P L D 1988 Karachi 69 (PLP)

This is an application moved on behalf of the applicant for bail, who is facing trial before the Sessions Judge West, Karachi for offences punishable under Article 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979. The first bail application bearing No. 1032 of 1987 was rejected by this Court on merits, while the second bail application bearing No. 1135 of 1987 was rejected as not pressed.

2. It is contended by Mr. Jalaluddin Baloch learned counsel for the applicant that offences under sections 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979 are not cognizable as provided under Article 16 of the said Order. Article 16 of the said Order provides as under:‑‑

16. Cognizance of certain offences.‑‑ (1) The following offences shall be cognizable, namely:‑ an offence punishable under Article 3; and (b) an offence punishable under Article 4, Article 8 or Article 11, if committed at a public place. (2) "

3. The plain reading of this Article would show that offences under Article 3 is cognizable, whereas offence under Article 4 is cognizable only if committed at a public place.

4. Mr. Jalaluddin Baloch learned counsel for the applicant, contends, that word 'and' is written after semi‑colon' in sub‑clause (a) and, therefore, words 'if committed at a public place would be applicable to both sub‑clauses (a) and (b).

5. I am afraid, I cannot agree with him. If that would be the intention of Legislature, then there would be no necessity to put these Articles in separate clauses. Subsection (1) in such a casa would have provided that offences punishable under Articles 3, 4, g or 11 are cognizable if committed at a public place. The very construction of this sub‑Article shows that clause (a) of the sub‑Article is separate from clause (b) of the sub‑Article and the words if committed at a public place" would be applicable only to the Articles mentioned in clause (b).

6. Mr. Zaheer Ahmed Qureshi learned counsel appearing for the State contends that once prior bail application had been rejected on merits, fresh application cannot be entertained again unless there are fresh grounds. In support of his contention, he has relied upon the case of Saleh Muhammad v. The State 1983 S C M R 341 wherein their Lordships have held that "bail application once rejected by High Court on merits, fresh application on merits not to be entertained unless repeated request be made on the grounds not available at the time of first application".

7. Mr. Jalaluddin Baloch learned counsel for the applicant contends, that the ground raised by him is a legal ground and was not taken by him in earlier applications. It is not denied that this ground was not available to the applicant at the time, when the previous application was moved, but the ground was not raised.

8. As already pointed, the applicant is not only facing trial finder Article 4 of the Prohibition (Enforcement of Hadd) Order, 197‑,, but is also facing trial under Article 3 of the said Order, which is cognizable. Unless some evidence is recorded, which clearly shows that no case under Article 3 has been made out, his application on this ground cannot be entertained especially, when the ground which was earlier available to him, was not taken in earlier applications .

9. Mr. Jalaluddin Baloch, learned counsel for the applicant further contends, that now he has produced the rent agreement which shows that applicant was not in possession of the premises from where the 'Heroin' is alleged to have been recovered. Again the same objection would be applicable, that this ground, though available, was not pressed in the earlier application. As such I reject this bail application. M.B.A./Y‑13/K Application rejected,