2004 P Cr (PLP)

Mian Ahmad Mehmood for Petitioner. Farooq Ahmad for the State. . Rae, Muhammad Anwar for Respondent No.2. Through this petition the petitioner seeks cancellation of bail granted to respondent No.1 by the learned Magistrate, Khanewal vide order, dated 11‑10‑2003 in case F.I.R. No.223 registered under sections 337‑F(i)/337‑A(ii)/337‑F(ii)/34. P.P.C. at Police Station Khanewal Kohna.

2. Brief facts of the case are that petitioner lodged F.I.R. No.223 of 2003 at Police Station Khanewal Kohna against Rana Ghulam Sabir, Abdul Rehman and one unknown person wherein it was alleged that Abdul Rehman respondent No. 1 while armed with hatchet gave hatchet blow to Rifat son of petitioner hitting on his head, backside of chest and left arm. Similarly unknown person gave a blow on the head of Muhammad Nasir another son of the petitioner. On the basis of these allegations instant F.I.R. was lodged against the accused persons. Respondent No.1 Abdul Rehman filed an application for grant of bail before the learned Magistrate, Khanewal, which was dismissed, vide order, dated 7‑7‑2003. Thereafter the learned Additional Sessions Judge, Khanewal dismissed his bail application vide order, dated 25‑7‑2003. Respondent No.1 approached this Court vide Criminal Miscellaneous No.2188/B of 2003 for grant of bail which was dismissed as withdrawn on 25‑9‑2003. After the dismissal of his bail application which was withdrawn for the time being from this Court respondent No.1 filed another bail application before the learned Illaqa Magistrate, which was accepted, and the bail was allowed to him vide order, dated 11‑10‑2003. Being aggrieved by the aforesaid bail granting order the petitioner filed an application under section 497(5), Cr.P.C. for cancellation of bail before the learned Sessions Judge, Khanewal but the same was dismissed as withdrawn on 6‑12‑2003 due to compromise between parties. Now through the instant petition the petitioner has challenged the bail granting order passed by the learned Magistrate, Khanewal.

3. Learned counsel appearing on behalf of the petitioner contends that the learned Magistrate was not justified in allowing the bail petition on the ground, that the challan of the case had been submitted; that according to the learned Magistrate this was a fresh ground available to the petitioner and on the basis of same the learned Magistrate has granted the bail without taking note of the fact that the post‑arrest bail of the respondent No. 1 had been dismissed up to the, level of the High Court, that the bail petition filed by respondent No. 1 was withdrawn for the time being from this Court that means he was supposed to file an application again before this very Court on the availability of any other fresh ground or after some new development.

3. Learned counsel for the State assisted by the learned counsel for the respondent No.1 has strongly opposed the contention raised by the learned counsel for the petitioner and submits that respondent had not suppressed any fact before the learned Magistrate. Respondent had mentioned in the bail application that his application was withdrawn for the time being from this Court, whereas learned Magistrate has granted bail on the availability of fresh ground that now the challan has been submitted in the Court of competent jurisdiction. Treating this as a fresh ground, learned Magistrate has granted bail to respondent No.1. Further submits that now the challan has been submitted and bail cannot be cancelled. Further submits that for cancellation of bail strong grounds are required which are lacking in this case.

4. I have heard the learned counsel for the parties and also perused' the record carefully. I have also gone through the judgments of the superior Courts cited at the Bar. The august Supreme Court, in case reported as PLD 1989 SC 585 had held that where the trial of the case was to commence within a fortnight cancellation of bail at such stage would not be proper. In 1999 YLR 2635 it was held by the High Court, Peshawar that strong and exceptional grounds are required for cancellation of bail granted by the competent Court of jurisdiction. There is no bar in seeking relief of bail on the basis of fresh ground, which was not available at the time of previous bail application. In order to explain the contention `fresh ground' learned counsel for the respondent has relied on 1996 PCr.LJ 810 wherein it was held that fresh grounds means the grounds which did not exist at the time of moving the first bail application and if a ground available to accused was not taken, or pressed at the time of first bail application; the same could not be considered as a fresh ground for any subsequent bail application. After due consideration of all the judgments cited at the Bar and going through the orders passed by the different Courts at different stages I am of the view that although there is no bar of repeating the bail application but that can only be done on the availability of afresh ground. In the case in hand bail petition of the respondent No. 1 was dismissed by the learned A Magistrate on merits thereafter again the same was dismissed by the learned Additional Sessions Judge, Khanewal thereafter application was filed before this Court on the basis of the grounds available to the respondent No. 1 but was withdrawn from this Court for the time being, therefore, bail of respondent No. 1 was dismissed as withdrawn on 25‑9‑2003. In my view the respondent No. 1 had a right to approach this Court again provided any fresh ground was available to him. Instead of filing the petition before this Court respondent No.1 has adopted a short course and has again approached the learned Magistrate who has granted the bail within the span of 15 days on the ground that now the challan has been submitted in the Court. I am of the considered view that the bail application before the learned Magistrate was not competent. No, fresh ground was available to respondent No.1 to move the Magistrate again. Learned Additional Sessions Judge has already dismissed his bail application on merits and the bail was dismissed as withdrawn from this Court. In these circumstances, while accepting this petition, the bail granting order of the learned Magistrate, dated 11‑10‑2003 being unsustainable in the eye of law, illegal and unwarranted is set aside. However, respondent No.1 may move this Court for the same relief if so advised. H.B.T./A‑63/L Petition accepted.