Fresh grounds

2024 SCMR 209 SUPREME-COURT Judicial Precedent

S. 497Constitution of Pakistan, Art. 185(3)Bail application dismissed as withdrawnSubsequent/second bail application, filing ofFresh groundsScope

Present criminal petition for leave to appeal had been filed against the impugned order of the High Court wherein it was recorded that the petitioner's counsel did not press the (bail) petition in order to approach the Supreme Court

As per counsel of petitioner (accused) this statement was made because earlier the matter had come before the Supreme Court in another petition which was disposed of by recording that petitioner's counsel did not press it for the time being; and that a fresh ground had accrued to the petitioner on which bail was sought

Held, that if a fresh ground had become available to the petitioner prior to the passing of the impugned order then counsel should not have withdrawn the petition, but insisted that the petition be decided on merits

Legal position on the present issue was by now well settled by the Supreme Court in the cases reported as Nazir Ahmad v. State (PLD 2014 Supreme Court 241) and Muhammad Aslam v. State (PLD 2015 Supreme Court 41)

At present stage counsel for petitioner stated he did not press present petition as he wanted to avail an alternate remedy

Accordingly present petition was dismissed as withdrawn.

2024 SCMR 28 SUPREME-COURT Judicial Precedent

S. 497Constitution of Pakistan, Art. 185(3)Bail application dismissed as withdrawnSubsequent/second bail application, filing ofMaintainabilityFresh groundsScopeSecond bail petition repeating the same grounds that were earlier taken is not competent

Moreover, the grounds raised by an accused in a subsequent bail application which were available at the time of filing of the earlier petition could also not be treated as fresh grounds nor urged for the purposes of seeking the same relief

If the ground on which bail has been sought subsists when a bail petition is withdrawn then such a ground can also not be taken again

However, the exception to this rule is in the case of entitlement of bail on statutory grounds (of delay in conclusion if trial).

2023 PLD 648 SUPREME-COURT Judicial Precedent

S. 497(1), third provisoConstitution of Pakistan, Arts. 9, 10A & 14Second bail application/petitionMaintainabilityFresh groundsScope

Delay in trial that occurs after rejection of first bail application on statutory ground of delay in conclusion of trial

Delay in the conclusion of the trial that occurs for no fault of the accused in the year following the rejection of his bail application on the statutory ground of delay, is to be considered a "fresh ground", not earlier available to him, for entertaining his second bail application, within the meaning and scope of that term.

2022 SCMR 326 SUPREME-COURT Judicial Precedent

S. 497Constitution of Pakistan, Art. 185(3)Subsequent/second bail petition, filing ofFresh groundsScope

Accused can maintain a subsequent bail petition, at post-arrest stage, only on the strength of a fresh ground, accrued after dismissal of his first plea (for bail)

Ground earlier available but abandoned cannot be received as a fresh ground and, thus, consequences of withdrawal of a bail petition, made at any stage of hearing, cannot be quantified nor viewed as simpliciter and as such does not allow space for a second attempt in the absence of a newly accrued ground.

2022 PLD 112 SUPREME-COURT Judicial Precedent

S. 497Withdrawal of first bail petition without any argumentsSecond bail petition, filing ofFresh groundsScope

Withdrawal of an earlier bail petition before addressing any argument on the merits of the case, does not preclude filing of a subsequent bail petition for the same relief on the same grounds before the same court.

2017 MLD 464 PESHAWAR-HIGH-COURT Judicial Precedent

S. 497Penal Code(XLV of 1860), Ss. 302, 324 & 34Qatl-i-amd, attempt to commit qatl-i-amd and common intentionBail, refusal ofSecond application for post-arrest bailFresh groundScope

First application for post-arrest bail filed by accused before the High Court was dismissed as not pressed after arguments on merits by counsel for accused at some length with request for passing direction for expeditious conclusion of the case within specified period

Second application for bail filed by accused before the High Court, on the ground of delay in conclusion of the trial, was not maintainable

Bail was refused in circumstances.

2017 CLC 466 ISLAMABAD Judicial Precedent

S. 20Civil Procedure Code (V of 1908), S.11 & O.II, R.2Arbitration proceedingsFresh groundRes judicata, principle ofScopePetitioner sought referring the dispute to arbitrator for decisionRespondent raised the plea that application was barred by principle of res judicataValidity

Petition seeking reference to arbitration of disputes and differences which had not arisen prior to the institution of earlier arbitration proceedings, were not barred under the principle of res judicata and O.II, R.2, C.P.C.

