' This is an application under section 498(5) of the Code of Criminal Procedure, 1898, praying for cancellation of bail of respondent No, 1, Ncor Muhammad Khokhar, to whom bail was granted by the learned Sessions Judge, Nawabshab, vide his order dated 22-3-1976.
2. The respondent No, 1 has been challaned alongwith one All Sher under section 302 read with section 34, P. P. C. For allegedly committing murder of one Falak Sher. The death of Falak Sher was a result of knife injury caused to him by co-accused All Sher. So far as respondent No, 1 is concerned, it is alleged that he had caught hold of the neck of the deceased with a turban and had also given him slaps.
3. The learned Sessions Judge granted bail to respondent No, 1 on the ground that the knife with which the fatal injury was caused to the deceased was taken out by co-accused Ali Sher from the folds of his trousers and therefore there was a reasonable possibility that respondent No or Muhammad may not have known that Ali Sher was armed with a knife or intended to cause any fatal injury to the deceased. In coming to this decision, the learned Sessions Judge relied upon a Lahore decision reported in 1975 P Cr. L J 1165. In the reported case also the co-accused was challaned under section 302 read with S. 34, P. P. C. And the allegation against him was that he was with the co-accused when the latter took out a knife from the folds of his trousers and stabbed the deceased. Bail was granted to the co-accused in the reported case in view of the concealment of the murder weapon in the folds of the trousers of the co-accused.
4. Mr. S. M. Abbas, the learned counsel for applicant Humayun, who is the first informant in this case, has urged that bail granted to respondent No, 1 be cancelled on the grounds-
(1) that this respondent came alongwith the co-accused ;
(2) that there is evidence to show that he tightened the neck of the deceased with a turban and also gave him slaps ; and
(3) that after his release, respondent No, 1 has been threatening the applicant and the witnesses and has also given out that he would abduct the sister of the applicant.
5. The learned counsel for the applicant also sought to distinguish the case relied upon by the learned Sessions Judge on the ground that no overt act was attributed to the accused who was granted bail in the reported case. This contention of the learned counsel does not appear to be correct. From the perusal of the order in the reported case, it seems that there was an allegation that he was armed with a whip and that the first informant had caught hold of it when the accused was attempting to use the same.
6. The mere fact that respondent No,1 had caught hold of the neck of the deceased with a turban or had slapped him does not necessarily lead to the inference that respondent No, 1 had a common intention with Ali Sher to kill the deceased. The main question in the case is whether respondent No, 1 was aware that Ali Sher was armed with a knife and that he intended to cause fatal injuries to the deceased. I do not wish to comment on this aspect of the case except to the extent that the contention that he may not have, had this knowledge is not entirely without substance.
7. So far as the allegation of threats held out by respondent No, 1 is concerned, there is no material before me in support thereof. No, complaint in respect of these threats appears to have been made either to the lower Courts or to the police.
8. In the circumstances, I do not consider that there is any merit in the application, which is dismissed in limine. I may add at the end that if at any later stage it is found that the respondent No, 1 has been misusing the grant of bail to him or that there is evidence to show that he shared a common intention with the co-accused to kill the deceased, it will be open for the trial Court to cancel the bail granted to him.