2015 Y L R 730
[Balochistan]
Before Muhammad Kamran Khan Mulakhail, J
FAREEDULLAH ---Applicant
Versus
MUZAFFAR ALI ---Respondent
Criminal (cancellation) Bail Application No.470 of 2014, decided on 22nd December, 2014.
Criminal Procedure Code (V of 1898) ---
----S. 497(5) ---Penal Code (XLV of 1860), Ss.302 & 34--- Qatl-i-amd, common intention---Bail,
cancellation of ---Observations by Trial Court, while granting bail to accused, had shown that
question of variance in the addresses of the decease d and prosecution witnesses, noted in their
CNIC's, and the question that no overt act was assigned to accused, were very much available,
while dismissing his earlier bail applications ---Said grounds whether agitated or not, were also
available to the defence before High Court, when bail application was simply withdrawn by
accused as not pressed on merits ---Concession of bail, was not available to accused at a
subsequent stage, on the strength of said two grounds ---Discretion exercised by the Trial Court
in granting bail to accused, appeared to be somewhat colourful exercise of judicial discretion ---
No fresh ground was available to accused for grant of bail ---Law, though did not impose any
embargo on successive bail applications, but same could only be enter tained on availability of
fresh ground only and not otherwise ---Impugned order granting bail to accused being not
sustainable, was set aside, and bail granted to accused was cancelled, in circumstances.
Jalal-ud-Din v. The State 2000 YLR 2228; Muhammad Afzal v. State 2012 SCMR 707;
Mehtar v. State 2000 PCr.LJ 60; Irfan Khan v. State 2009 MLD 120; Zulfiqar Ali v. State 2011
YLR 2270; Liaqat Ali v. State 2006 YLR 3114; Shoukat v. State 2010 MLD 1137; Umar Hayat
v. State 2009 PCr.LJ 1058; Muhammad Nawaz v. State 2002 SCMR 1381; Muhammad Asghar
Khan v. Irfan Sharif 2014 YLR 623; Khan Bahadur Khan v. State 2014 YLR 628 and Amanullah
Shah v. State PLD 1996 SC 241 ref.
Muhammad Siddique v. The State 2014 SCMR 304 and The State through Advocate
General, N.W.F.P. v. Zubair and 4 others PLD 1986 SC 173 rel.
Amir Muhammad Lehri for Applicant.
Muhammad Dawood Kasi for Respondent.
Liaquat Ali for the State.
Date of hearing: 12th December, 2014.
ORDER
MUHAMMAD KAMRAN KHAN MULAKHAIL, J. ---This criminal bail cancellation
under section 497(5) Cr.P.C. is directed against the order dated 26th September, 2014, whereby
the respondent No.1 was admitted to bail by the Additional Sessions Judge -V, Quetta (the "trial
Court"), in case FIR No.82 of 2013 lod ged with Brewery Police Station, Quetta, on the
application filed by the applicant/complainant under Section 302 read with Section 34 of the
Pakistan Penal Code, 1860 ("P.P.C.").
2. The facts in brief, as narrated in the FIR are that on 25th April, 2013, complainant
Faridullah lodged a report with Brewery Police Station, Quetta, stating therein that he along with
his children, resides at Railway Housing Society, Brewery Road, Quetta and is serving as Sub-
Engineer in the C&W Department. His younger brother , namely Riaz Hussain also works as
Junior Clerk in the Civil Secretariat, Quetta. On the fateful day, after duty hours his brother was
coming on his motorcycle towards home, whereas, the complainant along with his elder brother,
namely Abdul Khalil held on their way behind his younger brother in their vehicle. At around
01:00 p.m. when they reached near Jehangir Plaza, Brewery Road, where a motorcycle came out
from a street, on which two accused persons namely Imdad Ali son of Abdul Razaq and Muzafar
son of Mehboob Ali, by caste Marri, residents of Sibi, were seated, they intercepted his brother,
whilst accused Imadad Ali got down from his motorcycle and made consecutive firearm shots, to
which, he sustained injuries, while the accused persons fled away tow ards Joint Road. In the
meanwhile the police mobile also reached on the spot, they with the help of police took their
injured brother to the hospital, but he succumbed to his injuries on his way to the hospital. The
motive behind the occurrence was disclos ed an enmity between the parties. Consequently, the
aforesaid case was registered.
