2014 PLP 378 (SCMR)

IFTIKHAR MUHAMMAD CHAUDHRY, C.J.

This petition for leave to appeal is directed against order dated 7-6-2013 whereby the criminal miscellaneous filed by the petitioner has been dismissed.

2. The learned counsel stated that judgment in the case of Amir Masih v. The State and another (2013 SCMR 1059) perhaps was distinct in view of the earlier judgments in the cases of Ali Hassan v. The State (2001 SCMR 1047), Muhammad Riaz v. The State (2002 SCMR 184) and Criminal Petition No.896 of 2012 = Muhammad Siddique v. The State (2014 SCMR 304). He has pointed out that in the case of Amir Masih (supra), this court has held as under:-- "As far as the case-law cited by the learned counsel for the petitioner in (i) Ali Hassan v. The State (2001 SCMR 1047) (ii) Muhammad Riaz v. The State (2002 SCMR 184), is concerned, the latest case which has been disposed of on this point is Muhammad Siddique v. The State (Criminal Petition No.896-L of 2012 = 2014 SCMR 304) where it has been held by this Court that if earlier application is dismissed as withdrawn, the second application can only be filed on any fresh ground and not on the same grounds which were available at the time of the disposal of the earlier application."

3. It may be noted that in the case of Amir Masih (supra), an application for suspension of sentence was under examination. However, in the case of Muhammad Siddique, it has been held that if earlier application has been dismissed as withdrawn, the second application can only be filed on any fresh ground and not on the same ground, which was available at the time of disposal of the earlier application. He contended that whereas another Bench of equal number of Hon'ble Judges of this Court way back in the year 2001, in the case of Ali Hassan took a different view.

4. Similarly, in the case of Muhammad Riaz (supra), relating to filing of second application after withdrawal of the earlier one, it has been held that "withdrawal of a bail application simpliciter does not mean that the same was dealt with on merits or on the ground pressed". Therefore, in our view, there is no bar in moving second application after withdrawal of the first one, but not independently the second bail application should be heard by same judge or Judges who had allowed withdrawal of the first application.

5. The learned Prosecutor-General when confronted with the law laid down/discussed in various judgments noted hereinabove, contended that the questions which have been cropped up in the instant case are required to be resolved by a larger bench of this Court by pronouncing an authoritative judgment. Similar was the view of the learned counsel for the complainant.

6. From the perusal of the facts of the case, as noted in the impugned order relating to the competency of the second application and in view of judgment in the case of Amir Masih (supra) as well as the points emerged from the other 2 judgments and from one un reported judgment which has also been cited in the relevant paragraph of the Amir Masih's case, it is considered appropriate to constitute a larger Bench to examine:-- (i) As to whether in view of the ratio decidendi of the cases of Ali Hassan and Muhammad Riaz (supra), the view taken in the case of Muhammad Siddique and Amir Masih is required to be re-examined by a larger Bench of this Court to settle the proposition about the competency of the second application if the first one had been withdrawn and no decision on merits had been given or the facts had also not been adjudicated upon. (ii) As to whether the same principle would not be applicable in the case relating to the suspension of sentence, as has been noted hereinabove. (iii) As to whether the judgment in the case of Muhammad Siddique in Criminal Petition No. 896-L of 2012 = 2014 SCMR 304, whereby suspension of sentence has been declined as the earlier application was dismissed, is in consonance with the law laid down in the judgments of Ali Hassan and Muhammad Riaz (supra) or otherwise and if so to what effect.

7. In view of above, leave to appeal is granted to consider, inter alia, the above questions. The office is directed to put up a note for constitution of a larger bench, as early as possible, as in the instant case, the question of liberty of the petitioner in terms of Article 9 of the Constitution is involved. MWA/M-60/SC Leave granted.