P L D 2013 Lahore 540 (PLP)

SHAHID HAMEED DAR, J.

The petitioner seeks bail after arrest in case F.I.R. No.326, dated 4-5-2012, under sections 302, 34 P.P.C., registered at Police Station Ghaziabad, Lahore.

2. Precisely the prosecution case as narrated by Faizan Shaukat (complainant) is that he received a telephone call from his mother at about 12-00 noon on 4-5-2012 regarding sickness of his younger sister, on receipt whereof, he returned to his house after fetching medicine for his sister; he along with his mother, disabled sister and younger brother was present at his house on the said day when accused Aslam Dogar alias Kadi Dogar armed with pistol, Bahadar Dogar (petitioner) armed with pistol, Mst.Abida armed with sota and Bashir alias Bhola armed with pistol trespassed on his house and mounted an attack which resulted into death of his father Muhammad Shaukat, who was fired at by accused Kadi Dogar; his disabled sister beseeched the accused to spare them but they would not listen to her; the accused fled the scene after committing the crime. The motive behind the occurrence was that the accused intended to forcibly occupy the house of the complainant.

3. Learned counsel for the petitioner submits that the petitioner has not been assigned any role by the complainant nor there exists any evidence to connect him with the commission of offence alleged; the petitioner underwent physical remand for many days but nothing was recovered at his instance; Mst.Abida Bibi whose role is at par with the accused petitioner has been granted post-arrest bail by the learned trial court; the petitioner's case calls for further probe into his guilt, therefore, he may be set at liberty.

4. On the other hand, learned Additional Prosecutor General Punjab assisted by learned counsel for the complainant opposes with the contention that the instant petition is second on the subject and in absence of any fresh ground, it is not maintainable as envisaged by judgment, titled "The State through Advocate General, N.-W.EP v. Zubair and 4 others" reported as (PLD 1986 SC 173); the petitioner immediately after the occurrence committed an offence of extortion which led to registration of case F.I.R. No.558, dated 4-5-2012, under sections 324, 386 P.P.C. at Police Station North Cantt., Lahore; on finalization of investigation, the petitioner having been found involved in the occurrence, was placed in Column No.3 of the challan; the petitioner is a hardened and desperate criminal as he is involved in almost a dozen cases of alike nature.

5. After hearing learned counsel for the parties and perusing the record, it is observed that the first bail application (Criminal Miscellaneous No.16471-B of 2012) of the petitioner was dismissed as withdrawn vide order dated 22-11-2012 by this court and with it, all the grounds available to him on the said day extinguished, necessitating a fresh ground to be hinted at by the accused-petitioner, if he would ever think of repeating an identical petition before this court for release on bail. This is what the requirement of ratio of the illustrious judgment of the apex court, titled "The State through Advocate General, N.-W.F.P. v. Zubair and 4 others" (PLD 1986 SC 173) is and this view-point has been upheld again, in a recent judgment passed on 3-1-2013 in Criminal Petition No.896-L of 2012 titled "Muhammad Siddique v. The State and another", by the Hon'ble Supreme Court of Pakistan. Though, it was so held by the apex court, on an earlier occasion, that a subsequent/second bail application of an accused even in absence of any fresh ground, was maintainable if the earlier one on the subject was not pressed on merits and dismissed as withdrawn as per case-law titled "Muhammad Riaz v. The State" (2002 SCMR 184) yet, the latest view, in terms of judgment dated 3-1-2013, as mentioned above, must prevail. It was not a case of withdrawal simpliciter when first bail application of the petitioner was dismissed as the matter had been argued at some length by his learned counsel. It cannot be believed that the learned counsel withdrew the first bail application, without having sensed the outcome thereof. Learned counsel for the petitioner has vehemently argued that more than three months time-period has elapsed since passing of first bail dismissal order and in the meanwhile many-a-days have dawned and many a nights fallen which necessarily gives rise to a fresh ground, lending a sense of maintainability to the instant petition, which, I am afraid, is a mere misconception as sun-rise or sun-set, moon-rise or moon-set, day-break or night-fall, arrival of icy winter or departure of simmering summer, does not give rise to any fresh ground, for holding the second bail application maintainable under the law. To encapsulate, a fresh ground is one which shoots into existence after rejection of earlier bail application either on merits or having not been pressed. The request of the petitioner for withdrawal of his first bail application would haunt all his subsequent endeavours for release on bail, till he comes across a fresh ground in real sense, which he is badly bereft of at the moment. Besides, the allegation of house trespass against the petitioner, being armed with pistol along with his armed cronies, followed by callous murder of Muhammad Shaukat (deceased) despite beseechment of a disabled sister of the complainant, are the crucial circumstances, which cannot be overlooked easily.

6. For the reasons supra, I am not inclined to accept this application which is dismissed accordingly. MWA/B-9/L Bail refused.