3. Mr. Amir Muhammad Lehri, learned counsel for the applicant/ complainant contended
that so far, as many as six witnesses have already been examined by the prosecution an d only the
investigation officer was remained to be examined, when bail application was entertained by the
trial Court, whereby through the impugned order the private respondent/accused was admitted to
bail. He referred to the order dated 20- 2-2014 passed by the trial Court, whereby the pre -arrest
bail was rejected to the private respondent. He further referred to the order dated 16- 6-2014, by
which the post -arrest bail was declined. He stated that thereafter, the bail application bearing
Criminal Bail Application No.295 of 2014 was moved before this Court, which too was
dismissed as withdrawn. He asserted that earlier bail application of the private respondent was
not entertained and concession of bail thereto was declined to him, even before this Court, and
the same was dismissed as withdrawn. Thereafter, no occasion was available to the learned trial
Court to entertain the plea of bail at belated stage when the case was likely to be concluded. He
referred to the operative part of the impugned order and sta ted that the variance in residential
addresses noted in the CNIC of the deceased, and the witnesses, the trial Court considered the
same as doubtful. He further contended that learned trial Court had opined that no specific role
attributed to the private r espondent, but accused was shown as rider of the motorcycle, therefore,
no overt act is looked to have been played by the accused and bail was granted to him on basis of
further inquiry. He urged with vehemence that the observations made by the trial Court amounts
to render a pre -trial judgment while deciding the plea of bail and it seems that the whole case has
been decided. He asserted that the manner and procedure adopted by the trial Court is highly
objectionable and grounds pleaded at subsequent stage were available to the private respondent
at the time of his earlier bail applications, therefore, the order impugned, being perverse against
the dictates of justice and precedents rendered by the Hon'ble Supreme Court, is not sustainable,
hence requires to be set aside and the bail granted to the private respondent/accused shall also be
cancelled, in the interest of justice. The learned counsel placed reliance upon the following
cases: --
Jalal-ud-Din v. The State, 2000 YLR 2228
Muhammad Afzal v. State , 2012 SCMR 707
Mehtar v. State, 2000 PCr.LJ 60
Irfan Khan v. State, 2009 MLD 120
Zulfiqar Ali v. State, 2011 YLR 2270
Liaqat Ali v. State, 2006 YLR 3114
Shoukat v. State, 2010, MLD 1137
Umar Hayat v. State, 2009 PCr.LJ 1058
Muhammad Nawaz v. State, 2002 SCMR 1381
4. Mr. Muhammad Dawood Kasi, learned counsel for the private respondent/ accused
contended that earlier bail application before this Court was not pressed on merit and same was
withdrawn. The subsequent bail application ent ertained by learned trial Court was moved on the
basis of fresh ground; therefore, he was rightly admitted to bail. He contended that the provision
of section 497(5), Cr.P.C. is not punitive in nature and the rule of prudence recognizes the rule of
bail but not a jail. He added that when bail is granted to the private respondent on basis of further
inquiry, meaning thereby, the doubts floating on the surface of the prosecution's case were
considered at the touchstones of the principle of further inquiry and same cannot be reversed
without any cogent and convincing reasons. He further stated that once the bail is granted to the
accused/ respondent on basis of further inquiry, the cancellation thereof shall require very strong
and convincing grounds. He assert ed that neither the concession of bail has been misused nor any
substance or apprehension of repeating the offence has been shown nor any attempt to tamper the
prosecution's evidence has so far been pleaded, therefore, in view of dictum laid down by the
Hon'ble Supreme Court of Pakistan, the bail granted to the private respondent cannot be
cancelled on basis of surmises and conjectures followed by presumption of guilt, hence,
application being devoid of merit, deserves to be dismissed. The learned counsel has also placed
reliance upon the following cases:
Muhammad Asghar Khan v. Irfan Sharif, 2014 YLR 623
Khan Bahadur Khan v. State, 2014 YLR 628
Amanullah Shah v. State, PLD 1996 Supreme Court 241
5. Mr. Liaquat Ali, Advocate, appearing for the Sta te, endorsed the arguments advanced by
the learned counsel for the applicant. He too urged for setting aside the impugned order and to
cancel the bail granted to the private respondent.
