2018 PLP 92 (YLRN)

OMAR SIAL, J.

This post-arrest bail application has been filed by the Applicant in Crime No.40/2013 registered under sections 302, 324, 337-H(2), 114, 147, 149, P.P.C. at Police Station Baberloi.

2. The facts of the incident as contained in the FIR are lengthy and as the FIR forms part of the record, the same are not being reproduced here for the sake of brevity.

3. I have heard the learned counsel for the Appellant as well as the complainant. I have also heard the learned DPG and examined the record available with the counsels' assistance. My observations are as follows: i. It appears that on 12-12-2014, the Applicant had filed a post-arrest bail application in this court. This application was withdrawn by him on 31-3-2016 before the same was heard. The first issue that I would like to address is whether the Applicant can raise grounds in support of the current application that were available to him at the time when he withdrew the first bail application. The learned counsel for the complainant and the learned APG have argued that he can not. In support of the argument that the Applicant can not raise a ground that was available to him at the time the first bail application, the learned counsel for the complainant has relied on a judgment of the Hon'ble Supreme Court in Amir Masih v. The State reported at 2013 SCMR 1524. In this case, the Hon'ble Supreme Court has held that if the first bail application is dismissed as withdrawn, then the second bail application will require fresh ground to be agitated. ii. It would be convenient to reproduce the order of this court dated 31-3-2016. The court ordered as follows: "Mr. Ghulam Hyder Daudpoto, advocate associate of Mr. A.R. Farooq Pirzada submits that he has filed a statement dated 30-3-2016 that under instructions he does not press instant bail application with permission to avail remedy before learned trial court. Consequently, instant bail application stands disposed of. However, applicant is at liberty to avail remedy under the law." iii. It is pertinent to mention that the above bail application was not dismissed as withdrawn but was allowed to be withdrawn simpliciter as the Applicant wanted to raise a fresh ground of statutory delay before the trial court. The application was not argued at all by the. Applicant's counsel. In fact, the statement by the counsel for the Applicant was filed a day prior to the hearing of the bail application. In Ali Hasan v. The State (2001 SCMR 1047), the Hon'ble Supreme Court had held that withdrawal of application stmpliciter does not mean that the sane was dealt with on merits or on the grounds pressed. The situation, however, would be different if the earlier bail application was decided on merits and in such case while deciding the subsequent bail application, the ground which was not urged, although the same was available, would not constitute a fresh ground. The Hon'ble Supreme Court in Nazir Ahmed v. The State (PLD 2014 Supreme Court 241) has also held: "Withdrawal simpliciter of an earlier application for bail before addressing or hearing of any argument on the merits of the case does not preclude filing of a subsequent application for the same relief before the same court and its decision by such court on the merits of the case. In all cases of withdrawal of such an application the court must faithfully record in its order as to whether withdrawal of the application had been requested and allowed after addressing and hearing of some or all the arguments on the merits of the case or withdrawal of the application had been requested and allowed before addressing and hearing of any argument on the merits of the case. iv. In view of the above judgments of the Hon'ble Supreme Court coupled with the fact that the court record shows that the bail application was withdrawn prior to being heard or argued at any length, I am of the humble view that the Applicant is entitled in this application to raise the grounds that were available to him at the time he filed the first application. v. I would however like to observe that I am disappointed that the current bail application does not reveal that a previous bail application was filed in this court. In fact, the application states to the contrary. It was left to this court to discover the history of this case. vi. The learned counsel has argued two grounds in support of the bail application. One, that only general allegations have been raised. Two, that the Applicant should be admitted to bail on ground of statutory delay. vii. As regards the first ground raised viz that of general allegations, it is true that the complainant has implicated all the six accused of firing upon the deceased. Deceased Irshad was hit by four bullets whereas deceased Ashfaq Ahmed was hit by five bullets Prima facie, it can not be ruled out at this stage that the bullets fired by all the assailants hit the deceased. viii. As regards the second ground argued i.e. that of statutory delay, the case diaries examined by me reveal that the accused and the complainant party are both responsible for the delay. The accused have kept changing counsel or one or the other defence counsel has remained absent. Similarly several adjournments were granted on account of strikes and other factors. The liability of the delay can not be put exclusively on the prosecution.

4. In view of the above, the Applicant has made out no ground for the grant of bail. Accordingly, the application is dismissed. WA/A-70/Sindh Bail refused.