2016 PLP 2788 (YLR)

M. TABASSUM AFTAB ALVI, J.

The supra titled applications have been moved for cancellation of bail granted to accused-respondent, Muhammad Mehtab, by District Court of Criminal Jurisdiction Sudhnoti/Palandri, vide its order dated 20.06.2015.

2. The precise facts forming back ground of Application No.68/2016 are that an FIR bearing No.10/15 was registered against accused-respondent No.1 and co-accused Muhammad Waqar in respect of offences under Sections 10(4), 16-ZHA and 341, 342, 354, 384 and 109 APC at Police Station Tararkhal, on 06.03.2015. The averments of FIR need not to be repeated here for the sake of brevity as the same have sufficiently been incorporated by the Court below in the impugned order. After registration of the FIR, the accused-respondent was apprehended by Police on 15.03.2015. The accused-respondent moved an application for post arrest bail before District Court of Criminal Jurisdiction Sudhnoti/Palandri on 08.04.2015, which after hearing was rejected vide order dated 17.04.2015. After about six weeks the accused-respondent again moved another application for concession of bail before the same Court on 29.05.2015, which was allowed vide impugned order dated 20.06.2015, hence, the instant application by applicant-complainant for cancellation of the same has been moved.

3. Through another Application No.59/2016, victim Tehmina Irshad, by repeating facts of the aforesaid FIR and producing videos and photographs also solicited cancellation of bail granted to accused-respondent through the impugned order dated 20.06.2015.

4. Sardar Javed Nisar, the learned counsel for applicants has filed written arguments, wherein, it is stated that plea of ailment was taken by accused-respondent in his previsous bail application, which was rejected on merit by the Court below vide order dated 17.04.2015, hence, there was no any fresh ground available, in subsequent application which important aspect of the matter was not taken into consideration by the trial Court. It is further maintained that accused- respondent was nominated in FIR along with specific role, hence, his case was falling under prohabitory clause of Section 497(1) of Cr.P.C., therefore, he was not entitled to concession of bail. It is further submitted that in medical report the concerned Doctor never reported that disease of accused-respondent was not cureable in any hospital of the Azad Kashmir, whose report was consisting of complaint of accused-respondent. The learned counsel further submitted that opinion was not given by Medical Board, which was merely an after thought ground, hence, submitted for cancellation of bail granted to the accused-respondent.

5. The accused-respondent was represented by Raja Altaf Khan, Advocate, however, later on the learned counsel left prosecution of the case, therefore, a notice was issued to accused-respondent for arguments. As per report of Process Server, he has gone to Dubai, therefore, no arguments on behalf of accused-respondent could be addressed.

6. After examining written arguments of the learned counsel for applicants, I have perused the impugned order, videos and photographs appended along with the files.

7. A glance perusal of record reveals that against accused-respondent Muhammad Mehtab, and co-accused, Muhammad Waqar, an FIR No.10/2015 in respect of offences under Sections 10(4) 16-ZHA, 341, 342, 384 and 109 APC, was registered at Police Station Tararkhal. As per stance of Tehmina Irshad, on 20.01.2015, at 10.00 am, when she was coming back to home with her husband Muhammad Ghazanfar from Tararkhal towards her village Gahi Banjosa and they reached to Hillan Mohajar Colony, she was removed from vehicle on gun point, along with her husband, by the accused-respondent and Muhammad Waqar, co-accused. It was further averred that her husband was tied-up with cords by the accused who was detained in another room. It was maintained that accused- respondent and co-accused took her in a room where they committed zina-bil-jabbar who also made her nacked videos and photographs. Thereafter accused demanded a sum of Rs.200,000/- and stated that in case victim failed to pay the said amount, her nacked videos and photographs will be displayed on net. It appears from record that accused-respondent who was apprehended by Police on 15.03.2015, moved post arrest bail Application No.69/2015 before the District Court of Criminal Jurisdiction Pallandri/ Sudhnoti, on 08.04.2015, which was rejected vide order dated 17.04.2015. The accused-respondent in the aforesaid application, inter-alia, took specific plea of ailment which was turned down by the Court below through the aforesaid order. As on plea of ailment, bail application of the accused-respondent was already declined by the trial Court, therefore, according to my considered view, no any flesh ground was available to him for bail. It is settled principle of law that subsequent application can be moved only on a fresh ground. The aforesaid point came under consideration in case titled Qazi Zubair-ud-Din v. Qazi Imtiaz Ahmed and another 2003 YLR 102). At page 6 of the precedent case it was observed as under:-- "It is now an admitted position of law that if first bail application is once rejected on merits, the second bail application cannot be filed without fresh grounds or the other grounds which were available at the time of the first bail application but not pressed " The same view was expressed by the Karachi High Court in case titled Sono Khan v. Sikander and others 2000 PCr.LJ

