the evidence and the conduct of the petitioner in approaching the complainant through others was sufficient to show that. Accused persons cannot be encouraged to approach prosecution witnesses out of Court. The learned counsel for the applicant also referred to cases, PLD 1963 Lab. 118, PLD 1974 Lah. 476, PLD 1956 FC 117 but they are not directly in point as in those cases the question of proof of tampering was neither involved nor considered.
9. Mr. Muhammad Ibrahim Memon the learned counsel for the respondent has relied on King- Emperor v. Nga San Hiwa and others (1), which case deals with the considerations that weigh with Court for granting bail to the accused. He referred to the observation, that mere vague allegations that the prisoner if released will tutor witnesses should not be taken into account and contended that in the present case also the allegations made {{FOOT NOTE}}
(1) PLD 1975 Lah. 301 (2) AIR 1927 Rang. 205 {{FOOT NOTE}} against the respondent were vague and did not supply any details. But evidently this case does not deal with the question of cancellation of a bail that is already granted, on the ground of an allegation of tampering with the evidence. The next case referred by him is D. R. Guru v. Emperor (1), in which the above cited Full Bench case of Rangoon High Court was followed. In this case the accused had been released on bail by a City Magistrate and the prosecution applied to the Sessions Judge against the said order and the latter cancelled the order of the City Magistrate and recommitted the accused to custody. Amongst others the Sessions Judge said, "It is still urged by the learned Public Prosecutor and I consider with some justification that if the accused are released on bail the evidence is likely to be tampered with, I do not think this is a fit case for allowing bail to the accused." The High Court gave time to the prosecution to ascertain the exact nature of the apprehension on the part of the Public Prosecutor, that if the accused was released on bail he was likely to tamper with the prosecution evidence. An affidavit sworn by the Investigating Officer was filed in which amongst other facts it was stated that the accused was a wealthy and influential man and if he was let out on bail he might win over the witnesses for the prosecution. This ground however was not considered to be sufficiently cogent and convincing by the High Court, and it was observed, "We have no material before us which would show that the applicant is a man of bad character or is likely to in timidate or otherwise likely to win over prosecution witnesses to his side." The principle laid down in the F. B. Case, AIR 1927 Rang. 205 was also followed in Emperor v. Mohammad Pannah (2), and it was observed, "Magistrates are bound to consider whether a prisoner if released will suborn evidence and they may well refuse to enlarge on bail the prisoner who is of such character whose presence at large will intimidate witnesses."
The next case cited by the learned counsel was Emperor v. Rani Abhairaj Kunwar (3), in which also it was alleged that if the accused was released on bail he would tamper with the prosecution evidence. The Court in that case examined the evidence already recorded and came to the conclusion that there was no material pointed out by the prosecution to show that some witnesses who had actually altered their statements had so done on account of the pressure or threat put on them. It was observed, "All the important Witnesses for the prosecution have already been examined and if they are witnesses of the type who are prepared to change their statements on receipt of a few hundred rupees, they will do so whether the Raj Mata and Kunwar Sahib are on bail or are in the lock-up. If the accused are in the lock-up there is no doubt that they have got a host of people looking after the case who are just as capable of tampering with the evidence as the accused themselves. It is my duty to see that both sides are not hampered. I must see that the Crown does not get a free hand and the accused are locked up or hampered in their defence simply on the ground that it is alleged or feared that they will tamper with the evidence." The learned counsel then referred to Shah Mohammad v. Mohammad Yousuf (4) decided by the Supreme Court of Pakistan. In that case bail was granted to an accused who was being tried under sections 363, 366 and 37e, P. P. C. And was confirmed by a Single Judge of the High Court, who repelled the contention raised on behalf of the State that (accused) respondent No. 1 was tampering with the evidence of the prosecution. In this connection it had been observed that only the police officer or the doctor besides two sisters of the prosecutrix were to be examined and it was difficult {{FOOT NOTE}}
(1) AIR 1927 Bom. 484 (2) AIR 1934 Sind 131
(3) AIR 1940 Oudh 8 (4) 1970 P Cr. L J 1017 {{FOOT NOTE}} ' to understand that respondent (accused) would threaten these persons. The Supreme Court had declined to interfere with the above said order.
10. I have carefully considered the facts of the present case and the law quoted by learned counsel on either side. It appears to me that while the consensus of judicial opinion has consistently been that the accused cannot be allowed to enjoy the privilege of bail in case of subsequent misbehaviour and of taking undue advantage of the liberty granted to them, the Courts while considering the question of cancellation of bail on such a ground, as an allegation of tampering with the evidence, have always looked out for material and substance in support of such an allegation.
' Bail is not cancelled on mere making of such allegations but is cancelled only in cases where there exists proof of the alleged misconduct of the accused. Tampering of evidence may be by pursuasive methods such as inducement, by exercise of influence personal or otherwise, or winning the witnesses over by offering them money consideration, or it may even be by intimidating and compelling them by threats or show of force. But if any action is to be taken on the basis of any such allegations the Courts have always insisted on proof Of the same, which irrespective of the manner used, may well be within the meaning of the terms used in the Evidence Act. There are cases where the accused admit to have acted in a manner violating the grace shown to them and in such cases no further proof may be required but in all cases of absence of proof the Courts have declined to interfere with the liberty once granted to the accused.
11. In the present case no affidavits of the witnesses have been filed to support the allegations made against the respondent. Even the versions about the method employed for tampering are of contradictory nature. At one stage the applicant stated that the respondent was "flirting and making friendship" with the witnesses while at another stage it was alleged that the respondent and his companions attacked the witnesses with revolvers within the very Court premises after the case was adjourned by the trial Court. It was there that the applicant and the other witnesses were fortunate to have escaped safely. A cognizable offence was thus committed but the Police Authorities on being approached chose only to file proceedings under section 107/117, Cr. P. C. For the maintenance of peace. According to the counsel for respondent the S. D. M. In whose Court proceedings were filed was requested by the Police, to bind down both the parties for the above conduct. Admittedly there are counter cases pending against both the parties and for serious criminal charges ; and in such circumstances the allegations of this nature are not difficult to make. But they still need to be proved. A mere entry in the roznamcha or filing a report by a police officer for maintenance of peace at the instance of one party or even a witness, would not serve the purpose of supplying a reasonable and sufficient ground for cancelling and interfering with the bail granted by a Court of law. If such entries and/or reports be accepted as grounds for cancelling the bail by themselves, this would tantamount to giving a handle to the parties or to the police to undo what a superior Court of law may have done in the matter of bail. It is, therefore, hazardous to rely on such reports without actual proof of those facts in Court, which in the present case is totally lacking.
12. I, therefore, do not find any reason to cancel the bail granted to the respondent and this application is, therefore, dismissed.