2018 P Cr (PLP)

KHADIM HUSSAIN M. SHAIKH, J.

By this order I intend to dispose of the instant criminal bail application based on Crime No.327/2013 for offence under sections 302, 34, P.P.C. of Police Station Rizvia Society Karachi, after his second bail application, repeated before the learned trial Court, after dismissal of his first bail application vide order dated 20.08.2016, has been rejected vide order dated 10.09.2016.

2. Briefly the facts of the case are that on 12.12.2012 at 11:20 p.m. complainant Muhammad Rehan lodged his FIR at Police Station Rizvia Society Karachi, inter alia, stating therein that he is resident of House No.366, Jafria Imam Bargah, Gul Bahar Karachi and on that fateful day at 08:30 p.m. the complainant was having meals in his house, when on hearing gunshot reports, he came outside of his house, and found his brother Muhammad Tasleem Zai, who was fired at by some unknown persons, lying injured in his shop, who then succumbed to his injuries and died there. Complainant's brother had no enmity with any person. Some unknown persons due to some annoyance by firing from weapons has murdered his brother Muhammad Tasleem Zai, who was a Government employee, working in the office of Sindh Government Chemical Examiner. After investigation co-accused Syed Naeem Hyder alias Bara was sent up with the challan showing the applicant/accused along with another as absconders. After the incident the applicant allegedly had gone underground and was recently arrested in this crime by the police. Earlier bail application filed on behalf of the applicant was rejected by the learned III-Additional Sessions Judge Karachi Centre, vide order dated 20.08.2016, setting the applicant at liberty to move afresh after examination of the complainant and P.W. in this case. However, within few days after rejection of his earlier bail application, second bail application on behalf of the applicant was moved before the learned trial Court, which has been rejected vide order dated 10.09.2016, hence this application.

3. Learned counsel for the applicant has mainly contended that the name of the applicant does not find place in the FIR; that the alleged incident is shown to have taken place in shop of the deceased, but no independent person from the locality came forward to become witness of the incident; that the applicant is innocent and he has been falsely implicated in this case due to sectarian rivalry, per him, the applicant/accused belongs to shia sect and whereas the deceased Muhammad Tasleem Zai, belonged to Dev Band sect. He, therefore, prays that the applicant may be released on bail. He has placed his reliance on the cases of Zahid Shah v. The State (2008 PCr.LJ 1677), Shafique Hussain v. The State (2007 PCr.LJ 60), Tahir Ali Shah v. The State (2008 PCr.LJ 564), Muhammad Yasin v. The State and another (2011 YLR 788), Abdul Hameed v. The State (2005 MLD 508) and Muhammad Khokhan alias Rafiq alias Khokha and another v. The State (2002 PCr.LJ 602).

4. Conversely, learned A.P.G. has contended that the learned trial Court had already considered all the grounds urged by the learned counsel for the applicant at the time of hearing of his first bail application; that there was no fresh ground for repeating the bail application on behalf of the applicant before the trial Court; and, that during investigation it has come on record that subject crime was committed on sectarian motive as both the parties belong to different rival sects. She, therefore, prays that this bail application, may be dismissed.

5. I have considered the arguments advanced by the learned counsel for the applicant as well as the learned A.P.G. and have gone through the material available on record.

6. Admittedly, the first application moved on behalf of the applicant for his release on bail before the trial Court was rejected vide order dated 20.08.2016; that without waiting for examination of the complainant and P.W. as was observed in the order dated 20.08.2016 by the learned trial Court, the second bail application was moved on behalf of the applicant, seeking his release on bail without any fresh ground; that the crimes committed on sectarian rivalries, are always committed in an organized manner, and, as such the evidence of the nature, which is normally available in an ordinary criminal case, may not be available; that the applicant was not named in the FIR by the complainant, which prima facie suggests that there was no intention of the complainant to falsely implicate the applicant in this crime and, there is also no question of settlement of personal vengeance, rather it has come on record that the parties belong two rival sects and clash between the said two religious sects is not un-common; needless to say that the people, feeling themselves unsafe, due to fear, threats and lack of interest by the police, are avoiding to become witnesses against the culprits involved in the offences committed on sectarian motives; that at this stage of considering question of bail, deeper appreciation of the evidence is un-warranted; and, that the offence, with which the applicant is charged, falls within the prohibitory clause of section 497, Cr.P.C., which disentitles him to the grant of bail.

7. Furthermore, the learned trial Court had already rejected the first bail application filed on behalf of the applicant after having considered the arguments of the learned counsel, prosecution case and over all facts and circumstances of the case on merits, and there was no fresh ground for moving second bail application and as such in my humble view the second bail application, manifestly was misconceived and not entertainable. Reference can be made to the case of The State v. Zubair and 4 others (PLD 1986 SC 173), wherein the Hon'ble Supreme Court of Pakistan has held that:- "

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 are 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." In case of Muhammad Riaz v. The State (2002 SCMR 184), the Hon'ble Supreme Court of Pakistan has held that:- "...... the situation would be different if the earlier bail application was decided on merits and in such case while deciding the subsequent bail application, of course, the ground which was not urged although the same was available would not constitute a fresh ground justifying the filing of second bail application."

8. The cases relied upon by the learned counsel for the applicant being distinguished on facts and circumstances, are not applicable to the case one in hand, in as much as in case of Zahid Shah (supra), the applicant had remained in custody for last about five years and he was also suffering from Hepatitis-C, in the case of Shafique Hussain (supra), initially N.C. report was lodged by the father of the deceased stating that the deceased had committed suicide due to exchange of hot words with him, in case of Tahir Ali Shah (supra), the applicant needed surgical intervention, which facility was not available in jail hospital, in case of Muhammad Yasin (supra), the applicant in that case was implicated through supplementary statement of the complainant after more than one month of the incident, in case of Abdul Hameed (supra), the panel of police officers had declared the accused innocent and the police had moved for discharge of the accused and in case of Muhammad Khokhan alias Rafiq alias Khokha (supra), a dead body was found by the police and initially the report under section 174, Cr.P.C. was lodged and then SHO recorded an FIR after the postmortem and the applicant Karim alias Shuhabuddin was alleged to be in jail since two months prior to the commission of the offence, and manifestly, none of the cases cited by the learned counsel for the applicant involved sectarian motive for commission of the offence.

9. In view of what has been stated above, I am of the considered view that the applicant has failed to make out his case for grant of bail. Accordingly, the bail application in hand is liable to be dismissed.

10. Above are the reasons of short order announced by me on 23.12.2016, whereby the bail application was dismissed.

11. It needs no reiteration that the observations made hereinabove, are tentative in nature only for the purpose of deciding bail application, and the learned trial Court shall decide the case on merits without being influenced by the aforementioned observations. However, the applicant shall be at liberty to move afresh for his release on bail after the evidence of complainant and P.W. is recorded as was observed by the learned trial Court while rejecting his first bail application vide order dated 20.08.2016. WA/S-42/Sindh Bail refused.