614. At page 618 of the report it was held as under:-- "How and under what circumstances the subsequent bail application would lie and could be granted, this was decided by a full bench of Hon'ble Supreme Court in the famous case of the State v. Zubair and 4 others (PLD 1986 SC 173). It was held, inter alia, that the grounds which were available at the time of first application, even if not considered, it will be presumed that the same were considered and rejected and that the second or subsequent bail application would lie when there is new and fresh grounds aroused after dismissal of the first bail plea. In the instant case, the ground that no recovery was effected from the present accused was available at the time of first bail application. The learned 1st Additional Sessions Judge has noted the fact that at the time of submission of first challan the present applicant was shown as absconder but has not discussed the consequences of such absconcion for considering grant or refusal of bail." The aforesaid point came under consideration before the Hon'ble Supreme Court of Pakistan case titled Ali Sheharyar v. The State (2008 SCMR 1448). At page 1450 of the report it was held as under:-- "

5. After hearing the learned counsel for the parties and going through the record of the case, we are of the considered view that fresh bail application can be moved at a subsequent stage on the grounds which were not available at the time of filing of earlier application and order passed on the subsequent bail application would not amount for review of the earlier order on the bail application as section 369, Cr.P.C. does not apply to such orders." The same view was reiterated by the apex Court of Pakistan in case titled Amir Masih v. The State and another (2013 SCMR 1524). At page 1527 of the report it was observed as follows:-- "

6. As far as the case law cited by the learned counsel for the petitioner in (i) Ali Hassan v. The State (2001 SCMR 1047) and (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) wherein 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 ground which were available at the time of the disposal of the earlier application."

7. The accused-respondent failed to point out any reason whatsoever that why he did not produce any proof/report along with his previous application pertaining to ailment and even concerned Medical Officer never reported that kidney disease accrued to accused-respondent is not curable in any hospital of Azad Kashmir. After examining necked videos and photographs of victim it appears that alleged offence of Zina was prima facie committed by accused-respondent and co-accused with victim while removing her from vehicle, along with her husband, on gun point. A tentative assessment of prosecution evidence connect the accused with the alleged offences. The statement of husband of victim also supported whole prosecution story. The material collected by Police and evidence so far produced by the prosecution is sufficiently connected the accused with the offences, hence, he was not entitled for post arrest bail as such.

8. The crux of above discussion is that concession of bail granted to accused-respondent through the impugned order dated 20.06.2015, is recalled. The aforesaid observations, however, are purely tentative, therefore, while deciding case the trial Court shall not influence from the aforesaid observations. It appears that accused-respondent has disappeared, hence, the trial Court shall ensure to take him into custody, otherwise needful shall be done against his surety. The bail application of co-accused has already been rejected by this Court vide order dated 15.01.2016. The trial Court seized with the matter is directed to complete trial within three months from the receipt of the instant order. The officer is directed to transmit an attested copy of the order to the Court below for compliance. A copy of the order shall be annexed with other relevant file. HBT/9/Sh.C.(AJ&K) Bail cancelled.