2012 P Cr (PLP)

SYED MUHAMMAD KAZIM RAZA SHAMSI, J.

The petitioner Akbar Ali by filing instant criminal miscellaneous application under section 497(5), Cr.P.C. seeks cancellation of post-arrest bail granted to Jamshad Ali, respondent No.1, by the learned Addl. Sessions Judge, Lahore vide order dated 18-4-2011.

2. Briefly stated the facts of the case are that the petitioner lodged case F.I.R. No.676, dated 30-8-2010 against respondent No.1 under section 489-F, P.P.C. with Police Station Mozang, Lahore with the allegation that he had given Rs.45 lacs to respondent No.1 for supplying the milk, which he supplied for five months only whereafter he stopped the supply. On checking the account a sum of Rs.30 lacs found outstanding towards respondent No.1 regarding which a demand was raised in lieu of which respondent No.1 issued three cheques, which were dishonoured subsequently. Accordingly, above referred criminal case was lodged against respondent No.1.

3. It is pointed out by the learned counsel for the petitioner that bail applied by respondent No.1 was declined by the learned Allaqa Magistrate, Lahore, whereafter respondent No.1 filed two successive post arrest bail petitions before the learned Additional Sessions Judge, Lahore but the same were withdrawn. Thereafter third application was filed, which was dismissed by the learned Additional Sessions Judge on 29-3-2011 (incorrectly written as 29-3-2012 in the order of the learned Additional Sessions Judge). It is further stated that after seven days of the dismissal of said bail application another bail application before the same Court was filed by respondent No.1 seeking his release on bail, which was allowed by the learned Addl. Sessions Judge vide order impugned in the instant petition.

4. It is contended by the learned counsel for the petitioner that the earlier application of respondent No.1 was dismissed on merits, as such second application before the same Court and acceptance thereof amounts review of order by the learned Court, which is not permissible under the law. He further argued that when the first petition of respondent No.1 was dismissed on merits then there was no fresh ground available to him for seeking his release on bail through the second application but the learned Court without adverting to this fact had illegally granted bail to respondent No.1. Further argued that withdrawal of earlier two applications by respondent No.1 would amount to decision of petitions on merits, thus third application dismissed by the Court could only be maintainable, if any fresh ground is available. He has further commented upon the conduct of respondent No.1 in prosecution of the bail applications as well as instant petition by submitting that in the instant petition respondent No.1 intentionally avoided to appear in this Court and this Court in order to procure his attendance had adopted coercive measures as such respondent No.1 is not entitled for any concession. In this connection, learned counsel has placed reliance upon the cases of Sono Khan v. Sikandar and another (2000 PCr.LJ 614), Muhammad Rizwan v. The State and 3 others (2007 PCr.LJ 78) and Noraz Akbar v. The State and another (2011 PCr.LJ 852).

5. Conversely, learned counsel for respondent No.1 countered the arguments of the learned counsel for the petitioner by submitting that earlier bail petition of respondent No.1 was dismissed by the learned Additional Sessions Judge on 29-3-2011 on technical ground noting down the conduct of respondent No.1 regarding withdrawal of his earlier two applications, thus the decision of the Court cannot be treated as the one pronounced on merits. He elaborated his arguments and contended that the bail granting order clearly shows that since earlier petition of respondent No.1 was decided on technical ground and not on merits, as such, there is no need to canvass fresh ground for seeking post arrest bail from the same Court. Added further that simpliciter withdrawal of earlier two applications by respondent No.1 does not amount decision on merits. Thus fresh application, could be filed without asserting fresh ground. He further pointed out that the challan in the case has been submitted in the Court in which the trial Court has taken cognizance by framing the charge and the case is now fixed for recording of prosecution evidence. Learned counsel submitted that in these circumstances at this stage when the trial of the case is in progress the practice of recalling of bail granting order has been deprecated by the apex Court. Reliance has been placed on the cases of Muhammad Riaz v. The State (2002 SCMR 184), Ali Hassan v. The State (2001 SCMR 1047), Wajid Ali v. The State (2009 PCr.LJ 275), Mian Abdul Rafique v. Riaz ud Din and another (2008 SCMR 1206) and Gohar Rehman v. Muhammad Tahir and another (2001 SCMR 815).

6. I have considered the submissions made by the learned counsel for the parties and examined the record as well as case-law cited at the bar. The ratio of the cases cited by the learned counsel for the parties is precisely noted hereunder:-- (i) In Sono Khan and Muhammad Rizwan case (supra) the Hon'ble Karachi High Court held that the grounds which were available at the time of first application even if not considered it will be presumed that the same were considered and rejected and second bail application would lie when there is new and fresh ground arose after dismissal of the first bail application. (ii) In the case of Noraz Akbar (supra) this Court observed that the first bail petition filed by the accused had been withdrawn by his counsel after arguing the case at some length. Fresh application for bail would not lie unless the some fresh ground for bail is available. (iii) Case of Muhammad Riaz (supra) provides that simple withdrawal of bail application would not be a bar in moving second petition. Same view has been adopted by this Court in the case of Wajid Ali (supra). (iv) Cases of Haji Mian Abdul Rafique and Gohar Rehman, deprecate practice of cancellation of bail in matters where trial in a case is in progress.