6. I have heard the learned counsel of respective parties at reasonable length and have also
gone through the record. The perusal whereof reveals that, initially when the post -arrest bail was
declined by the learned trial Court, the case was at initial stage and only statement of the
applicant/ complainant was recorded. Ho wever, when the application for grant of bail was filed
before this Court, the statement of P.Ws.2 and 3, were also recorded. It looks that the learned
counsel for the private respondent while feeling himself unable to make out the case for grant of
bail h as withdrawn the same as not pressed. Thereafter, three more witnesses were examined and
at present only the statement of investigation officer is left to be recorded. The learned trial Court
while granting bail to the private respondent made the following observations, therefore, it would
be helpful to reproduce the relevant portion from the impugned order, which reads as follows: --
"The question of resident/address of deceased also requires further inquiry. Admittedly
the applicant/ accused was not att ributed any role for making fire at the deceased, but he was
shown as rider of the motorcycle. There exist previous enmity between the parties and
enmity/grudge always plays double edged weapon in such kind of cases. From bare and tentative
assessment of t he record, lit shows the case of applicant/accused falls under the ambit of further
inquiry as envisages under section 497(2), Cr.P.C. "
The referred to observation made by the trial Court shows that the question of variance in
the addresses of the deceased and the prosecution witnesses noted in their CNICs, and the
question that no overt act was assigned to the private respondent, were very much available
while dismissing his earlier bail applications, and these grounds whether agitated or not were
also available to the defence before this Court when the application was simply withdrawn as not
pressed on merit, therefore, at subsequent stage, on the strength of the aforesaid two grounds, the
concession of bail was not available to the private respondent. The discretion exercised by the
trial Court is not only clear violation of the dictum laid down by the Hon'ble Apex Court but has
appeared to me to be somewhat colourful exercise of judicial discretion.
7. The Hon'ble Supreme Court of Pakistan in its la test judgment in the case of Muhammad
Siddique v. The State, (2014 SCMR 304) and another case of Amir Masih v. The State, (2013
SCMR 1059) has cancelled the bail granted to the respondents. Reliance whereof was placed
upon the case of the The State through Advocate General, N. -W.F.P. v. Zubair and 4 others,
(PLD 1986 SC 173). It would be instructive to reproduce the relevant passage from the
judgments rendered in Zubair's case, which read as under: --
"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 me an 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 r espect 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."
The Hon'ble Supreme Court of Pakistan while placing reliance upon Zubair's case (supra)
has also referred the case of Muhammad Siddique v. The State, (Criminal Petition No.896- L of
2012) in which the following observations were made: --
"In such circumstances it is apparent on the face of record that the ground of similarity of
role and rule of consistency was available to the petitioner at the time of filing first application
for suspension of sentence but the learned Judge has totally ignored it. From the tenor of
impugned order it appears that the learned Judge of the Lahore High Court whil e suspending the
sentence of respondent No.2 has not exercised discretion in a proper and judicious manner rather
has not at all adverted to the guidelines laid down in Zubair 's case (supra)."
Thus, the latest view of the Hon'ble Supreme Court of Pakis tan is to be followed. Since
no fresh ground was available to the private respondent and bail granted by the learned trial
Court, on the basis of aforesaid two grounds, were very much available to the accused at the time
of his earlier bail applications. T hough, law does not impose any embargo on successive bail
applications, but the same could only be entertained on availability of fresh ground only and not
otherwise.
8. Thus, in view of above discussion, in the light of dictum laid down by the Hon'ble
Supreme Court of Pakistan, I am of the considered view that the impugned order is not
sustainable. Thus, the impugned order dated 26th September, 2014, passed by the Additional
Sessions Judge -V, Quetta is hereby set aside and bail granted to the private res pondent is
cancelled forthwith.
Copy of this order be sent to the Inspection branch of this Court for information.
However, the observations made hereinabove are meant for disposal of the instant application,
which shall have no bearing on merits of the case.
HBT/9/Bal Bail cancelled.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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