2006 PLP 2923 (YLR)

KHAWAJA MUHAMMAD SHARIF, J.

Learned counsel for the petitioner submits that earlier application of petitioner was dealt with by my learned brother Asif Saeed Khan Khosa, J. and that he withdrew the said application for the reasons that, he wanted to further document this petition and learned Judge had also observed that same in an open Court. He further submits that injury on the person of the complainant is on non-vital part of the body, that offences alleged against the petitioner do not fall within the ambit of section 497(1), Cr.P.C., that section 10/11 of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979 had been added in the year 2005. Learned counsel had referred to the judgment of learned Judge Family Court and also reconciliation proceedings, which are at page 36 and then, the suit for dissolution of marriage at page 35 of this petition. He submits that he is behind the bars for the last 11 months but there is no progress in the trial, that case of the petitioner is one of further inquiry falling under subsection (2) of section 497, Cr.P.C. and he is entitled for the grant of bail.

2. On the other hand, learned counsel for the State assisted by learned counsel for the complainant submits that petitioner was absconder, he remained fugitive from law about 20 months, that offence falls within the ambit of section 497(1), Cr.P.C., that he withdrew the earlier application for the reasons that when the learned Judge was going to dismiss the application of the petitioner, he withdrew the same after arguing the same at a very great length.

3. I have heard learned counsel for the parties at a very great length. This application has been marked to me by Honourable Chief Justice for the reasons that my learned brother Asif Saeed Khan Khosa, J. is heading a Special Division Bench for the last about two months, which is exclusively hearing Murder References and no other matters are being fixed before my said learned brother, who had disposed of the earlier application of the petitioner on 22-12-2005 vide Criminal Miscellaneous No.8883/B of 2005 and that order is reproduced below for the just decision of this case: "After arguing the matter at some length the learned counsel for the petitioner wishes to withdraw this petition for the time being. This petition is therefore, disposed of as having been withdrawn." First of all I will take up the arguments of learned counsel for the petitioner regarding suit for dissolution of marriage, reconciliation proceedings and the judgment passed" by Judge Family Court. All the documents show that those were much prior in time, then, the order of learned Judge from where the bail was declined and in this regard it was held by Full Bench of the Honourable Supreme Court of Pakistan in a case titled as The State through Advocate-General v. Zubair and 4 others (PLD 1986 SC 173) that:-- "The second or the subsequent bail application to the same Court shall lie only on a fresh ground, namely a ground which did not exist at the time when the first application was made. If a ground was available to the accused at the time when the first bail application was filed and was not taken or was not pressed, it cannot be considered as a fresh and made the basis of any subsequent bail application. The mere fact that the Judge who had rejected the first bail application with the observation that as far as the remaining petitioners are concerned no case had been made out for their release on bail, does not mean that the application had not been disposed of on merits. It must be assumed that he had considered all the pleas or grounds raised by the application's counsel before him and that the same had not found favour with him. The notion that each contention raised before the Court in a bail application must be dealt with separately or repelled by recording elaborate reasoning is totally misconceived. " The bare perusal of above-said citation shows that all these grounds were available to the petitioner at time of hearing of first bail petition so the same could not have- been taken in the subsequent application. Even the above-mentioned order of my learned brother Asif Saeed Khan Khosa, J. shows that it was not stated before him that learned counsel wanted to place on record further documents and he wanted to withdraw the said-application, so this argument of learned counsel is totally against the record. Moreover, petitioner while armed with fire-arm caused an injury on the arm of the complainant, he remained fugitive from law about 20 months and section 324, P.P.C. falls within the ambit of section 497(1), Cr.P.C. All these factors' show that he is not entitled for the grant of bail coupled with the fact that offence falls within the prohibitory clause of section 497(1), Cr.P.C., therefore, this petition is dismissed. H.B.T./M-467/L????????????????????????????????????????????????????????????????????????????????? Bail refused.