2013 PLP 1059 (SCMR)

IJAZ AHMED CHAUDHRY, J.

This petition for leave to appeal has been filed for the grant of bail after arrest to the petitioner in case F.I.R. No. 78 registered on 26-2-2012 for the offence under section 302/34, P.P.C. at Police Station Sundar, Lahore.

2. Brief facts of the case are that Salim Masih, complainant, lodged a report with the police to the effect that his son Imran Masih aged about 24/25 years, who was Working in Ihsan Sons Private Ltd. at Manga Bypass, Raiwind Road, Lahore, on 25-2-2012 had gone to Bhai Pheru along with his family members and on the night they returned home but his son did not return till morning. Worrying about his son, the complainant along with his other sons Shafique Masih and Adnan Masih started search; and on 26-2-2012 at 9-00 a.m. when they reached in the agricultural land of Rana Jamil Ahmad in the area of Sultanke they found dead body of Imran Masih who was fired upon at his head. The complainant did not name any accused in the F.I.R., however, on the same day in supplementary statement, the petitioner was named as an accused for the offence under section 302(b), P.P.C.

3. Learned counsel for the petitioner contends that bail application of the petitioner has been dismissed by the learned High Court on the ground that his previous application was dismissed as withdrawn on 5-12-2012; whereas fresh application can be filed and considered as the grounds urged by the petitioner were not taken into consideration by the High Court at the time of disposal of earlier application. Referring to the cases (i) Ali Hassan v. The State (2001 SCMR 1047) and (ii) Muhammad Riaz v. The State (2002 SCMR 184) learned counsel contended that in both these cases this court held that the application can be filed afresh if the application was withdrawn and grounds were not pressed. Learned Additional Prosecutor-General has opposed this petition on the ground that in a recent judgment in the case titled Muhammad Siddique v. The State of (Criminal Petition No. 896-L of 2012) this court has categorically held that second application can only be filed on the fresh ground and not on the grounds which were taken and were available at the time of withdrawal of the application.

4. We have heard the arguments of the learned counsel for the parties and have gone through the record.

5. Learned High Court has dismissed the bail application of the petitioner on the ground that earlier application filed by him was dismissed as withdrawn vide order dated 5-12-2012. In the case of The State through Advocate-General, N.-W.F.P. v. Zubair and 4 others (PLD 1986 SC 173) it was held by this Court that the grounds which were available at the time of withdrawal of the earlier application shall be deemed to have been considered and dealt with and the second application can only be filed on the fresh ground. The relevant portion is reproduced as under:-- "

8. It might be useful to mention here 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. We may also point out, with respect to the learned Judge, who dealt with the second bail application that the mere fact that the learned Judge who had rejected the first bail application of the respondents with the observation that as far as the remaining petitioners (the respondents herein) 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 applicant's counsel before him and that the same had not found favour with him. It may be pointed out, with great respect that 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. We are of the view that in the present, case the learned Judge who dealt with the second bail application had, in fact embarked on a review of the order of the learned Judge who had earlier dismissed the first bail application.

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 grounds which were available at the time of the disposal of the earlier application. Relevant portion from the said judgment is reproduced hereinbelow:-- "In such circumstances it is apparent on the face of record that the ground of similarity of role and rule of consistency was available to the petitioner at the time of filing first application for suspension of sentence but the learned Judge has totally ignored it. From the tenor of impugned order it appears that the learned Judge of the Lahore High Court while suspending the sentence of respondent No.2 has not exercised discretion in a proper and judicious manner rather has not at all adverted to the guidelines laid down in Zubair's case (supra)." Thus the latest view of this Court is to be followed and the learned High Court has rightly dismissed the application which could only be entertained on the fresh grounds, hence, this petition being without merits is, hereby, dismissed and leave is refused. MWA/A-10/SC Petition dismissed.