7. The ratio of cases cited at serial No.(i) and (ii), is that when an earlier bail petition filed by an accused person is dismissed on merits then second bail application would only be maintainable if any fresh ground is available to him. These observations of the Court in the cases, are based upon the judgment of the apex Court recorded in the case of 'The State through Advocate-General N.-W.F.P. v. Zubair and 4 others (PLD 1986 SC 173). There is no cavil to proposition that second bail application would only be maintainable if it is filed on the grounds, which were not available to the petitioner at the time of dismissal of his first application on merits but the matter in hand is some what on different footing than the one noted in the afore-noted precedent cases.

8. In the instant case the question is whether the decision of the learned Additional Sessions Judge dated 29-3-2011 regarding dismissal of first bail application of respondent No.1 was on merits or the application was dismissed on technical ground and further that the order dated 18-4-2011 passed on the subsequent application by the learned Additional Sessions Judge would amount to review of its earlier order. In this connection the order dated 29-3-2011 is to be seen to determine the first question. The order of the learned Court is reproduced hereunder for correctly appreciating the same:-- "

9. No doubt the offence against the accused/petitioner does not fall within the ambit of prohibitory clause and in alternative it is also punishable with fine only yet in my humble view there is sufficient ground to disentitle the petitioner from the concession of bail. His first bail application was rejected by the trial Court vide order dated 27-12-2010. After that he moved two bail application above referred before the Court of Mr. Muhammad Ajmal Hussian, the then learned Addl. Sessions Judge, Lahore which were dismissed as withdrawn vide order dated 26-1-2011 and 2-3-2011. Subsequently, he has not moved the learned trial Court for his release on bail on any fresh ground and again filed this third bail application before this Court. Under these circumstances, this petition is dismissed ......"

9. The bare perusal of the order reveals that the Court found that respondent No.1 was entitled for the grant of bail but the same relief was refused to him due to his conduct of filing successive applications before the same Court and that the remedy was not availed by respondent No.1 before the Court of first instance. Although this observation of the Court that the remedy of bail was not availed before the Court of first instance is factually incorrect because the earlier two applications, which were dismissed as withdrawn were filed before the learned Additional Sessions Judge as such the third one was to be filed in the same Court instead of approaching the Court of first instance but for the purpose of disposal of this petition I am not going into such niceties.

10. Now adverting to question whether decision dated 29-3-2011 was on merits or not, said order is found to be self-explanatory which if is read with reference to its context it shows the intention of the Court of not deciding petition on grounds noted therein, rather Court proceeded to invoke equitable principles of law i.e. one must approach Court with clean hands. Thus it is not difficult to hold that the bail petition of respondent No.1 was not decided by the learned Additional Sessions Judge on merit, rather found respondent No.1 disentitled for the concession of bail due to his faulty conduct. At this juncture, learned counsel for the petitioner submitted that withdrawal of the earlier two applications would amount to dismissal of the bail applications on merits and in this connection learned counsel has relied upon the case of Noraz Akbar (supra). This contention of the learned counsel cannot be accepted as withdrawal simpliciter was not considered a decision of the bail petitions on merits. In holding this view, I am fortified by the ratio laid down in the case of Muhammad Riaz (supra), wherein the apex Court while taking note of this situation had observed that withdrawal of bail application simpliciter would not mean that it was dealt with on merits or on grounds pressed. It is further observed that such withdrawal would not be a bar in moving second bail application, which must be heard by the same Judge(s)/Bench allowing withdrawal of the first bail application. The same view was followed by this Court in the case of Wajid Ali (supra) wherein it was held that mere withdrawal of the bail application would not amount that it was decided on merits.

11. Another contention of the learned counsel for the petitioner that the order dated 18-4-2011 amounts to review of order dated 29-3-2011 is also misconceived for the reason that the earlier bail petition, as observed above, was not decided by the Court on merits whereas the second petition was decided by the Court independently on merits and on the grounds pressed therein. There is no bar for raising the grounds mentioned in the application upon which the impugned order was passed by the learned trial Court for the reason that these grounds although were noted down by the learned trial Court in bail refusing order dated 29-3-2011 but no decision was given by it thereon.

12. It has now been settled by the precedent cases that in very exceptional circumstances a bail granting order can be recalled and this practice should not be encouraged particularly in the matter in which the trial before the Court is in progress. In this connection the cases of Haji Mian Abdul Rafiqaue and Gohar Rehman (supra) lend support to this view.

13. In this backdrop, I see no reason to recall the order dated 18-4-2011 wherein respondent No.1 was admitted to bail by the learned Additional Sessions Judge, Lahore. Resultantly, instant petition having no merits is dismissed. M.W.A./A-52/L Application dismissed.