1989 P Cr (PLP)

I have heard the learned counsel for the applicant and the learned A.A.‑G. for the State. It was contended by the learned counsel for the applicant that the only allegation against the present applicant was that of 'Lalkara' and therefore the case of the applicant requires further inquiry. That the co‑accused Khamiso and Lakhoo have been granted bail by this Court and the case of the present applicant is identical to that of Khamiso and Lakhoo. That the previous bail application filed by the applicant was not decided on merits. The learned A.A.‑G. for the State has opposed the grant of bail to the applicant on the ground that in addition to the allegation of instigation. It was also mentioned in the F.I.R. that when complainant caught the handle of hatchet of main accused, applicant Noor Hassan and co‑accused Lakhoo and Khamiso came running and tried to snatch the hatchet, he was thrown on the ground, and thereafter they snatched the hatchet from him and ran away alongwith the main accused. He has further contended that the co‑accused were granted bail on the additional ground of illness and infirmity and therefore it cannot be said that the case of the applicant also stands on the same footing. That there were no fresh grounds after the previous application of the applicant was withdrawn and therefore he was not entitled to bail. I have considered the contentions of the learned counsel. The F.I.R. shows that the present applicant and co‑accused Khamiso and Lakhoo had instigated main accused Fazal that the deceased should not be spared. It further shows that: "The accused Fazal again tried to hit Mohammad Fazal Rahu, but the complainant caught :he handle of the hatchet. On this accused Lakhoo, Khamiso and Noor Hassan came running and tried to snatch the hatchet from him. They threw him on the ground and snatched the hatchet from him and thereafter all the four accused ran away." From the above reading of the F.I.R. it is clear that in addition to the allegation of 'Lalkara' there was a further overt act assigned to the present applicant as well. The order granting bail to accused Khamiso and Lakhoo shows that: "The medical certificates issued by Medical Officer show that the applicant Khamiso was aged about 57 years and was suffering from bilateral pulmonary tuberculosis. He is bodily weak and infirm. He need proper regular treatment of his illness and isolation. The certificate issued in respect of applicant Lakha Dino shows that he was about 59 years of age, and was suffering from chronic asthamatic bronchitis and is bodily weak and infirm. He needs proper treatment of his illness." Reliance was also placed on the case of Abdul Aziz v. Bashir Ahmed P L D 1966 SC 658, Finally it was observed in the above order that: "Looking to the accusation made against the applicants, the medical certificates regarding their ailment and condition of health, and the case law I am of the considered view that the applicants are entitled to bail." The above observations made in the order granting bail to accused Khamiso and Lakhoo clearly show that the bail was granted to them not only on merits but there was additional ground of ailment and infirmity. The applicant had moved an application for bail alongwith the co‑accused before this Court but the same was, withdrawn in respect of the applicant and the main accused Fazal, and there is no fresh ground mentioned in the bail application, nor such ground has been argued before me. In the case of Advocate‑General, N.‑W.F.P. v. Zubair and others PLD 1986 SC 173 it was observed by their Lordships of the Supreme Court that: "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." In view of the above discussion and the factual as well as legal position I am of the considered view that no case for bail has made out and the application is accordingly dismissed. However, the applicant will be entitled to repeat his bail application after the complainant is cross‑examined and two eye‑witnesses are examined. S.A./N‑129/K Bail refused.