' This order would dispose of petition filed by Sardar Khan against Muhammad Fazil, Hakim Ali, Inayat and Shahalam alias Shahaloo respondents, under section 497(5), Cr. P. C. For the cancellation of their bail which was allowed by this Court, on 23-11-1976.
2. On 20-1-1976, at 9-30 p.m., a case was registered at Police Station, Dinga, under sections 148, 302/149, P. P. C. On the statement of Sardara. According to the complainant, the above-mentioned accused respondents, their co-accused Muhammad Ismail and Muhammad constituted an unlawful assembly and in the prosecution of the common object of said unlawful assembly, committed the murder of Mst. Said Begum by firing gunshot. It was alleged in the F. I. R. That Shahalam respondent gave out lalkara and in the meantime, Muhammad Ismail co-accused fired gunshot which hit Mst. Said Begum on the right jaw who fell down and died at the spot. The respondents moved bail petition which was accepted by this Court vide order dated 23-11-1976.
Reliance was placed on case titled Sardar Khan v. The State (1). It was held by their Lordships that "where an accused is attributed the role of an instigator which is commonly alleged against persons to implicate them otherwise, his case is covered by section 497(2), Cr. P. C. And he is entitled to bail". In the present case, no overt act was attributed to Hakim All Fazil and Inayat respondents. Shahalam respondent had {{FOOT NOTE}}
(1) 1976 SC MR 171 {{FOOT NOTE}} been attributed the role of an instigator. Sardar Khan petitioner had applied for the cancellation of the bail of the respondents on the ground that they were misusing the co cession of bail by tampering with the prosecution evidence. An allegation had been levelled that the cattle of Fazal Dad, Mehdi and Hakim Ali had been impounded in the cattle-pound at Bhau Ghasitpur Khohar on 12-12-1976, .17-12-1976 and 31-12-1976. It was also alleged that the respondents administered threats to the prosecution witnesses and when the local police was approached, the police instead of taking action against the respondents, took up, security proceedings against both the parties and submitted calendaras before a Magistrate at Kharian.
' Notices were issued to the respondents who filed a joint affidavit. The respondents denied the allegations levelled against them and stated that they had not held out any threat to the witnesses. They further denied that they had impounded the cattle of the above-mentioned prosecution witnesses at the cattle-pound. They filed two certificates of the Secretary, Union Council Khohar, who testified that Inayat and Muhammad Fazil respondents had not brought the cattle to the cattle-pound. It was the case of the respondents that Sardar Khan moved petition for the cancellation of bail on the basis of forged entries in the cattle-pound register and the security proceedings so that the cross complaint against him, Shahalam, Mehdi P. Ws. And others was not pursued. It was revealed by the respondents that Sardar Khan complainant, Shahalam, Mehdi P.
Ws. Had been summoned through non-bailable warrants in the cross-complaint under sections 148, 307/149, P. P. C.
3. The most material point for determination arose as to whether under section 497(2), Cr. P. C.
Could be cancelled under section 497(5), Cr. P. C. On the ground of tampering with the prosecution evidence. The learned counsel for the parties were not able to lay hands on any authority applicable to the legal proposition involved. It was contended by the learned counsel for the petitioner that under section 497(2), Cr. P. C. Is subject to the provisions of subsection (5) of section 497, Cr. P. C. And the right under section 497(2), Cr. P. C. Is qualified and not absolute. It was argued by the learned counsel for the respondents that bail allowed under section 497 (2), Cr. P. C. Could not be cancelled under section 497(5), Cr. P. C. For the reason that the accused had tampered with the prosecution evidence.
4. It is provided in section 496, Cr. P. C. That "when any person other than a person accused of a non-bailable offence is arrested or detained without warrant by an officer-in-charge of a police station, or appears or is brought before a Court, and is prepared at any time while in the custody of such officer or at any stage of the proceedings before such Court to give bail, such person shall be released on bail". Where an accused person is involved in a bailable offence, he is to be released on bail as of right. Word "shall" has been used in section 496, Cr. P. C. It is laid down in section 497 (1), Cr. P. C. That "when any person accused of any non-bailable offence is arrested or detained without warrant by an officer-in-charge of a police-station or appears or is brought before a Court, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years". A person accused of an offence punishable with death or imprisonment for life or imprisonment for ten years cannot be released on bail if there appear reasonable grounds for believing that he has been guilty of such an offence because word "shall" has been used in the latter part of section 497(1), Cr. P. C. In offenses 'othee than punishable with death or imprisonment for life or imprisonment for ten years, the Court has been given the discretion d it the accused >n bail as word "may" has been used in the first partsectio 497(1), Cr. P.
C. It is provided in section 497(2), Cr. P. C. That "if it appears to such officer or Court at any stage . Of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry, into his guilt, the accused 'hall, pending such inquiry, be released . On bail," when the case of an accused person falls under section 497(2), Cr..P. C., he has to be relased on bail as of right because word "shall" has been used therein. Powers have been given under section 497(5), Cr. P. C. To cancel the bail of the accused, but the question for determination is whether such power can be exercised in a case where bail is allowed under section 497(2), Cr. P. C.
For the reason that the accused is tampering with the prosecution evidence. It has to be borne in mind as to whether to an accused person under section 496, Cr. P. C. Can be cancelled on the ground that the accused is tampering with the prosecution evidence. In such situation, the answer would he in the negative, the reason being that the accused is to be released on bail as of right and not as a concession. If the accused who commits bailable offence, tampers with the prosecution evidence, his bail cannot be cancelled on this ground. He may be liable for contempt proceedings or other remedies open under the law. Similarly, when bail is allowed to an accused person under section 497(2), Cr. P. C.9 his bail cannot be cancelled on the ground that he as tampering with the prosecution evidence becaus he is allowed bail as of right and not as concession. His bail can only be cancelled if after recording some evidence. The Court is of the opinion that there appear reasonable t,ounds for believing that he is guilty of a non-bailable offence. The powers of cancellation of bail under section 497(5), Cr, P. C. Have been given to meet such situation.
5. Even on merits, I am not persuaded to agree with the learned counsel for the petitioner that there was sufficient material for the cancellation of bail. The petitioner has placed on record three pound release receipts dated 12-12-1976, 1742-1976 and 31-1271976, whereby Fara! Dad, Mehdi Khan and Hakim Ali P. Ws, got the cattle released. It was nowhere mentioned in those receipts as to who had taken the cattle to the cattle-pound. The respondents had produced: tvo certificates issued by Secretary, Union Council, Khohar, to prove that Muhammad lnayat and Muhammad Fatal had not impounded the cattle to the cattle-pound. The respondents had also filed counter-a davit which was to the effect that they had not tampered with the prosecution evidence A cross-complaint had also been fil against Sardar Khan petitioner-complainant, Shahalam, Mehdi P. Ws. And others under sections 148, 307, 326/149, P. P. C. And the said accused were summoned through non- bailable warrants for cotmmitting offence under sections 148, 307/149, P. P. C. The petitioner did not lodge any report at the police station that the accused were tampering with the prosecution evidence. The police had taken up security proceedings against both the parties on 19-12-1976 and it was a proper course for the Police Officer because after the release of the respondents on bail, there could be an apprehension of breach of peace. The petitioner failed to make out a case for the cancellation of the bail of the respondents.
6. For the masons stated above, I do not find any force in the petition and dismiss if. d&missed.