Arbitration was a time saving device and parties to arbitration proceedings were expected to adhere strictly to time lines

If the respondents did not come up with a 'sufficient cause' in their reply or failed to file a reply within the time stipulated by court, the court was to assume that there was no cause or reason not to refer matters in dispute between parties to arbitration

No formal order closing right of respondent to file reply was required under special law and Court once satisfied that respondents, despite having notice/knowledge of application under S.20 of Arbitration Act, 1940, had not filed a reply, ought to refer the matter to arbitration in terms of arbitration agreement and S.20(4) of Arbitration Act, 1940

Application under S.20 of Arbitration Act, 1940, was to be adjudicated upon expeditiously and should be kept pending for the least possible time

High Court appointed sole arbitrator and referred the matter to him

Application was allowed in circumstances.

2015 PLD 41 SUPREME-COURT Judicial Precedent

S. 497Second/subsequent application for post-arrest bail, filing ofFresh groundsScope

First post-arrest bail application filed by accused before the High Court was dismissed as withdrawn after arguments by counsel for accused at some length

Second bail application filed by accused before the High Court did not disclose any fresh ground for his admission to bail, thus in view of the law declared by the Supreme Court in the case of Nazir Ahmed and another v. The State and others (PLD 2014 SC 241), second bail application was not maintainable

Appeal was dismissed accordingly.

2015 PLD 66 SUPREME-COURT Judicial Precedent

Ss. 497 & 200Subsequent bail application, filing ofFresh groundsScopeFirst bail application dismissed as not pressedSecond bail application dismissed as withdrawn after 15 minutes of argumentsEffect

Dismissal of a bail application as having been withdrawn after arguing the case on merits amounted to dismissal of the bail application on merits of the case, and a subsequent application for bail could only be filed and entertained if the same disclosed any fresh grounds for such relief, i.e. a ground which was not available till the dismissal of the earlier application for bail.

2014 SCMR 304 SUPREME-COURT Judicial Precedent

Ss. 426 & 497Penal Code (XLV of 1860), S. 302(b)Qatl-e-amdApplication for suspension of sentence dismissed as withdrawn or dismissed for non-prosecutionSubsequent application for suspension of sentence filed before the same courtFresh groundsScope

Accused and co-accused were convicted and sentenced by Trial Court under S. 302(b), P.P.C., against which they filed appeals before the High Court

Co-accused filed application for suspension of his sentence, which was allowed and he was enlarged on bail

Accused filed his first application for suspension of sentence on the ground that role ascribed to him was similar to that of co-accused, however said application was dismissed for non-prosecution

Accused filed second application for suspension of his sentence on the same ground of similarity of role and rule of consistency, but it was dismissed as withdrawn

Accused filed his third application for suspension of sentence which was allowed by the High Court on the rule of consistency since role ascribed to accused was similar to that of co-accused

Legality

Ground of similarity of role and rule of consistency was available to accused at the time of filing his first application for suspension of sentence

High Court while suspending sentence of accused had not exercised discretion in a proper and judicious manner and passed impugned order in violation of the law laid down in the case "The State through Advocate-General N.-W.F.P. v. Zubair and 4 others (PLD 1986 SC 173)", which provided that subsequent bail application to the same court shall lie only on a fresh ground which did not exist at the time when first application was made; that if a ground was available to accused at the time when first bail application was filed and was not taken or was not pressed, it could not be considered a fresh ground and made the basis of any subsequent bail application

Impugned order passed by High Court was set aside and bail granted to accused was cancelled.

2014 PLD 241 SUPREME-COURT Judicial Precedent

Art. 188Criminal Procedure Code (V of 1898), S. 426

Review petition for expunction of adverse remarks against a Judge of the High Court contained in a judgment of the Supreme Court, dismissal of

Inconsistency, extraneous considerations and colourable exercise of discretion by a Judge

Scope

Second/subsequent application for suspension of sentence, filing of

Fresh grounds

Scope

Trial Court sentenced accused to imprisonment for life

Accused filed his first application for suspension of sentence before the High Court but same was dismissed for non-prosecution

Accused filed his second application for suspension of his sentence before the petitioner

Judge of the High Court, which after arguments at some length was dismissed as withdrawn

Accused filed his third application for suspension of sentence before the same petitioner-Judge containing same grounds as in the previous two applications, but it was not filed through the original counsel who had filed and represented accused in the earlier two applications but was filed through a different counsel and this time the attempt was successful and petitioner-Judge, who had dismissed the second application of the accused for the same relief, suspended sentence of accused and released him on bail

Supreme Court set aside order passed by petitioner-Judge and cancelled bail allowed to accused by observing that discretion exercised by the petitioner-Judge while passing the impugned order appeared to be somewhat colourable because after dismissal of second application for suspension of sentence bearing the same ground, the only difference in the accused's third application for the same relief was a different counsel for the accused

Petitioner-Judge filed present review petition seeking expunction of said observations

Held, petitioner-Judge had dismissed accused's second application for suspension of sentence as having been withdrawn after the counsel for accused had addressed arguments on the merits but had failed to convince the petitioner-Judge for grant of the desired relief, but through his third application filed through a different counsel for the same relief and based upon the same facts and grounds the desired relief had been extended to accused by the same petitioner-Judge

Such inconsistency of approach adopted by petitioner-Judge prompted and compelled, the Supreme Court to record observations against him

Observations made by the Supreme Court regarding the petitioner-Judge had not been made with reference to his wrong decision on the law and facts of the case but they were based squarely upon his inconsistency in the matter which inconsistency, created an impression regarding an extraneous consideration coming into play

Principles of consistency and propriety demanded that if the facts and the grounds were the same and they were valid and sufficient for granting the desired relief then petitioner-Judge ought to have allowed accused's second application and if the said relief was not due on the same facts and grounds then petitioner-Judge ought to have been consistent and he should have dismissed the third application as well

Supreme Court in such peculiar circumstances of the case could reasonably entertain an impression that the exercise of discretion in the matter by petitioner-Judge was "somewhat colourable"

Engaging the services of a different counsel by accused for his third attempt for the same relief on the same facts and grounds and being successful in such attempt was a matter which ostensibly provided fodder to an impression about an extraneous consideration coming into play and the same seemingly reflected adversely upon the petitioner-Judge's conduct

Petitioner-Judge brought on record copies of seven bail applications decided by him in the past wherein after hearing the arguments of the accused persons' counsel at some length on merits of the case, he had dismissed the bail applications as withdrawn, but allowed bail to the same accused persons through their subsequent applications for the same relief filed on the basis of the same facts and grounds within a few weeks or months of dismissal of the earlier applications

Such conscious pattern being followed by the petitioner-Judge could not be approved and it showed that in the first round he refused the desired relief to an accused person but in the second round the same facts and grounds were found to be valid and sufficient for the same relief

Such pattern was not understandable and question was as to what could be the factual or legal justification for adopting such a pattern

Review petition for expunction of adverse remarks against petitioner-Judge contained in judgment of the Supreme Court was dismissed in circumstances.

2014 PLD 241 SUPREME-COURT Judicial Precedent

S. 426Second/subsequent application for suspension of sentence, filing ofFresh groundsScopeFirst application for suspension of sentence dismissed for non-prosecutionSecond application dismissed as withdrawn after arguments by accused's counsel at some length

Third application for suspension of sentence, containing same grounds as previous two applications, allowed and sentence of accused suspended

Legality

All grounds raised by accused in his third application for suspension of his sentence were already available to him at the time of filing of his first and second applications for suspension of sentence

Said grounds had in fact been mentioned by him in his first and second applications and, thus, were not fresh grounds, and could not be taken or urged by him or on his behalf for the purposes of his third application seeking the same relief, particularly when the second application filed by him had been dismissed as having been withdrawn after his counsel had argued the matter "at some length" but had remained unable to convince the Judge

Illustration.

2014 YLR 928 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 497Second bail application, filing ofFresh groundsScope

Dismissal of first bail application on merits or as withdrawn synchronized with exhaustion of all grounds available, whether pressed or not, and subsequent/second bail application would lie only on a fresh ground, which arose after dismissal of first/previous bail application.

2014 PCrLJ 653 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 497Bail petitionFresh groundsScopePost-arrest bail petition dismissed by High Court by attending the merits of the caseSubsequent bail petition in the same case filed before High Court without accrual of any "fresh grounds"Effect

Where no fresh ground accrued to the accused (at the time of filing subsequent bail petition) to get a different conclusion, bail petition would be dismissed.

2013 SCMR 1524 SUPREME-COURT Judicial Precedent

S. 497Bail application dismissed as withdrawnSubsequent bail application, filing ofFresh groundsScope

Where an earlier (bail) application was dismissed as withdrawn, the second/subsequent (bail) application could only be filed on any fresh ground and not on the same grounds which were available at the time of disposal of earlier (bail) application

Grounds which were available at the time of withdrawal of earlier (bail) application shall be deemed to have been considered and dealt with and second (bail) application could only be filed on fresh ground(s).